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BAT v. UK Department of Health (Appeal) [United Kingdom] [November 30, 2016]

An appeal against the earlier High Court judgment which upheld the UK's Standardised Packaging of Tobacco Products Regulations 2015.

British American Tobacco, Japan Tobacco International and Imperial Tobacco, together with the tipping paper company Tannpapier, appealed the High Court judgment of May 2016. The Appeal Court rejected all grounds of appeal. 

The appeal concerned the nature of the claimants' trade mark rights, the extent to which the Regulations interfere with those rights and the lawfulness of any interference. The Claimants also appealed the High Court judgment on the proportionality of the Regulations. The case concerned issues of European Union law and the European Convention on Human Rights (the right to property in Article 1 of Protocol 1), as well as domestic common law. 

The Appeal Court confirmed that a positive 'right to use' a registered trade mark did not exist in either domestic law, European Union law or international law. The Court also confirmed that the Regulations amounted to a control on the use of the tobacco trade marks and did not amount to a deprivation of those marks. The Regulations were a proportionate response to the public health objectives and struck a fair balance between the objectives and the interference with the claimant's rights. 

RJR Nabisco et al. v. European Community et al. [United States] [June 20, 2016]

The U.S. Supreme Court ruled that RJR Nabisco could not be sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act for its conduct abroad. The European Union (known as the European Community in this case) sued RJR Nabisco claiming that the company directed and managed a global smuggling and money-laundering scheme with organized crime groups in violation of the RICO law. In this decision, the Supreme Court ruled that certain elements of RICO can apply to conduct that occurs outside of the United States. However, the Court also found that a private entity— this case, a foreign government­—cannot sue under RICO in the United States unless it has suffered a domestic injury. Because the European Union had earlier waived its claims of a domestic injury, the Court was forced to dismiss the EU’s remaining claims. 

Tobacco Institute of India v. Union of India [India] [March 11, 2016]

The Union of India and Health For Millions filed an interim application seeking vacation of the High Court’s December 4, 2015 stay (and January 6, 2016 modification) of a 2014 Ministry of Health notification establishing pack warnings on 85% of both sides of tobacco product packaging.  They alleged that a May 2009 Supreme Court order in a pack warnings matter (W.P. 549/2008) still pending before the Supreme Court directed that no court in India may pass orders inconsistent with the May 2009 order and that this May order was not considered in the High Court’s December 4, 2015 ruling.  The Karnataka Beedi Association and others maintained that the May 2009 Supreme Court order pertains to implementation of the 2008 pack warning rules and not the October 2014 rules.  They argued that the order thus cannot be relied upon in this matter.  Noting, among other things, that Health For Millions has filed an application for rigorous enforcement of the 2014 rules in W.P. 549/2008, the court observed that the May 2009 Supreme Court order is applicable to the writ petitions in the Karnataka High Court as issues relating to both the 2008 and 2014 rules are before the Supreme Court.  For this reason, the court held that the December 4, 2015 stay of the 2014 pack warnings rules must be lifted.  The Karnataka Beedi Association and others appealed, arguing that the constitutional validity of neither the 2008 nor the 2014 rules was at issue in the Supreme Court.  Instead, they maintain that the Supreme Court was adjudicating a writ of mandamus for the rules’ implementation.  Accordingly, the association argues that the high court must review the constitutional validity of the rules.  The high court disagreed and upheld the judge’s order lifting the stay.  The court also invited the association to approach the Supreme Court for further clarity so that the court can proceed further in these matters.

Tobacco Institute of India v. Union of India [India] [February 24, 2016]

The Union of India and Health For Millions filed an interim application seeking vacation of the High Court’s December 4, 2015 stay (and January 6, 2016 modification) of a 2014 Ministry of Health notification establishing pack warnings on 85% of both sides of tobacco product packaging.  They alleged that a May 2009 Supreme Court order in a pack warnings matter (W.P. 549/2008) still pending before the Supreme Court directed that no court in India may pass orders inconsistent with the May 2009 order and that this May order was not considered in the High Court’s December 4, 2015 ruling.  The Karnataka Beedi Association and others maintained that the May 2009 Supreme Court order pertains to implementation of the 2008 pack warning rules and not the October 2014 rules.  They argued that the order thus cannot be relied upon in this matter.  Noting, among other things, that Health For Millions has filed an application for rigorous enforcement of the 2014 rules in W.P. 549/2008, the court observed that the May 2009 Supreme Court order is applicable to the writ petitions in the Karnataka High Court as issues relating to both the 2008 and 2014 rules are before the Supreme Court.  For this reason, the court held that the December 4, 2015 stay of the 2014 pack warnings rules must be lifted. 

