Category: Litigation

Smoker loses custody battle
A Spanish father has lost custody of his children after the provincial court of Cordoba ruled that his addiction to tobacco was toxic to his children’s health, according to a Euronews story.
The father had been sharing custody of his children, aged 10 and 13, with his ex-wife since his divorce in 2017.
The children had complained that they had to share an ‘environment full of smoke’ in their father’s house, according to the judgement seen by Euronews.
‘In this situation and wanting to avoid a health risk for the minors, it is evident that the father’s way of living puts in danger the health of his children in an irresponsible way. He ignores everything else except his addiction.’
The judgement added that it wasn’t logical for the children to be in a place that would present a risk to the public.
In Spain, a 2011 anti-tobacco law banned smoking in enclosed public spaces and accesses to hospitals, schools, children’s playgrounds, and smoking rooms in airports.
At the time, it was considered one of the most restrictive tobacco laws, but it stopped short of outlawing smoking in the presence of minors in private places, such as vehicles or homes.
February 7, 2019
Documents in plain view
The US-based Campaign for Tobacco Free Kids (CTFK) has won a legal battle in the UK where it received authorization from the High Court in London to make public the documents used in a recent case over standardized tobacco packaging, according to a story in the British Medical Journal relayed by the US-based TMA.
The High Court ruled that the documents submitted to the court by tobacco companies challenging the proposed new law, and those from the health secretary defending it, should be released to the tobacco control organization.
The story said that British American Tobacco, Philip Morris, Imperial Tobacco, JT International and Gallaher had challenged planned UK regulations introducing standardized packaging for tobacco products.
They had argued that the regulations were unlawful under international, EU, and domestic laws.
The High Court ruled against them in 2015, and appeals were unsuccessful.
January 25, 2019
Tobacco firms accused
Sri Lanka’s Health Minister Dr. Rajitha Senaratne yesterday accused some locally-based tobacco companies of being involved in a ‘racket to mislead the public on the use of cigarettes in the country,’ according to a story in The Colombo Gazette.
Senaratne said that some companies were importing illicit cigarettes and distributing them in the market to give the impression that there was a high number of people smoking cigarettes in the country.
He said that Sri Lanka had implemented nine out of the 10 recommendations of the World Health Organization (WHO) on limiting the use of cigarette use in the country.
The Minister said also that taxes on cigarettes had been increased to discourage their use.
It wasn’t clear from the story whether the minister believed that tobacco companies were using the illegal trade to promote, say, the normalization of smoking within society; or whether such promotion was a side-line of the money-making scheme that is the illegal trade.
January 21, 2019
IQOS given EU protection
The UK’s High Court has granted an interim injunction with pan-EU effect against a Chinese manufacturer, Shenzhen Shunbao Technology, which was attempting to launch in the EU a product similar in appearance to Philip Morris International’s IQOS, according to a Lexology story relayed by the TMA.
PMI was said to have become aware that Shunbao was marketing a tobacco heating system in China that was similar in appearance to the IQOS holder and brought an action in China.
After learning of Shunbao’s intention to enter the EU market, PMI filed a case in the UK High Court for infringement of a Registered Community Design protecting the design of the IQOS holder.
In considering the factors for assessing whether an interim injunction application should be granted, the judge was reportedly satisfied that there was a serious issue to be tried and that PMI had a “good arguable case” on infringement.
He was satisfied also that there was a real threat of infringement in the EU, since Shunbao’s online store indicated that it would be exhibiting at the Vaper Expo in the EU.
Balancing other factors, he found that the reputational harm to PMI was likely and difficult to quantify.
Since he was satisfied that damages would not be an adequate remedy for PMI and that the balance of convenience favoured granting an interim injunction, the interim injunction was ordered.
January 16, 2019
E-liquid rules 'defy logic'
The owner of two vaping stores in Portland, Oregon, US, is asking a judge to throw out a state list of banned words and pictures on vaping liquid packages, according to a story by Aimee Green at oregonlive.com.
