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R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health [European Union] [May 04, 2016]

A challenge to the validity of the European Union’s (EU) Tobacco Products Directive (TPD) 2014 brought by Philip Morris and British American Tobacco was dismissed on all grounds by the Court of Justice of the European Union (CJEU). The amended TPD was adopted in April 2014 and provides a wide range of requirements relating to emissions, reporting, 65% pictorial health warnings, packaging and labelling, a ban on characterising flavors and other additives, and regulates e-cigarettes. Article 24(4) permits member states to adopt further requirements to standardise packaging.  The TPD applies to all 28 countries within the EU.

In this case, Philip Morris and BAT brought a judicial review against the United Kingdom based on the government’s intention to implement the TPD requirements in UK legislation. The tobacco companies claimed that parts of the TPD and the Directive as a whole, were invalid because it was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonising in nature; and contravened the principle of subsidiarity.  The UK court hearing the case referred questions on the interpretation of EU law to the CJEU. The CJEU upheld all aspects of the TPD, including provisions to require pictorial warning labels, to prohibit menthol cigarettes, and to allow countries to prohibit cross-border sales and to adopt additional packaging restrictions, such as plain packaging. The court noted that the EU may act to prevent obstacles to the trade of tobacco products while also ensuring a high level of public health protection. The Court found that the packaging and labelling requirements were proportionate and did not go beyond what were necessary and appropriate. 

In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation. 

EU Member States are obliged, under the TPD, to implement most provisions of the TPD into domestic law by May 20, 2016 (although a number of states have been late in their implementation).

Pillbox 38 (UK) Ltd. v. Secretary of State for Health [European Union] [May 04, 2016]

A challenge to the validity of the e-cigarette regulations in the European Union’s (EU) Tobacco Products Directive (TPD) 2014 was dismissed on all grounds by the Court of Justice of the European Union (CJEU). Pillbox 38 (UK) Ltd. (trading under the name "Totally Wicked"), an e-cigarette manufacturer, brought a judicial review against the UK government challenging its intention to implement the TPD into domestic law on the basis that it claimed the TPD was not valid. The TPD Article 20 sets out requirements for e-cigarettes for all EU Member States. The UK court hearing the case asked the CJEU for a reasoned opinion on the validity of Article 20.

The CJEU found the TPD to be valid and upheld all of the e-cigarette requirements, including health warnings; a ban on most e-cigarette advertising; a limit on nicotine levels and amounts and e-liquid container sizes; a requirement to notify the government before introducing a new product; and the requirement to include a leaflet with the product containing information such as a list of ingredients. Firstly, because the purpose of the Directive is to harmonise regulations across the EU, the court found that there were significant divergences between the regulations in different Member States which justified the EU regulating the market. The court found that it was permissible to regulate e-cigarettes differently than other tobacco products in part because e-cigarettes are novel products and there is insufficient information on their health effects. The identified and potential risks linked to the use of e-cigarettes means the EU may act according to the precautionary principle. 

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.  

ASA Adjudication on Hubbly Bubbly [United Kingdom] [June 10, 2015]

A variety of ads for Hubbly Bubbly electronic cigarettes were challenged by the government agency that regulates e-cigarettes. The Advertising Standards Authority (ASA) concluded that one of the ads did not make clear that the product contained nicotine as required by the country’s Advertising Code. The ads also included celebrity endorsements, depicted models who did not appear to be over the age of 25 using the devices, and were filmed in cool and trendy scenes. The ASA concluded that these communications created an association with youth culture and would be likely to appeal to those under the age of 18 in breach of the Code.  The ASA ordered the company not to use the ads again in their current form. 

ASA Adjudication on Mirage Cigarettes Ltd [United Kingdom] [April 29, 2015]

The Advertising Standards Authority (ASA) reviewed a television ad depicting a couple using electronic cigarettes in a sultry and glamorous manner. The couple was shown surrounded by heavy vapor, which appeared to be a result of the product being used off screen. The ASA found that the ad created a strong association with traditional tobacco smoking and that by depicting this behavior in a positive light, indirectly promoted the use of tobacco products in violation of the Advertising Code.  The ASA ordered the company not to broadcast the ads again in their current form.

ASA Adjudication on Must Have Ltd [United Kingdom] [December 24, 2014]

Two television ads for e-cigarettes featured a close-up of a woman’s face while using an e-cigarette and exhaling vapor. In response to nearly 200 complaints, the Advertising Standards Authority (ASA) investigated the ads and found that they indirectly promoted the use of tobacco products because the ads created a strong association with traditional tobacco smoking and presented the product in a sultry and glamorous way. In response to other complaints, the ASA found that the ads were not likely to cause offense as overtly sexual, the ads did not appeal to minors, and the ads did not encourage the use of e-cigarettes. The ASA ordered the ad not to appear in its current form.

ASA Adjudication on Vape Nation Ltd [United Kingdom] [December 24, 2014]

A television ad featured a group of adults discussing e-cigarettes, with one stating, “I used to smoke normal cigarettes but after I quit, I tried these.” The Advertising Standards Authority (ASA) ruled that the ad violated the country’s Advertising Code as irresponsible because it encouraged non-smokers to begin using e-cigarettes. The ASA noted that the ad implied that the man who spoke had stopped smoking for a period of time and was therefore a non-smoker who had subsequently begun using the company’s e-cigarettes. The ASA ordered that the ad should not appear again in its current form. 

E-Cig Ltd. v. Ministry of Health [Israel] [December 03, 2014]

The Ministry of Health required a special permit for the import of any nicotine products to Israel as pharmaceutical drugs, except for smoking products. A company seeking to import electronic cigarettes challenged this decision arguing that electronic cigarettes are recreational products, rather than pharmaceuticals, and that the ministry has no authority to limit their freedom of occupation without any specific legislation banning electric cigarettes. The court noted that the goal of protecting the public from the risks of electronic cigarettes warrants a prohibition on their import and sale, however, this can only be done by the legislature; the Ministry of Health acted without authority and its decision is thus void.

ASA Adjudication on E-Cig Ltd [United Kingdom] [November 12, 2014]

A poster for e-cigarettes showed a woman blowing vapor into a man’s face with the claim “SMOKING, REDEFINED”. The Advertising Standards Authority (ASA) ruled that the ad was irresponsible because it could be confused with traditional tobacco smoking. The ASA found that the ad relied heavily on imagery associated with tobacco smoking and that viewers, especially children, may mistakenly believe that the product was a tobacco cigarette. The ASA ordered the ad not to appear again in its current form and ordered that the company should not indirectly promote tobacco smoking in the future. 

ASA Adjudication on Cygnet UK Trading Ltd [United Kingdom] [October 15, 2014]

The Advertising Standards Authority (ASA) ruled that an ad for e-cigarettes did not violate the country’s Advertising Code because it was not likely to appeal to minors. The tv ad showed young adults dancing at a party. On-screen texted stated “Contains nicotine. 18+ only.” The ASA found that, although the ad was directed at young adults, it would not appeal particularly to those under 18 years of age because of the generic nature of the party, music, and dancing. Additionally, the ASA noted that the ad was not shown in or around programs made for or specifically targeted at children. 

The materials and analysis available at this website are for informational and educational purposes only and not for the purpose of providing legal advice.