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British American Tobacco Ltd v. Ministry of Health [Kenya] [February 17, 2017]
British American Tobacco appealed a 2016 court decision, which upheld nearly all elements of Kenya’s Tobacco Control Regulations. The appeals court ruled that the tobacco company’s appeal had no merit and affirmed the decision of the lower court. The earlier ruling upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:
- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- graphic health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, and verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.
The appeals court agreed with the lower court that the tobacco company had been given adequate opportunities for participation in the development of the regulations and that the regulations do not violate the tobacco company’s constitutional rights.
NYC C.L.A.S.H. v. New York Office of Parks, Recreation and Historical Preservation [United States] [March 31, 2016]
A smokers’ rights group challenged a state agency regulation that prohibits smoking in certain outdoor areas, including state parks. The court affirmed an earlier decision finding that the agency’s regulation did not violate the constitutional principle of separation of powers. The court concluded that, in adopting the regulations, the agency acted within that authority delegated to it by the state legislature to provide for the health, safety, and welfare of the public in connection with the state park system.
British American Tobacco Kenya Ltd. v. Ministry of Health [Kenya] [March 24, 2016]
British American Tobacco's Kenyan subsidiary filed a lawsuit claiming that Kenya’s Tobacco Control Regulations are unconstitutional. The court ruled against the tobacco company, finding that the process of developing the regulations was lawful and conducted with sufficient participation by the tobacco industry. The court upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:
a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
graphic health warnings;
smoke-free environments in streets, walkways, verandas adjacent to public places;
disclosure of annual tobacco sales and other industry disclosures; and
regulations limiting interaction between the tobacco industry and public health officials.
The court specifically noted that the Tobacco Control Act and Regulations are intended to comply with the Framework Convention on Tobacco Control. Additionally, the court acknowledged the harm caused by tobacco products and stated it would make its decision within the context of a public health system balanced against the commercial rights of the tobacco company.
The court struck down a few minor elements of the regulations, ruling that (1) the tobacco industry is not required to provide evidence of its market share to the government; and (2) that penalties for violation cannot exceed the maximums authorized by law.
The court ruled that the regulations should take effect six months after the date of the decision.
De Bruyn v. Victorian Institute of Forensic Mental Health [Australia] [March 22, 2016]
A patient at an Australian mental health facility sued to block implementation of the facility’s smoke-free policy. The court upheld the smoke-free policy because: (1) it was within the authority of the mental health hospital to adopt the policy; (2) the state tobacco control law did not create a right to smoke in mental health hospitals; and (3) the hospital properly considered the impact that the policy might have on the patient’s human rights, such as the right to dignity. In particular, the court found that the hospital gathered extensive input on policy over a four-year period and that the policy would be implemented along with psychological and other support systems, including nicotine replacement therapy and cessation counseling.
Black v. Secretary of State for Justice [United Kingdom] [March 08, 2016]
A prisoner claimed that smoking should be prohibited inside a state-run prison. The lower court ruled that the national law prohibiting smoking in workplaces also applied to prisons, including state prisons. The Secretary of State for Justice appealed the decision. The appeals court found that the state is not bound by the national law prohibiting smoking in the workplace. Therefore, the prison is not required to implement the smoking ban.
Shoeab Aslam v. Health and Family Welfare [India] [January 07, 2016]
Shoeab Aslam, owner of a hotel business called Cafe and Sheesha Lounge, challenged a November 2015 order issued by the District Magistrate in Indore directing compliance with India's omnibus tobacco control law (COTPA) and its rules on smoking in public places. Mr. Aslam maintained that there cannot be a complete ban on smoking in hotels. The government however noted that the order did not completely ban smoking, but instead permitted the activity in smoking zones. The court took into account earlier judgments from the Supreme Court and the Madhya Pradesh High Court on hookah bars and upheld the order, finding it in consonance with COTPA and its rules.
Bhandari v. Laming [Australia] [October 16, 2015]
A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.
Inversiones Eivissa S.A.C. v. Ministry of Health et al. [Peru] [October 05, 2015]
A company that owns two stores located in Barranco Municipality challenged the validity of a city ordinance and Ministry of Health regulation which define enclosed public spaces. The company argued that the definition contained in the city ordinance and in the Ministry of Health regulation is stricter than the one established by Law No. 29517. In addition, it argued that this definition implied an illegal bureaucratic barrier which affects its commercial freedom. The Lima Superior Court agreed with the plaintiff and authorized the company not to comply with the ordinance or the regulation.
Diamond Enterprises v. State of Karnataka [India] [September 03, 2015]
Diamond Enterprises, owner of a hookah bar, alleges that, contrary to a government requirement, it does not have to obtain a license to serve hookah. The court agreed with Diamond Enterprises. The court observed that, pursuant to India's omnibus tobacco control law, smoking, although restricted, is defined as using tobacco with a wrapper or in any instrument and does not require a license. The court noted that the government could take action if illegal activity was found while monitoring the premises.
Restaurant and Lounge Vyapari Association, Bhopal v. State of Madhya Pradesh [India] [August 21, 2015]
The Restaurant and Lounge Vyapari Association challenged two orders issued by the Bhopal government that sought to prohibit the operation of hookah bars. The court quashed both orders – one on procedural and one on substantive grounds. The court found one order temporary and no longer effective, observing that the statutory scheme authorizing the order contemplated redress of emergency situations and not relief for permanent or semi-permanent problems. The court found the other order too general because it did not reference violations of India's omnibus tobacco control law, COTPA, or its implementing rules. The court however noted that the government could take action against hookah bars if such establishments operated within 100 yards of educational institutions or if smoking occurred outside of smoking areas or places. The court further noted that the government may pass another order regarding hookah bars if another threatening situation emerged. The court however held that repetitive orders are not permitted.