Paul Bates says the state’s “ridiculous” rules defy logic. For instance, he says in his lawsuit that the packages can’t use the words ‘apple or ‘strawberry’ even to describe the apple- or strawberry-infused liquids he sells for use with electronic cigarettes.
The same goes for pictures of apples or strawberries.
Employees at his Division Vapor stores in Southeast and Northeast Portland use white stickers to cover images on the labels that don’t comply with state rules, and that amounts to censorship and a violation of free speech, the suit contends.
“The new rules are just mind-boggling,” Bates reportedly told The Oregonian/OregonLive on Wednesday.
His suit lists the Oregon Health Authority, which is responsible for creating the banned list, as a defendant. Delia Hernandez, a spokeswoman for the agency, declined comment because of the pending litigation.
Hernandez, however, said the recent packaging rules were sparked by concern from the state lawmakers, who passed a law in 2015 requiring that packaging not be attractive to children.
In response, the Oregon Health Authority adopted a rule that said vaping liquid labels can’t depict images that might be appealing to minors – including those of “celebrities, athletes, mascots, fictitious characters” or “food or beverages likely to appeal to minors such as candy, desserts, soda, food or beverages with sweet flavors including fruit or alcohol”. This year, health officials added words, such as “tart, tangy, sweet, cool, fire, ice” and the names of fruits.
Bates, who buys his entire inventory from other companies that mostly don’t comply with Oregon regulations, said the health authority hadn’t forced him to follow the latest rules – yet.
The suit was filed in Multnomah County Circuit Court. Beaverton attorney Herbert Grey is representing Bates
December 14, 2018
HNB grabs big market share
More than 230 million packs of heat-not-burn (HNB) sticks were sold in South Korea between January and September, according to a story by Kim Hyun-bin at koreatimes.co.kr citing figures published by the Ministry of Economics and Finance.
This means that HNB sticks have captured more than nine percent of total cigarette sales since Philip Morris launched its IQOS device in May 2017.
The Government is said to be concerned that HNB devices are popular among teenagers and that this popularity is spreading.
According to the Korea Centers for Disease Control and Prevention’s Young Adults’ Health Condition Report, the ‘smoking’ rate among middle to high school students rose to 6.7 percent from 6.4 percent last year.
About 9.4 percent of male students smoked, down from 9.5 percent in 2017, while the smoking rate among female students rose from 3.1 percent to 3.7 percent during the same periods.
Of those male and female students who reported smoking, 43 percent were said to have used HNB devices.
The story quoted ‘experts’ as saying that HNB devices were popular among teenagers as they created less odor than did conventional cigarettes. Most students smoked discreetly because they feared being caught by teachers and parents.
The risks associated with using HNB devices were called into question after the Ministry of Food and Drug Safety released a report stating HNB devices delivered five cancer-causing substances and tar levels in excess of those delivered by combustible cigarettes.
The Ministry announced the results after testing IQOS, British American Tobacco’s glo device and KT&G’s Lil.
Philip Morris is suing the Ministry for declining to provide information on its research methods.
December 10, 2018
Tobacco firms in the clear
A Dutch appeals court yesterday refused to order public prosecutors to open a criminal investigation into the activities of tobacco companies, according to an Associated Press story.
In a written ruling that upheld an earlier decision by prosecutors not to open an investigation, The Hague Appeals Court said that because cigarettes adhered to European Union regulations, there was no criminal behaviour by tobacco companies.
‘The fact that cigarettes can have an addictive character and can create health risks changes nothing,’ the court said.
Dutch lawyer Benedicte Ficq in 2016 sought a criminal prosecution on behalf of ex-smokers and a youth smoking prevention organization. Hospitals, doctors and other groups later joined the action.
Ficq called for the prosecution of Philip Morris, British American Tobacco, Japan Tobacco International and Imperial Tobacco Benelux.
Ficq’s complaint alleged that the tobacco companies were liable because of ‘the large-scale, decades-long and ongoing production and sale of addictive tobacco products in the Netherlands’. It alleged also that tobacco companies deliberately declared cigarette delivery levels of tar, nicotine and carbon monoxide that were lower than the actual delivery levels.
