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Browse Litigation by Substantive Issue

Substantive Issue Description
Acceptance of Known Risk (30) A plaintiff’s liability may be limited where she has accepted the risks and consequences of her behavior. The tobacco industry may argue that the dangers of smoking are well known, so liability should be limited.
Consumer Protection Violation (243) Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
Criminal Violation (46) A claim of an infringement of any criminal law.
Cultural Norms (9) A discussion on cultural attitudes around tobacco, specifically that tobacco use is an accepted part of the culture.
Defamation (5) Public statements may be defamatory, because they falsely provide a negative image or harm the reputation of individuals, organizations, or corporations.
Employment and Disability Law Violation (44) A claim against an employer involving a person who is harmed by secondhand smoke exposure in the workplace. For example, an employee with asthma may sue their employer for failing to protect them from exposure to secondhand smoke in the office or an employee with cancer may sue for workers’ compensation benefits. This may also include claims for workers' compensation. Disability laws also may protect customers who are not able to patronize a business filled with smoky air because of their disability.
Encourage Illicit Trade (16) Regulatory measures may lead to an increase in illegal sales, such as counterfeit products. The industry may also argue that such illicit trade will reduce tobacco tax revenue.
Environmental Law Violation (30) An infringement of a protection contained within a statutory environmental law, including public or private nuisance.
Excessive Delegation of Authority to the Executive (31) The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Housing Law Violation (18) A claim for violating a law protecting tenants or home owners, such as the covenant of quiet enjoyment, the warranty of habitability, constructive eviction, or trespass. For example, a tenant could sue a neighbor or the property owner when exposed to drifting secondhand smoke in their home.
Industry-Perpetrated Fraud (125) The tobacco industry may have perpetrated a fraud upon the public or the courts by presenting false information or deliberately hiding known-facts.
Intellectual Property Violation (15) Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
Investment Treaties Violation (7) A claim of infringement on investment expectations as protected by international investment treaties.
Legal Product (70) Tobacco is a legal product and the tobacco industry is a legal industry.
Non-Mandatory WHO FCTC Guidelines (18) The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Preemption (53) The subject matter of the case should be dealt with at a state level or national level.
Procedural Defect (187) The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Reactionary Regulation (14) Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Religious Law (5) A discussion of the role of religion in regulating tobacco use.
Right of Freedom of Movement and Residence (2) A violation of freedom of the right to travel, reside in, and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others. Smokers may claim that smoke free laws violate this right.
Right to Access to Information (49) A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Right to Commerce (100) A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Equal Protection (57) A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Freedom from Cruel and Unusual Punishment (16) A violation of the protection against cruel and unusual punishment. For example, prisoners may claim that exposure to secondhand smoke violates this right.
Right to Freedom of Association (10) Connected to the right to create organizations, e.g., labor unions.
Right to Freedom of Expression (85) A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Health (81) A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Judicial Protection (22) This is the right to access the court system and have the courts enforce your rights.
Right to Life (40) A violation of the right to not be killed by another person. Arguments may also be similar or tied to right to health arguments.
Right to Political Participation (2) This is the right to participate in the political system.
Right to Privacy (13) This is the right to a private personal and family life without intrusion from the government.
Right to Procedural Due Process (87) A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property (48) A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Right to Self-Determination (24) Smokers’ rights groups may claim that governments interfere with consumers’ freedom of choice when they regulate tobacco use.
"Right to Smoke" (38) The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Right to Work (20) A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
Right to a Healthy and Safe Environment (55) A violation of the right to live in a safe and healthy environment.
Sanction / Reprimand (15) Courts may sanction or reprimand parties for especially egregious behavior during court proceedings.
Sufficiency of Scientific Evidence (75) A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.
Tobacco Control Law Violation (299) A claim of a violation of a tobacco control law or statute.
Trade Violation (34) A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Ultra Vires Regulation (94) Subsequent regulations exceed the scope of the originating law.
Undue Burden (31) A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.
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