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British American Tobacco Panama v. Executive Decree No. 611 [Panama] [May 28, 2014]

Decree 611 establishes that Panama's ban on the advertising, promotion and sponsorship of tobacco products includes a ban on tobacco product display at the point of sale. BAT Panama filed an unconstitutionality claim requesting an order from the court declaring the Decree void.  BAT Panama argued that the Decree violated the rights to freedom of expression and private property, among other rights. The Supreme Court upheld the Decree, noting, among other things, that even freedom of expression could be restricted if needed to protect public health.

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. 

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.

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.

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.”

United States v. Philip Morris USA [United States] [November 27, 2012]

In 1999, the United States filed a lawsuit in the U.S. District Court for the District of Columbia against the major cigarette manufacturers and related trade organizations alleging that defendants, while acting as an enterprise, fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.

This opinion by the District Court specifies language the tobacco companies must publish to correct previous false and misleading conduct by the tobacco companies.  The court announces five subject headings each with specific corrective statements. After describing the required language the court provides a detailed legal analysis of the First Amendment grounds supporting the requirements.  The court then dismisses other alternative challenges brought by the tobacco companies.

Attorney General of Canada v. Imperial Tobacco Ltd. et al. [Canada] [November 14, 2012]

This class action suit was brought by 1.8 million people in Quebec against three major tobacco manufacturers.  The tobacco companies claimed that if they were found liable for personal injury, then the government should share financial responsibility as well, because tobacco products are government regulated products.  The Supreme Court of Canada rejected this argument in July 2011 in a separate, but similar, case.   In this decision, the Quebec Court of Appeal also rejected the tobacco manufacturers’ arguments and reversed the lower court ruling.  The Court of Appeal granted a motion to dismiss by the government, and prohibited the amendment of the complaint to include the Canadian government as a potential defendant. 

Burning Brain Society v. India [India] [November 05, 2012]

In this public interest litigation, a public health organization, Burning Brain Society, brought a case against the Indian government and several state governments seeking to ban the operation of hookah bars.  The petitioners argued that nicotine is a poisonous drug and that its use in hookah violated the right to life guaranteed by the Indian constitution.  The petitioners argued that concentrated nicotine was added to the hookah tobacco to create a more dangerous and addicting product.  The court found the tobacco products used in hookah to be commonly laced with nicotine and that this was a harmful and dangerous drug.  Ruling for the petitioners, the court required the closing of the hookah bars and for the States to create a permanent task force to monitor and enforce the use of nicotine in hookah bars and to pursue criminal penalties against violators of the law.

British American Tobacco South Africa (PTY) Limited v. Minister of Health, et al. [South Africa] [August 06, 2012]

British American Tobacco South Africa Limited (BAT) sued the Minister of Health and others claiming that the Tobacco Products Control Act was unconstitutional.  BAT claimed that the Act, which prohibits the advertising or promotion of tobacco products, violated their freedom of expression by denying them the ability to communicate one-to-one with adult consumers and violating the right of consumers to receive information concerning tobacco products.  BAT lost at the trial court and appealed.  To determine if the limitation on speech was justified, the Appeals Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to protect its citizens from the dangers of tobacco.  The Court found that the hazards of smoking far outweigh the interests of the smokers as a group, so the limitation was justified.  Further, the Court stated that South Africa is a Party to the Framework Convention on Tobacco Control, and is obliged to have regard for the requirements of that treaty, specifically Article 13, which requires that Parties ban all tobacco advertising, promotion, and sponsorship. For these reasons, the lower court’s decision was affirmed. 

BAT appealed to the Constitutional Court.  The Court dismissed the appeal because the company had no prospects of success.

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