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Nobleza Piccardo v. Provincia de Santa Fe [Argentina] [October 27, 2015]

Nobleza Piccardo, a BAT affiliate, challenged the constitutionality of a sub-national law that established a complete ban on tobacco advertisement, promotion and sponsorship in the Province of Santa Fe. The tobacco company argued that this measure violated freedom of expression and commercial freedoms and that sub-national governments were not entitled to legislate in these matters. The Argentine Supreme Court ruled in favor of the sub-national tobacco control law, finding that this ban was a reasonable restriction of commercial freedoms. Considering the impact of tobacco use, the Court connected these measures to be obligations derived from the right to life and the right to health. With regards to freedom of expression, the Court found that commercial speech is not entitled the same level of protection as political or social speeches. The Court also understands that health is an area of concurrent power and thus shared by both the federal and the sub-national governments. Notably, even though Argentina has not ratified the FCTC, the Court uses it as an international standard for tobacco control policies. 

National Association of Tobacco Outlets v. City of New York [United States] [June 18, 2014]

Tobacco companies and retailers sued New York City challenging an ordinance that prohibits the sale of tobacco below the stated price, such as through coupons or two-for-one offers. The court upheld the ordinance, ruling that it does not violate the tobacco companies’ or retailers’ free speech rights under the First Amendment and that it is not preempted by state or federal law. The court found that ordinance does not violate the First Amendment because it regulates an economic transaction – the sale of tobacco products below the listed price – not speech. Additionally, the ordinance is not preempted by the Federal Cigarette Labeling and Advertising Act because it is a lawful restriction on the manner in which tobacco manufacturers and retailers advertise and promote their products and it does not regulate the content of cigarette advertising related to health warnings. Finally, the New York City ordinance is not preempted by state law because the state law relates only to the distribution of free tobacco products, not partially discounted tobacco products.

National Association of Tobacco Outlets, Inc. et al v. City of Providence, Rhode Island, et al [United States] [September 30, 2013]

Tobacco companies sued the City of Providence, Rhode Island challenging two different local ordinances: (1) restricting the sale of flavored tobacco products (other than cigarettes) except in a smoking bar; and (2) prohibiting retailers from accepting or redeeming coupons and certain multipack discounts (e.g., buy two, get one free). The Appeals Court upheld the lower court’s decision and found that both ordinances are legal. The “Flavor Ordinance” is not preempted by the Family Smoking Prevention and Tobacco Control Act. The “Price Ordinance” does not violate the First Amendment and is not preempted by the Federal Cigarette Labeling and Advertising Act. Additionally, neither ordinance is preempted by Rhode Island state law.

U.S. Smokeless Tobacco Mfg. v. City of New York [United States] [February 26, 2013]

After the enactment of the Family Smoking Prevention and Tobacco Control Act by the U.S. government in 2009, Plaintiff tobacco companies challenged a New York City law prohibiting the sale of “any flavored tobacco product except in a tobacco bar.”  The law did not include cigarettes or flavors of tobacco, menthol, mint or wintergreen.  Plaintiffs asserted the New York City law was preempted by the federal act and was thus invalid.  This opinion of the Court of Appeals for the Second Circuit was delivered after the trial court ruled against the plaintiffs on summary judgment.  Plaintiffs argued the New York law was a “veiled attempt to regulate the manufacture of tobacco products” instead of a restriction on the retail sale of products with a specific characteristic.   The court held the law fit within the federal law because it invoked powers reserved for states and fell within the federal laws exemption clause for preemption that allowed states to enact laws restricting retail sales.  The court thus affirmed the lower court’s judgment and dismissed the appeal.

Health for Millions v. India [India] [January 03, 2013]

India passed The Cigarettes and Other Tobacco Products Act (COTPA) in 2003, before becoming a party to the FCTC.  In 2005, the Ministry of Health and Family Welfare exercised the powers granted to it by COTPA by promulgating rules on tobacco advertising.  These rules included restrictions on advertising allowed at point-of-sale, such as requiring a health warning, limiting the size of the advertising, and prohibiting lighting or pack images.  The rules also included a definition of indirect advertising.  The tobacco industry challenged the Rules in Mumbai High Court, and the Court issued an interim order staying the implementation of the Rules.

