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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.
BAT v. UK Department of Health [United Kingdom] [May 19, 2016]
The judgment dismissed all grounds of challenge against the UK's standardised (or "plain") packaging regulations. The judgment has significant wider implications because Mr Justice Green carefully considered all the evidence as part of the proportionality analysis, which will be similar to the justification analysis for plain packaging in most other jurisdictions. He was highly critical of the evidence put forward by the tobacco industry and provided a damning critique of individual studies and experts as well as making wider criticisms of the tobacco companies including that they failed to disclose any internal documents about their research or consideration of the impact of plain packaging on their business or smoking rates. He also linked his conclusions to the 2006 judgment of Judge Kessler in USA v Philip Morris Inc et al when she found, upon the basis of comprehensive evidence which included internal documents, that the tobacco companies were well aware of the strong causal nexus between advertising and consumer reaction.
The judge's conclusions on whether plain packaging amounts to an expropriation of the tobacco trade marks; on their claim for compensation; on the relevance of the FCTC and its guidelines; and on the compatibility with the WTO TRIPS agreement all have wider international relevance.
A summary of the key findings that have wider application is in the additional documents.
The McCabe Centre has produced an analysis of the key points for other jurisdictions which can be found here: http://www.mccabecentre.org/downloads/McCabe_Centre_-_Key_Points_on_UK_plain_packaging.pdf
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.
Youth Smoking Prevention Foundation v. Netherlands [Netherlands] [November 09, 2015]
A non-governmental organization sued the Dutch government for violating Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC). Article 5.3 of the FCTC requires Parties to the Convention to protect tobacco control policies from the commercial and vested interests of the tobacco industry. The court ruled that the NGO cannot require the Dutch government to take action in furtherance of Article 5.3 because the Article does not have a direct effect on the Dutch government. Additionally, the court found that Article 5.3’s requirements are not sufficiently clear. However, as a result of the lawsuit, the government created a document clarifying how it will implement Article 5.3.
Recommendation of the European Ombudsman in the inquiry into complaint 852/2014/LP against the European Commission regarding its compliance with the Tobacco Control Convention [European Union] [October 01, 2015]
A non-governmental organization (NGO) complained that the European Commission was violating the Framework Convention on Tobacco Control, which requires parties to protect against commercial and other vested interests of tobacco companies. The European Ombudsman agreed with the NGO that the European Commission’s policies did not provide sufficient transparency about its meetings with tobacco industry representatives. The Ombudsman recommended that the Commission put into place a policy—similar to the policy currently in place by the Directorate General for Health and Food Safety—that requires online publication of all meetings with tobacco industry representatives and publication of the minutes from those meetings.
Dutch Association of CAN v. Netherlands [Netherlands] [October 10, 2014]
The Netherlands is a Party to the Framework Convention on Tobacco Control (FCTC). In 2008, the Netherlands enacted a ban on smoking in public places. In 2011, the government added a limited exception for small cafes with a floor area less than 70 square meters and no staff. A tobacco control organization challenged the small cafe exception as a violation of Article 8 of the FCTC, which requires FCTC Parties to prohibit smoking in all indoor public places. In this decision, the Supreme Court agreed with the lower court that law's small cafe exception violated the FCTC and was illegal. Significantly, the court found that smoke-free requirements of the FCTC were sufficiently detailed to be supreme over a contradictory national law and directly binding within the country.
Love Care Foundation v. Union of India [India] [July 21, 2014]
A non-governmental organization seeking to reduce smoking among Indian youths petitioned the Indian government to adopt plain packaging of tobacco products. The organization argued that attractive packaging is a form of advertisement and sought a rule prohibiting the use of logos, colors, or brand names on tobacco product packaging. After reviewing evidence supporting the impact of a tobacco plain packaging law in Australia and a study of plain packaging in Brazil, the court concluded that plain packaging and health warnings reduce the ability of attractive packaging to mislead consumers about the harms of smoking. The court urged the Indian government to consider the feasibility of implementing the plain packaging of cigarettes and other tobacco products as early as possible.
Dharmendra Kansal v. Union of India [India] [June 03, 2014]
A public interest lawsuit requested that cigarette manufacturers and the Indian government comply with the provisions of the Cigarette and Other Tobacco Products Act (COTPA) regarding tar and nicotine levels. Specifically, the law requires manufacturers to provide the tar and nicotine content of cigarettes on the label. The law also requires the government to set maximum permissible limits for tar and nicotine, which are also to be displayed on cigarette packs. The court said that it did not have the power to compel the government to implement this provision of the law, even though the government had failed to set maximum tar and nicotine levels for cigarettes in the 11 years since the law was adopted. Instead, the court banned the sale of cigarettes in the State of Uttarakhand, effective one year after the date of the decision. The court said that the ban will not take effect if the government prescribes maximum nicotine and tar limits and manufacturers provide this information on their labels. Additionally, the court ordered that all loose cigarettes must be sold with the specified warning label on the cigarette or the packaging, effective six months from the date of the decision.
Ceylon Tobacco v. Minister of Health [Sri Lanka] [May 12, 2014]
The Sri Lanka Ministry of Health adopted regulations requiring tobacco products to contain graphic pictorial health warnings on 80% of the pack. The Ceylon Tobacco Company sued, claiming that the regulations exceed the authority of the Ministry and also violate the company’s intellectual property rights. In this decision the Court of Appeal found that the national tobacco law does provide the Ministry with authority to require pictorial health warnings, not just textual warnings. However, the court reduced the size of the warnings to between 50% to 60% of the cigarette pack in order to give tobacco companies more space in which to display their trademark. The court said that it was balancing the need to protect the health of citizens against the rights of a business to use its trademarks to help identify and sell its products. The court ordered the Ministry to issue new regulations allocating between 50% to 60% of the package for pictorial health warnings.
Philip Morris (Thailand) Limited et al. v. Ministry of Public Health [Thailand] [August 23, 2013]
Tobacco manufacturers brought case to stop the Minister of Public Health from implementing a rule that would expand the size of the combined picture and text health warnings from 55% to 85% of the front and back of cigarette packaging. The tobacco companies argued, among other things, that the Minister lacked the legal authority to make the rule, the rule infringed on their property rights, and that the rule did not meet necessity and proportionality standards under administrative law. The court granted a temporary injunction, preventing implementation of the larger health warnings until the court issues a final decision on the merits of the case.