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Topic: Contents and Disclosures Measures

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Search Results Results 1-10 of 137

BAT Uganda Ltd. v. Attorney General and the Minister of Health [Uganda] [February 01, 2021]

British American Tobacco Uganda (BATU) challenged Uganda's Tobacco Control Regulations, 2019. BATU's court submissions raised a number of substantive and procedural claims, including the insufficient time to implement warnings, size of warnings, ban on some misleading descriptors, and flavoring ban. BATU sought and was granted a temporary injunction suspending implementation of Regulations 3, 4, 5, and 6. However, BAT subsequently withdrew its complaint and the injunction was lifted. 

British American Tobacco Kenya, PLC v. Ministry of Health [Kenya] [November 26, 2019]

British American Tobacco Kenya filed a petition to the Kenya Supreme Court appealing a 2017 Court of Appeal decision upholding nearly all elements of Kenya’s Tobacco Control Regulations. The Supreme Court ruled that the tobacco company’s appeal had no merit, dismissed the petition in its entirety and affirmed the decision of the lower court.

Both lower courts upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

Quebec Class Action Appeal [Canada] [March 01, 2019]

Quebec residents filed two separate class action lawsuits against the Canadian tobacco companies of British American Tobacco ("BAT"), Philip Morris International ("PMI"), and Japan Tobacco International ("JTI") ("tobacco companies"). The first class involved Quebec residents who had lung cancer, throat cancer, or emphysema. The second class involved Quebec residents addicted to nicotine. 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.

On March 1, 2019, the Quebec Court of Appeals ("the Court") unanimously upheld the lower Quebec Superior Court decision and found that the tobacco companies intentionally misled consumers about the dangers associated with their products for more than 50 years. The Court upheld the lower court's decision, but made technical corrections, that the appellants pay moral damages to members of the Blais action, as well as punitive damages to both classes, with interest and the additional indemnity provided by law. The appellants’ liability was based on private law of general application (Civil Code of Lower Canada and Civil Code of Quebec ), the Tobacco-related Damages and Health Care Costs Recovery Act, the Charter of Human Rights and Freedoms and the Consumer Protection Act.

All three tobacco companies have indicated that they will likely appeal the decision to the Supreme Court of Canada.

For the earlier decision, see: JTI, et al. v. Letourneau, et al., No 500-06-000076-980 and No 500-06-000070-983, (Quebec 2015).

Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v. Land Berlin [European Union] [January 30, 2019]

Planta Tabak, a Berlin-based tobacco company that primarily manufactures and markets flavored roll-your-own tobacco, challenged provisions of the EU Tobacco Products Directive (Directive 2014/40/EU) that prohibit characterizing flavors in cigarettes and roll-your-own tobacco and prohibit packaging from alluding to flavors, among others. The plaintiffs sought a declaration that these provisions were not applicable to its products and alleged that they violated the principles of legal certainty, equal treatment, and proportionality. Planta Tabak objected to the fact that manufacturers of flavored tobacco products with an EU-wide sales volume of 3% or more in a particular product category were given until May 2020 to comply with the ban on flavorings, while manufacturers of flavored products with a smaller sales volume must comply as of May 2016.

The Court held that flavored tobacco products were particularly attractive to young people and facilitate the initiation of tobacco consumption. While the Court admitted that the ban was a restriction on the EU's free movement of goods, "it was justified by the balancing of its economic consequences against the requirement to ensure a high level of protection of human health." Further, the Court found that the difference in treatment of products based on sales volume was intended to give consumers adequate time to switch to other products and was, therefore, objectively justified. The Court also upheld the ban on any indication of flavor on the product packaging and labeling.

The case now reverts to Berlin's administrative court, where Planta Tabak filed its initial challenge.

New Zealand MOH v. PMI [New Zealand] [March 12, 2018]

The Ministry of Health ("MOH") charged Phillip Morris Ltd. with selling tobacco product called “Heets,” a heated tobacco product, in violation of Sec. 29(2) of the Smoke-free Environment Act 1990 (‘the Act’). The Act prohibits the sale of tobacco "labelled, or otherwise described as suitable for chewing, or for any other oral use (other than smoking)." The Court held that the Act was originally intended to control the sales of chewing tobacco and other tobacco products consumed orally, and therefore "Heets" did not fall within Sec. 29(2).