NGOs, including Health for Millions, filed a petition before the Supreme Court and in one High Court on this matter. On January 4, 2013, the Supreme Court stayed the Mumbai Court’s 2005 interim order that prevented implementation of the Rules. 

Sinditabaco v. ANVISA [Brazil] [December 17, 2012]

A Brazilian tobacco lobbying group, Sinditabaco, brought an action to stop the National Health Surveillance Agency, ANVISA, from implementing a rule to ban the use of additives and flavorings in cigarettes.  The group argued that ANVISA did not have the legal authority to make the rule and that the rule was not supported by any scientific evidence as to the health effects of the flavorings.  The group claimed the rule would affect over 95% of tobacco users and presented a petition signed by various stakeholders in the tobacco product supply chain claiming that it would cause billions of dollars of losses.  The legal representatives of ANVISA were not present at the hearing on the issue.  The court agreed to grant the preliminary injunction stopping the implementation of the rule, pending a hearing on the merits of the case.

National Association of Tobacco Outlets, Inc. et al v. City of Providence, Rhode Island [United States] [December 10, 2012]

Various tobacco companies sought to prevent the implementation of ordinances passed by the City of Providence, Rhode Island to prohibit the sale of certain flavored non-cigarette tobacco and certain price based promotions like “buy-two-get-one-free”. The court found that Providence’s restrictions are reasonable regulations of the sales of tobacco products and serve the city’s legitimate goal of reducing smoking and other tobacco use, especially among kids.  The court rejected arguments by tobacco companies that the ordinances violated their First Amendment rights or are also preempted by federal and state law.  Holding that, “Neither of the Ordinances at issue precludes the Plaintiffs from engaging in activities that can be considered ‘commercial speech’,” and “(t)he three provisions of the FSPTCA (Family Smoking Prevention and Tobacco Control Act) constitute no impediment to the City’s prohibition against the sale of flavored tobacco products.”

Native American Council of Tribes v. Weber [United States] [September 19, 2012]

A group of Native Americans challenged a policy implemented by prison authorities that banned all use of tobacco, including for religious purposes.  South Dakota has the highest rate of Native Americans in the prison system and some of them use tobacco as part of their religious ceremonies.   After gradually reducing the availability of tobacco in the prisons, the policy changed to complete ban.  The prisoners challenged the ban based on religious freedom and the corresponding federal legislation (RULIPA).  The court held the prisoners had shown the total ban on tobacco was a substantial burden on the exercise of their religion and that the authorities had not demonstrated a compelling governmental interest, or that they had used the least restrictive means to further that interest.  The court ordered the parties to agree to a new policy embodying the court’s decision and submit it to the court for approval.

23-34 94th St. Grocery Corp v. NY City Board of Health [United States] [July 10, 2012]

New York City required all tobacco retailers to display signs bearing graphic images showing adverse health effects of smoking. Retailers challenged the city's resolution. The lower court held that the resolution is preempted by federal labeling laws. In this decision, the appeals court affirmed, citing the Federal Cigarette Labeling and Advertising Act, which includes a preemption provision, limiting the extent to which states may regulate the labeling, advertising, and promotion of cigarettes.

Imperial Tobacco Limited v. The Lord Advocate, The Scottish Ministers [United Kingdom] [February 02, 2012]

Imperial Tobacco appealed the 2010 decision of a lower court upholding a tobacco point of sale display and vending machine ban. When Imperial Tobacco filed the appeal, the appellate court granted a temporary injunction against the implementation of the law. Imperial Tobacco once again argued that this law was "beyond the competence of the legislature" and therefore sought a permanent injunction against its implementation. Imperial Tobacco argued that the law would restrict freedom of trade and additionally that the Scottish parliament does not have authority to regulate these sales, because it is preempted by national law. Specifically, the company argued that the country's parliament cannot regulate trans-border trade conducted throughout the United Kingdom.

The Court rejected those arguments, finding that the purpose of the law - to protect Scotland's public health via a reduction in smoking and especially youth smoking - was a valid exercise of the Scottish Parliament's authority. Additionally, the Court found that there was no conflict with national law, because these regulations did not clash with or exceed the authority of national tobacco control legislation in the United Kingdom. Therefore, Imperial Tobacco's appeal was dismissed.

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