Type of Litigation: Enforcement Action by a Private Individual or Private Entity

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Red PaPaz v. Rappi S.A.S [Colombia] [March 02, 2022]

On December 2, 2019, the Colombian Association of Fathers and Mothers – Red PaPaz, filed a claim before the Colombian Superintendence of Industry and Commerce (SIC) against Rappi S.A.S (Rappi), a Colombian on-demand delivery online company, for the lack of mechanisms on Rappi's e-commerce website and mobile app to ensure that minors do not search and buy harmful products through them (such as alcohol and tobacco products). Specifically, the complaint alleged that minors could access, purchase and receive alcoholic beverages and tobacco products through Rappi's website without any significant limitations and without their age being verified at the time of purchase and delivery. This lack of protective measures violated the norms for the protection of minors established in Colombia's Law No. 1801-2016, Childhood and Adolescence Law. The complaint filed by Red PaPaz was investigated jointly, with many additional complaints filed by Colombian consumers against Rappi due to a series of infringements of the Colombian Consumer Protection Law. Upon completing the investigation, the SIC verified each of the infractions reported by Red PaPaz and several other consumers and determined to fine Rappi approximately $312,000.00 USD ($1,245,000,000.00 Colombian pesos). The decision has been challenged by Rappi.

British American Tobacco France vs. National Committee for Tobacco Control [France] [October 07, 2021]

British American Tobacco France (BAT France) appealed a lower court ruling (in "urgent proceedings") ordering the deletion of materials and content promoting e-cigarettes from the website "govype.com/fr" and ordering BAT to pay certain costs and damages. The appellate court ruled that some of the disputed content clearly constituted messages of an advertising nature, having the effect of promoting the quality and safety of the products (e.g., "Vype is a pioneer in the science of vaping"), touting the sensations that can be expected during consumption (e.g., "freshness is in the spotlight"), encouraging consumption through a loyalty program (e.g., "subscribe & save"), and highlighting the advantages of the product by comparing it to tobacco products (e.g., "vaping on average can cost 3 times less than a pack of traditional cigarettes"). These types of statements on a website that sells e-cigarettes do not fall within the exception in the law permitting posters "placed inside establishments marketing [e-cigarettes] and not visible from the outside." The court concluded that the "notion of a poster refers to the obvious requirement for a paper medium and not a virtual one." As a result, the court ordered BAT France to delete a number of promotional statements from the website and pay the National Committee for Tobacco Control damages (€30,000), irrevocable costs under the French Code of Civil Procedure (€8,000), and legal costs.

BAT - Surreptitious Advertising of Glo on Social Media [Italy] [September 30, 2021]

A consumer protection organization brought a complaint before the Italian Competition Authority alleging British American Tobacco Italia S.p.A. (BAT) and individual social media influencers violated the Consumer Code through Instagram posts promoting Glo Hyper, a heated tobacco product. The specific promotional practice at issue was a "call to action" where the influencers encouraged their followers to post content containing tags and hashtags related to Glo without asking them to also disclose the promotional nature of the posts. The influencers would then re-post the best user-generated content.

Ultimately, the regulatory authority declined to find an offense because both BAT and the influencers made certain commitments that the regulatory authority felt were sufficient to provide consumers with complete and accurate information going forward. These commitments by BAT included: (1) the adoption of Influencer Marketing Guidelines; (2) the addition of contractual provisions should BAT directly contract with influencers in the future; (3) the addition of contractual language if BAT contracts with influencers through an agency that would require the agency to monitor the influencers' activities and adherence to the Guidelines; (4) asking followers to include appropriate hashtags in any future calls to action; and (5) removal of the pages/posts that are subject to this dispute. The influencers agreed to: (1) remove the posts at issue; (2) use the appropriate hashtags in any future advertising and marketing activities; and (3) inform their followers that any user-generated content that doesn't contain the necessary tags or hashtags will not be considered in any contests.

National Committee for Tobacco Control v. British American Tobacco France [France] [February 12, 2021]

This order for urgent proceedings was brought by the National Committee for Tobacco Control (CNCT) against British American Tobacco France (BAT France), which had posted on a website marketing an e-cigarette called "VYPE ePod" in violation of tobacco advertising and promotion laws. CNCT asked the Nanterre Judicial Court to compel BAT France to delete the site; to disclose to CNCT data on sales volumes and related information through the site; and to pay both advance compensation and compensation under relevant articles of the the French Code of Civil Procedure.

The Court referred the parties to appeal on the substance of the dispute, and provisionally reserved judgment as to the parties' claims. It dismissed CNCT's claims for the disclosure of sales data. It ordered deletion of certain language on the website and ordered BAT France to pay CNCT €1,000 as an advance payment on its claim for damages, €5,000 to CNCT in irrecoverable costs under the French Code of Civil Procedure, and legal costs.

Dir. of CPI of SIC v. Coltabaco S.A.S. et al. [Colombia] [December 27, 2019]

In 2017, the Directorate of Consumer Protection Investigations of the Superintendency of Industry and Commerce ("SIC") opened an investigation following a complaint to prompt SIC to stop IQOS marketing.