Jan Hein Straeter, director of the Dutch cigarette makers’ association, the VSK, welcomed the court’s ruling.
“The appeal court’s decision is no surprise for the VSK, given that the public prosecutor’s office already rejected the complaint in February in a strongly worded decision and concluded that tobacco companies adhere to the law,” Straeter said.
Meanwhile, a Dutch News story reported the court as saying that the complainants in the case were ‘at the wrong address’. Instead, they should be pressuring the government to change the laws.
December 7, 2018
Snus ban stands
As had been expected, the European Court of Justice (ECJ) has upheld an EU ban on Swedish snus.
Swedish snus is banned in all EU countries except Sweden.
The ECJ’s ruling came in response to a challenge brought by Swedish Match (SM) against the validity of the snus ban under EU law. The challenge was originally brought in the UK and was referred by the High Court there to the ECJ.
In a note posted on its website on November 22, SM said that the ECJ had published its judgment ‘concerning the prohibition to sell Swedish snus to other European Union member states’. ‘The court rules that Swedish snus will continue to be excluded from the EU’s internal market,’ it said.
‘In its judgement the court states that EU legislature has broad discretion within the area at issue and that this implies that judicial review is limited. These limitations apply both to measures decided by the EU legislature and to the basic facts on which these measures have been based. Based on such limited review the court does not find that the ban on snus is manifestly inappropriate.
‘The judgment of the ECJ cannot be appealed which leaves a future removal of the ban essentially a political issue.’
The use of snus is far safer than smoking cigarettes, and snus does not come with the environmentally-damaging filters that cigarettes include. And snus has proved to be an acceptable alternative for many smokers.
November 26, 2018
Heated court battle
South Korea’s food and drug watchdog said today it had filed a response to Philip Morris Korea’s lawsuit over the disclosure of information related to research on the harmful substances found in alternative tobacco products, according to a Yonhap News Agency report.
After filing a statement to the Seoul Administrative Court on Saturday, the Ministry of Food and Drug Safety said it had briefed a local law firm to prepare for a legal battle with PM Korea.
The Yonhap story said that the Ministry and PM Korea were expected to engage in a ‘fierce legal battle’ once the court had set a hearing schedule.
The lawsuit came after the Ministry said in June that five cancer-causing substances were found in heat-not-burn tobacco products sold in the local market, with the level of tar detected in some of them exceeding that of conventional cigarettes.
The ministry made the announcement after investigating PM’s IQOS, British American Tobacco’s glo and KT&G’s lil.
Four months later, PM Korea sued the Ministry for declining PM’s request to provide certain information about its research results, including the method of analysis and the experimental data.
PM has claimed that, compared with conventional cigarettes, IQOS delivers lower levels of harmful compounds.
The Ministry has reportedly expressed its displeasure at the lawsuit, saying PM Korea had skipped several administrative procedures aimed at ironing out differences.
November 26, 2018
Picturesque questions
A court in Turkey has rejected a claim by a man who said that a graphic cigarette-pack warning included a picture of him in hospital with a breathing tube in his mouth, according to a Hurriyet Daily News story.
The man, who lives in the western province of Tekirdağ and who was identified only as İbrahim A., had sued five tobacco companies in 2012.
He had asked for TL302,000 in compensation for the use of the picture without his permission.
According to the plaintiff, the photo was taken in a state hospital’s intensive care unit where he had been taken after suffering breathing problems in June 2009.
But attorneys for the tobacco companies said the man in the picture was not İbrahim A. “The picture [on the cigarette packs] was dated to 2005 and picked from the European Commission’s reference list,” they said.
The court announced its verdict this week, citing an expert report and saying that whereas the man pictured on the packs was a ‘bit similar to the plaintiff’, ‘it was not him’.
In dismissing the case, the court stressed the ‘mismatch’ between the date the picture on the packs had been taken and the date İbrahim A. had been hospitalized.
November 2, 2018