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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. 

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. 

British American Tobacco Colombia v. Ministry of Health [Colombia] [September 24, 2015]

British American Tobacco (BAT) Colombia requested that the State Council annul a Ministry of Health administrative decision that did not approve the use of expressions “Click & On,” “Click & Roll,” “Krystal Frost,” “Filter Kings,” and “Frozen Nights” on tobacco products packages.  The Ministry’s administrative decision considered such expressions a form of deceptive advertising and thus prohibited under law 1335. A lower administrative court rejected BAT Colombia’s request, and the State Council, the highest judicial body for administrative matters, upheld the lower court’s decision.  The State Council found the expressions to be deceptive advertising and that economic freedoms must be restricted for the protection of the right to health, the right to life and the public interest.  Notably and responding to BAT’s allegation, the State Council found no expropriation of intellectual property.  The Council observed that intellectual property rights need to be exercised in conformity to human rights obligations. Moreover, responding to the argument that similar expressions had been approved in the past, the Council found that there was no violation of good faith and noted that tobacco control measures are expected to increase in light of further evidence.

Quebec Class Action [Canada] [May 27, 2015]

Two class action lawsuits were filed in Canada in 1998 against major tobacco companies; the cases were later combined. One class (Blais) involved Quebec residents with lung cancer, throat cancer, or emphysema. The other class (Letourneau) involved Quebec residents addicted to nicotine. After a lengthy trial, the court found that the tobacco companies caused injury, failed to inform customers of the risks and dangers of its products, and violated Quebec law.

In the Blais case, the court awarded moral damages (e.g., for pain and suffering) of $15.5 billion, to be paid jointly by the three tobacco companies. In the Letourneau case, although the court found that the tobacco companies were at fault, it did not award moral damages because there was not enough evidence to determine the total amount of the class members’ claims. In both cases the court awarded punitive damages, which it calculated based on one year of before-tax profits for each tobacco company. In Blais, the court reduced this award to the symbolic amount of $30,000 for each defendant, representing one dollar for each death the tobacco industry causes in Canada each year. In Letourneau, the court awarded punitive damages of $131 million. The tobacco companies must make an initial deposit on the judgment of $1 billion while the appeal is pending.

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.

Indian Dental Association of U.P. State and Another v. State Of U.P. and Another [India] [September 17, 2012]

In a further development of this case, the court recognizes the directions of the Federal government requiring the state of U.P. to place restrictions on the sale and distribution of “pan masala” or “gutka” that contains tobacco.  Here the court recognizes the State’s failure to implement the required restrictions and the existence of similar restrictions, with court approval, in other Indian states.  The court demands implementation of the regulations within 14 days and threatens to issue a mandamus demand to the state government and the food business operators if the regulations are not implemented.

Kerala Voluntary Health Services v. Union of India, et al. [India] [March 26, 2012]

Kerala Voluntary Health Services (Kerala VHS) sued the Union of India, et al. to enforce the provisions of India's omnibus tobacco control law, COTPA.  Kerala VHS claimed that the Union of India, et al. had been negligent in enforcing COTPA as evidenced by the tobacco industry's facilitating smoking in films and engaging in sale of tobacco near educational facilities.  The Court observed that Indian Constitution's right to freedom of speech and expression is circumscribed by the Constitution's right to life and found that provisions of COTPA had been violated.  To remedy these violations, the Court imposed measures for compliance and appropriate implementation mechanisms for such measures.

Judicial Review of Article 113 of Law No. 36 of 2009, Ruling in Case No. 19 [Indonesia] [November 01, 2011]

Petitioner, a representative from a tobacco growing region of Indonesia, challenged the portions of the 2009 Health Law that deal with addictive substances, including tobacco products.  Petitioner alleged that the law caused financial losses and alleged violation of the constitutional rights of tobacco farmers, clove farmers, cigarette factory workers and other concerned parties.  The Court rejected the petition in its entirety, ruling that tobacco was addictive and properly included within the law.  They held that to treat it differently from other addictive substances would also result in impermissible legal uncertainty.  Furthermore, they rejected petitioners claims that the regulation of tobacco as an addictive substance violated the right to work by harming the tobacco production industry. The decision in this case is final; no further appeals are permitted.

Flemish Anti-Cancer League, et al. v. Belgium Council of Ministers [Belgium] [March 15, 2011]

Applicants filed an action for annulment of Belgium's tobacco control legislation. The Court struck down exemptions to the law that permitted smoking in certain establishments whose principal activity was to provide drinks on site and wherein only pre-packaged food was served.  The Court found that these exceptions violated the Belgium Constitution, the Revised European Social Charter, and the European Convention on Human Rights, including the rights to equality before the law, non-discrimination, respect for private and family life, dignity, safe and healthy working conditions, and protection of health. The Court stressed the need to consider the protection of health in combination with Article 8 of the Framework Convention on Tobacco Control (FCTC) when addressing tobacco control legislation. According to the Court, the exposure to tobacco smoke could not be reasonably justified based on whether and what type of food was for purchase. The additional challenge to provisions of the legislation that allowed for designated smoking rooms was unsuccessful as the Court would not find that smoking rooms amounted to a violation of any rights.

Associação Brasileira de Bares e Restaurantes, seccional São Paulo (ABRASEL-SP) v. Diretor Exectivo da Fundação de Proteção e de Defesa do Consumidor de São Paulo (PROCON-SP), et al. [Brazil] [September 13, 2010]

The Association of Bars sought to continue permitting clients to smoke in food establishments after the State of Sao Paulo passed a prohibition against the practice. Specifically, the plaintiff claimed that the law prohibiting smoking in restaurants was unconstitutional because São Paulo exceeded its powers when it legislated the matter. The defendants claimed that they rightfully legislated legal provisions complementary to the Constitution and the Framework Convention on Tobacco Control (FCTC), which Brazil has ratified. The defendants therefore claimed that the law passed in the State of São Paulo was constitutional and that the bars and restaurants had to provide a smoke-free environment.  The plaintiff appealed the decision of the lower court, but the higher court affirmed the constitutionality of the State of São Paulo's law.

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