TOBACCO CONTROL LAWS

Grand River Enterprises Six Nations, Ltd., et al. v. US

Several members of the tobacco industry contended that actions taken by various states in the U.S. to implement the 1998 Master Settlement Agreement violated their rights under NAFTA. The Tribunal found that it lacked jurisdiction over all but one of the claimants. The Tribunal ruled against the surviving claimant, finding that contrary to the claimants' expropriation claim, the claimant had not been deprived of ownership or control of his business importing and distributing cigarettes, he did not establish that he had been denied national or most-favored-nation treatment, and he failed to establish that his treatment did not conform to the customary minimum standard of treatment required by NAFTA.

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Grand River Enterprises Six Nations Ltd and ors v United States, Award, ICSID Case No Case ARB/10/5, IIC 481 (2011), 12th January 2011, ICSID.

  • United States
  • Jan 12, 2011
  • International Center for Settlement of Investment Disputes

Parties

Plaintiff

  • Arthur Montour, Jr.
  • Grand River Enterprises Six Nations, Ltd.
  • Jerry Montour
  • Kenneth Hill

Defendant United States of America

Legislation Cited

Master Settlement Agreement

International/Regional Instruments Cited

North American Free Trade Agreement (NAFTA)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Health Care Cost Recovery
Governments or insurance agencies may seek reimbursement from the tobacco companies for health care costs related to tobacco. The most famous example is the case brought by individual states in the U.S.A. that resulted in the Master Settlement Agreement.
Trade Panel/Investment Tribunal/Arbitration
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.

Tobacco Control Topics

None

Substantive Issues

Right to Commerce
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 Property
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.
Investment Treaties Violation
A claim of infringement on investment expectations as protected by international investment treaties.
Trade Violation
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.
Preemption
The subject matter of the case should be dealt with at a state level or national level.

Type of Tobacco Product

None

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