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Argument: Excessive Delegation of Authority to the Executive

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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;

  • ingredient disclosure;

  • 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. 

Bullitt Fiscal Court et al. v Bullitt County Board of Health [United States] [June 19, 2014]

The Bullitt County Board of Health enacted a regulation for the county prohibiting tobacco smoking in all enclosed public places, in enclosed places of employment, in certain outdoor public places, and in private clubs within the county. The Fiscal Court and eight cities within the county filed a petition against the Board, arguing that the Board usurped its authority. A trial court held the regulation invalid, but the Court of Appeals reversed.

In this decision, the state Supreme Court found the Board exceeded its statutory authority when adopting the smoking prohibition.  

Cancer Society of New Zealand v. Ministry of Health [New Zealand] [September 30, 2013]

The New Zealand Ministry of Health inspected a portion of a casino complex and determined that it constituted an “open area” under the Smoke-free Environments Act. The Cancer Society of New Zealand and other organizations disagreed with the Ministry’s interpretation and asked the Court to review the issue. The Court found that the Ministry’s enforcement agents improperly relied on an “Open Areas Calculator” (a mathematical tool) in determining whether the space was substantially enclosed. The Court found that the Open Areas Calculator was inconsistent with the definition of an “open area” in the law. The Court ordered the Ministry to reconsider whether the area of the casino could allow smoking under the law. 

Mills v. Thompson et al. [United States] [July 12, 2013]

A prisoner sued the Kentucky Department of Corrections claiming that the Department of Corrections’ Commissioner did not have the authority to adopt a tobacco-free policy at adult correctional facilities in the state. The court found that the Commissioner had clear authority under state law to implement a tobacco-free policy in state-run correctional facilities and dismissed the prisoner’s claim.

Ghodawat Pan Masala v. State of Karnataka [India] [June 25, 2013]

A company that manufactures pan masala challenged a government order prohibiting it from manufacturing, selling, or distributing gutkha and pan masala containing tobacco. The court rejected the company’s request for relief from the government order saying that to grant it would harm public health. The court noted that the government does have the authority to issue the order prohibiting the manufacture and sale of gutkha and pan masala containing tobacco. Additionally, the court rejected the company’s argument that it did not have sufficient warning about the order, noting that government enforcement did not take place until nearly a year and eight months after the ban on gutkha and pan masala went into effect.

Rajat Industries v. Union of India [India] [April 25, 2013]

A company that manufactures gutkha sued the government of India objecting to letters sent by the Ministry of Health and Family Welfare to various state governments requesting that they consider banning smokeless/chewing tobacco in the form of gutkha, pan masala, zarda and other chewable products with nicotine. The court dismissed the claim as premature because it does not challenge any bans on gutkha and pan masala, merely the informational letters sent by the government.

Dutch Association of CAN v. Netherlands [Netherlands] [March 26, 2013]

A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters.  In this decision the Court applied FCTC Article 8 to the Dutch law.  The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception.  The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC.  The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.

ASA Adjudication on Gallaher Ltd. (A12-208266) [United Kingdom] [March 13, 2013]

This ruling by the Advertising Standards Authority (ASA) sanctioned Japan Tobacco International (JTI) for misleading advertising for their campaign against plain packaging in the United Kingdom.  The Cancer Research UK, a public health organization, made a complaint about the advertisements of JTI.  The ads claimed that plain packaging was “categorically rejected” and there was “no evidence” of its effectiveness.  The ASA found that both of these claims were misleading and unrepresentative of the true facts.  The ASA ordered JTI and its subsidiary, Gallaher Ltd, to not run the ads again.

Ceylon Tobacco v. Minister of Health [Sri Lanka] [February 22, 2013]

The Sri Lanka Ministry of Health passed a regulation requiring tobacco products to contain graphic pictorial health warnings on 80% of the pack.  The Ceylon Tobacco Company challenged the regulation as ultra vires the authority of the ministry and sought an interim order to stop the implementation of the regulation until their substantive challenge was concluded.  Here the Court of Appeal denied the tobacco company’s request to delay implementation of the regulation.  The court found the regulation was sufficiently clear for implementation.  The court said the timeline of the regulation provided sufficient time for implementation and the balance of convenience supported the Minister.

Taylor v. Manager of Auckland Prison [New Zealand] [December 20, 2012]

In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds.  A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion.  The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).

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