SIC dismissed the complaint after taking the following into consideration:

- The Ministry of Health asked for IQOS products to be treated as tobacco products.
- SIC focused on the fact that only the tobacco sticks for heated tobacco products, as opposed to the IQOS device, are mandated to have health warnings.
- According to the SIC, IQOS does not fall under the authority of the tobacco control law in Colombia (Law No. 1335).
- IQOS marketing practices have not violated consumer protection regulations in Colombia.

Nicolás Parra Castro v. Superintendency of Industry and Commerce (Second Instance) [Colombia] [November 14, 2019]

The plaintiff, a member of “Educar Consumidores” NGO, filed a lawsuit to order the Superintendency of Industry and Commerce (SIC) to inspect, monitor, and control the advertising and promotion of tobacco products and their derivatives. Specifically, the plaintiff requested that the judges order SIC to demand that Coltabaco and Philip Morris Colombia withdraw all advertising of IQOS devices. In the first instance, the Court denied the claim because the norms invoked by the plaintiff did not contain an imperative and enforceable mandate against the defendant. On appeal, the Court confirmed the previous decision since it also understood that the cited norms -although they established the general prohibition on the advertising and promotion of tobacco products and their derivatives - did not create a clear and concrete obligation that corresponded specifically to SIC.

Nicolás Parra Castro v. Superintendency of Industry and Commerce (First Instance) [Colombia] [September 25, 2019]

The plaintiff, a member of “Educar Consumidores” NGO, filed a lawsuit to order the Superintendency of Industry and Commerce (SIC) to inspect, monitor, and control the advertising and promotion of tobacco products and their derivatives. Specifically, the plaintiff requested that the judges order SIC to demand that Coltabaco and Philip Morris Colombia withdraw all advertising of IQOS devices. In this case, the first instance, the Court denied the claim because the norms invoked by the plaintiff did not contain an imperative and enforceable mandate against the defendant.

National Committee for Tobacco Control v. S.A. Philip Morris Products, et al. [France] [May 15, 2019]

The National Committee for Tobacco Control (CNCT) filed a lawsuit against Philip Morris Products (Philip Morris) and Ducati Motor Holdings (Ducati) to prevent the companies from using their "Mission Winnow" trademark at an upcoming Grand Prix event in France (French motorcycle Grand Prix at Le Mans) because it would amount to unlawful tobacco advertising, promotion and sponsorship. CNCT also sought disclosure of the partnership agreements between Philip Morris and Ducati.

In its decision, the Le Mans High Court agreed that:

- The colors of the “Mission Winnow” project and its logo clearly recall the Marlboro cigarette brand that has long been associated with motorsports.
- Professionals of the sector knew that the “Mission Winnow” project only conceals sponsorship actions from a tobacco manufacturer.
- The “Mission Winnow” name and logo constitute some reference, although indirect, to tobacco and in particular to the Marlboro brand and its owner, Philip Morris.
- The violation of provisions in the Public Health Code is sufficiently obvious that the use of the “Mission Winnow” logo or even the existence of the project, as well as the partnership agreement with Ducati, can be questioned under the law.

    As a result of these findings, the Court prohibited either company from using the mark, logo or expression “Mission Winnow” under penalty of €10,000 for each violation, and ordered Philip Morris and Ducati to pay €10,000 to CNCT. Additionally, the Court granted CNCT's request for disclosure of the partnership agreement.

    IQOS Hidden Self-Advertising Magazine [Italy] [December 19, 2018]

    Philip Morris International’s Italian affiliate company Philip Morris Italia S.r.l (PMI) was found guilty of a breach of the Consumer Code as a result of 'hidden advertising.' There were a number of magazine articles that appeared in various publications in Italy, which on their face were about other subjects (e.g., how to freshen up a used car, how to cook at the right temperature), but also used part of the article to extol the virtues of IQOS. The Italian Competition Authority held that this was a violation of non-transparent advertising and was in breach of the Consumer Code. PMI was fined 500,000 Euros (the maximum), and the publisher was fined 50,000 Euros.

    J. Anbazhagan v. Union of India [India] [April 26, 2018]

    J. Anbazhagan, a member of the legislative assembly in the State of Tamil Nadu, filed a writ petition to highlight the illegal manufacture and sale of gutka and pan masala in the state and to urge the High Court of Madras to order an independent investigation into the matter. Mr. Anbazhagan alleged such sales were carried out in collusion with several high dignitaries and bureaucrats, such as central excise officials, central government officials, officials from different state governments, including the Government of Tamil Nadu, councilors of the Chennai Corporation, and officials of the food safety department, among others. The Court observed that it was compelled to take up the case as the issues involved the right to health and directed that the Central Bureau of Investigation investigate the matter, since, among other reasons, central government officials allegedly were involved.  In response to arguments made by the respondents, the Court also clarified that the definition of “food” under Section 3(j) of the Food Safety Act includes any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and that the definition undoubtedly was wide enough to include gutka, and other forms of chewable tobacco/nicotine products intended for human consumption. The Court further clarified that India’s omnibus tobacco control law, COTPA, and the Food Safety Act were not in conflict, but were meant to be read in conjunction with each other as COTPA does not contain a non-obstante clause that excludes operation of other laws.