National Confederation of Industry (Confederação Nacional da Indústria) v. ANVISA [Brazil] [February 01, 2018]

In 2012, Brazil banned tobacco additives and flavors. The National Confederation of Industry (Confederação Nacional da Indústria) challenged the ban. The Supreme Federal Tribunal, Brazil’s highest court, upheld the 2012 regulation and affirmed the Brazilian Health Regulatory Agency’s (ANVISA) right to regulate tobacco products. The court held that freedom of enterprise does not prevent Brazil from imposing conditions and limitations on private activities. The court found that while businesses have rights, they must be compatible with other fundamental and constitutional rights. In the case of tobacco control, these fundamental and constitutional rights include the right to health and the right to information. The court further held that the risks associated with tobacco consumption justify the tobacco market being subjected to intense health regulations.

Because the court failed to reach a majority (5-5 tie), the decision is not binding on other tribunals, and, by not reaching a majority, the court rejected the constitutionality claim against the ANVISA regulation (“Resolução da Diretoria Colegiada da ANVISA 14/2012”). Although the decision is not binding because of a lack of quorum, it is unlikely that subsequent challenges to the regulation would be decided differently.  (Note that the decision is in Portuguese with five pages translated into English. The English translation is located in "Related Documents.")

Nicopure Labs, LLC v. Food and Drug Administration [United States] [July 21, 2017]

A manufacturer of e-cigarette devices and liquids challenged a federal regulation that deemed e-cigarettes to be “tobacco products.” This rule subjects e-cigarettes to the same federal laws as traditional cigarettes under the Tobacco Control Act (TCA). The manufacturer argued that the Food and Drug Administration (FDA), which issued the regulations, did not have the authority to regulate empty e-cigarettes or nicotine free e-liquids, because they were not made or derived from tobacco. The company also argued that the TCA’s ban on distributing free samples and pre-approval for modified risk statements was arbitrary and violated their First Amendment rights.

In this decision, the District Court upheld the FDA’s rule. The TCA gives the FDA the power to regulate “components” of tobacco products. The court found empty e-cigarettes and nicotine-free e-liquids are “components” of a tobacco product because together they make up an electronic nicotine delivery system. Further, the court found that the rule did not violate the manufacturers’ First Amendment rights because the ban on free samples was regulating conduct, not speech. The court also held that pre-approval for modified risk statements did not violate the First Amendment because it does not ban modified risk statements, it only requires the claims be substantiated. Finally, the court found because of the public health risks associated with nicotine and increasing rates of e-cigarette use in adolescents and adults, the decision to subject e-cigarettes to the TCA was not arbitrary. 

British American Tobacco Ltd v. Ministry of Health [Kenya] [February 17, 2017]

British American Tobacco (Kenya) appealed a 2016 court decision, which upheld nearly all elements of Kenya’s Tobacco Control Regulations. The appeals court ruled that the tobacco company’s appeal had no merit and affirmed the decision of the lower court. The earlier ruling upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The appeals court agreed with the lower court that the tobacco company had been given adequate opportunities for participation in the development of the regulations and that the regulations do not violate the tobacco company’s constitutional rights. 

A. Sherfudeen v. Ministry of Health and Family Welfare [India] [August 08, 2016]

Mr. Sherfudeen seeks a court order directing the Ministry of Health and Family Welfare (MOHFW) to bring into effect Section 7(5) of India's omnibus tobacco control law, COTPA, that requires the display on tobacco product packaging of tar and nicotine contents and the maximum permissible limits. The court highlighted a 2010 MOHFW affidavit which indicated that the Ministry was receiving input from the World Health Organization and the U.S. Centers for Disease Control and Prevention regarding the establishment of laboratories to undertake tar and nicotine testing. The court noted, however, that the government submitted this affidavit six years ago. The court dismissed Mr. Sherfudeen's petition, but required that the government file a new affidavit regarding its progress.

Republic of Poland v. European Parliament & Council of the European Union [European Union] [May 04, 2016]

Poland challenged the provisions of a European Union (EU) Tobacco Products Directive (TPD) that prohibit the sale of menthol and other flavored cigarettes by member states as of May 2020. The Court of Justice of the European Union (CJEU) dismissed the claim, finding that it was appropriate for the EU to adopt a directive in order to prevent barriers to the trade of such products if different member states have different laws. The court noted that the TPD is also designed to protect public health. The Court rejected Poland’s argument that the EU should have adopted less restrictive measures, such as an age-related restriction on the use of menthol products, or that the regulation of such products should have been left to individual member states to regulate, as such alternative measures did not appear to be equally suitable for achieving the objective pursued. The Court also rejected the argument that the measure breached the principle of subsidiarity (which requires that the EU should not regulate on matters that are within the competence of individual Member States).