In re NJOY, Inc. Consumer Class Action Litigation [United States] [February 02, 2016]

A court ruled that a lawsuit against e-cigarette maker NJOY could not proceed as a class action. Potential class members had asserted that NJOY: (1) conducted misleading advertising indicating that e-cigarettes are safer than regular cigarettes; and (2) omitted information on its packaging about product ingredients and the risks of such ingredients. The court affirmed an earlier ruling prohibiting the lawsuit from proceeding as a class action, saying that class members failed to demonstrate how damages can be proven for the entire class. Specifically, the court said that the class was not able to show how it could calculate the difference between the price paid by consumers of NJOY and the true market price that reflects the impact of the unfair or fraudulent business practices. Although the ruling means that the case may not proceed as a class action, individuals may sue NJOY independently.  

R.J. Reynolds v. United States Food and Drug Administration [United States] [January 15, 2016]

Tobacco companies challenged the composition of the Tobacco Products Scientific Advisory Committee (TPSAC), which was established by the U.S. Food and Drug Administration (FDA) to advise the agency on scientific issues related to tobacco products, including the use of menthol in cigarettes. The tobacco companies alleged that three of the scientific members of the Committee had both an actual and a perceived conflict of interest because each consulted with companies that developed nicotine replacement therapies and testified as expert witnesses in lawsuits against tobacco manufacturers. The court ruled in favor of the tobacco companies, finding that the challenged committee members had both financial conflicts of interest and an appearance of conflicts of interest, which fatally tainted the composition of the Committee and its work product, including the 2011 Committee report on menthol in cigarettes. The court issued an order requiring the FDA to reconstitute the Committee’ membership to comply with ethics laws and barred the agency from using the Committee’s menthol report, which had recommended removing menthol cigarettes from the marketplace.  The FDA appealed, and a three-judge panel of the appeals court unanimously reversed the lower court ruling, finding that plaintiffs had not shown imminent injury from the appointment or the actions of challenged Committee members.

Price v. Philip Morris, Inc. [United States] [November 04, 2015]

A group of smokers filed a class action against Philip Morris alleging that the company’s marketing of “light” and “lowered tar and nicotine” cigarettes violated certain fraud statutes. The trial court denied the company’s attempt to dismiss the case and awarded the smokers $10.1 billion. After numerous appeals, an Illinois court reinstated the case in 2014. In this decision, the Illinois Supreme Court rejected the appeals court’s decision (based on procedural reasons) and dismissed the class action, effectively ending the case.  

Whistle Stop Inn, Inc. & Louise Liford, d/b/a Thirsty Turtle v. City of Indianapolis et al. [United States] [June 24, 2015]

An Indianapolis smoking ordinance contained an exception allowing smoking in “satellite” facilities for off-track gambling. The court ruled that the exception was unconstitutional because it treated satellite facilities differently from bars and restaurants without a sufficient reason. The court struck down the exception for satellite facilities but allowed the remainder of the ordinance to continue in effect.

European Community v. RJR Nabisco, Inc. [United States] [April 13, 2015]

This case involves a claim against RJR Nabisco that the company directed and managed a global smuggling and money-laundering scheme with organized crime groups in violation of the Racketeer Influenced and Corrupt Organizations (RICO) law. The court upheld an earlier decision finding that the RICO law could apply to actions that happen outside of the United States when the underlying laws that constitute racketeering explicitly apply to foreign activity. 

Philip Morris USA v. Russo [United States] [April 02, 2015]

This lawsuit was filed by an individual alleging that smoking caused her to develop chronic obstructive pulmonary disease (COPD). The lawsuit arises from a 1994 class-action lawsuit on behalf of Florida smokers against major tobacco companies (Engle v. Liggett Group, Inc.). In this decision, the court affirmed an earlier ruling allowing the plaintiff’s fraud claims to continue. The court found that the fraud claims were filed within the appropriate amount of time because the earlier class action lawsuit in Engle had proven that the major tobacco companies fraudulently concealed information about the health risks of smoking. 

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