Category: Litigation

  • Lawsuit being retired

    Lawsuit being retired

    The Altria Group and Philip Morris USA said yesterday that they and other US companies had agreed on the timing of court-ordered communications about cigarettes and smoking on television and in newspapers.

    ‘The communications, which will begin on November 26, 2017, stem from a 1999 lawsuit the federal government brought against the major domestic cigarette companies that focused on industry conduct dating back to the 1950s,’ according to a note posted on the Altria website.

    ‘The court’s order requires the companies to publish five statements related to cigarette smoking across several communication channels, including newspaper and television ads, on the companies’ websites and on cigarette packs for a year or more.’

    In describing the background to the federal government’s action, Altria said that, in 1999, the US government had filed a lawsuit in the US District Court for the District of Columbia against various cigarette manufacturers and their parent companies asserting claims under various federal statutes. ‘The lawsuit sought to recover billions of dollars in health care costs for tobacco-related illnesses,’ Altria said. ‘The government also sought disgorgement of company profits and an injunction prohibiting certain actions by defendants.

    ‘The court eventually dismissed all of the government’s claims but one, and rejected the monetary penalties the government sought.

    ‘In August 2006, the court entered judgment in favor of the government on its remaining claim. The court issued findings related to the companies’ conduct and a permanent injunction that is in place today.’

    Altria said that, as part of the injunction, the court had ordered the defendants to make certain ‘corrective statements’ related to issues raised in the litigation. And since 2006, the parties had vigorously litigated aspects of the injunction, including the content of the corrective statements.

    “This industry has changed dramatically over the last 20 years, including becoming regulated by the FDA, which we supported,” said Murray Garnick, Altria’s executive vice president and general counsel. “We’re focused on the future and, with FDA in place, working to develop less risky tobacco products.”

    Altria said that today, tobacco was one of the most regulated industries in the country. The way in which cigarettes were manufactured, marketed and sold had changed markedly since the lawsuit was filed. And, according to government data, underage cigarette smoking had declined to historical lows – from 28.3 percent in 1997 to 5.9 percent in 2016.

    ‘The 1998 tobacco settlement agreements with the state attorneys general led to significant industry changes,’ it said. ‘For example, the settlement agreements banned cigarette billboards, stadium advertisements and brand-name merchandise.

    ‘Restrictions became more extensive in 2009 when Congress gave the US Food and Drug Administration broad regulatory authority over nearly every aspect of tobacco product manufacturing and marketing.’

    “We remain committed to aligning our business practices with society’s expectations of a responsible company, said Garnick. “This includes communicating openly about the health effects of our products, continuing to support cessation efforts, helping reduce underage tobacco use and developing potentially reduced-risk products.”

  • Threat of major lawsuit

    Threat of major lawsuit

    Suing ‘big tobacco’ for the costs of smoking-related illnesses in Australia is on the radar of an organization set up by billionaire iron ore magnate and philanthropist Andrew “Twiggy” Forrest, according to a story by James Carmody, Kate Lambe and David Weber for the Australian Broadcasting Corporation.

    The $75-million Eliminate Cancer Initiative (ECI), funded by Mr Forrest and his wife Nicola, is said to be seeking legal advice on the potential to mount a case seeking billions of dollars in compensation from tobacco companies.

    ECI is quoted as saying that the potential litigation would likely be based on a landmark Canadian lawsuit where three tobacco companies were ordered to pay more than $15.6 billion in damages to smokers in Quebec.

    “What we do need to keep in mind is the impact and cost associated with those smokers who are now coming through the healthcare system,” ECI COO Bruce Mansfield said.

    “We do need to recognise that there is a cost associated with tobacco and therefore an approach that needs to be considered very sensibly is for those industries to actually take some of the burden away from the community and of course the government.”

    Mr Forrest said that to tackle cancer, smoking must also be tackled because it was the single-greatest cause of preventable death.

    The full story is at: http://www.abc.net.au/news/2017-09-30/andrew-forrest-cancer-centre-to-take-on-tobacco-industry/9004204.

  • Neutral-packaging challenge

    Neutral-packaging challenge

    Swedish Match is taking the Norwegian state to court as it seeks an injunction to delay, in respect of snus, the introduction of what is being referred to as ‘neutral’ tobacco packaging, according to a story in thelocal.no quoting an NTB news agency report.

    A law, which came in to effect on July 1, requires all tobacco companies to offer all their tobacco products in only neutral [standardized or plain] packaging by July 1, 2018.

    But Swedish Match wants a temporary injunction to be imposed in respect of snus.

    The company, which is due in court on Monday, claims that the requirement set down by the Norwegian government is in breach of EEC free trade rules, and that the deadline for the new packaging must therefore be delayed until the EEC issue has been resolved.

    “Regulation that constitutes such a strong intervention as standardized packaging is not in proportion to the possible health risks associated with snus,” Swedish Match spokesperson Patrik Hildingsson told the VG newspaper earlier this year.

    But Norway’s minister for health Bent Høie told the newspaper that he was not surprised by lawsuits from tobacco companies in the wake of the regulation introduced on July 1.

    “They did it in Australia, France and the United Kingdom, and lost everywhere,” Høie told VG.

  • PMI supports FDA proposal

    PMI supports FDA proposal

    The chief executive of Philip Morris International has said he is “extremely encouraged” by the US Food and Drug Administration’s (FDA) recent proposal to lower nicotine levels in cigarettes and nudge smokers toward less harmful alternatives such as e-cigarettes, according to a story by Toni Clarke for Reuters.

    The FDA’s announcement was “one of the best articulated positions in many years”, Andre Calantzopoulos was quoted as saying during an interview on Monday.

    Calantzopoulos challenged the view of some tobacco control experts that the industry would fight the FDA’s proposal, in court if needed.

    He said that lowering nicotine levels was only one part of the proposed policy. The agency had acted also to make life easier for e-cigarette manufacturers.

    “I don’t think the issue requires litigation or anything of this nature,” Calantzopoulos said.

    “It requires dialogue in order to see what the feasibility is, and most importantly, how all these measures are phased in.”

    Clarke’s piece is at: http://www.euronews.com/2017/08/22/philip-morris-international-ceo-cheers-us-fda-tobacco-proposal.

  • Litigation launched in China

    Litigation launched in China

    A woman in China has brought a lawsuit against the Harbin Railway Bureau that aims to have smoking on regular trains and station platforms banned, according to a GBTIMES story quoting a report in The Paper.

    The Beijing Railway and Transport Court has accepted the case and the trial is scheduled to begin on August 24.

    It is the first such lawsuit brought by a Chinese citizen against the authorities.

    The story said that the woman, Li Yan (not her real name), was surprised to find a regular K1301 train she was travelling on between Beijing and Tianjin filled with cigarette smoke on June 9.

    She noticed that many passengers and train staff were smoking in the smoking area of the train, which was under the supervision of the Harbin Railway Bureau, resulting in non-smoking passengers being subjected to second-hand smoke.

    After what was described as an unpleasant journey, Li wrote letters of complaint to the National Railway Bureau and the Health and Family Planning Commissions of Beijing and Tianjin, but each of them replied that they were not responsible for the banning of smoking on trains.

    Li then launched the lawsuit to ban smoking specifically on the K1301 train, as well as on the platforms of Beijing and Tianjin railway stations.

    She wants also all smoking areas and paraphernalia to be removed, and she wants compensation for her ticket and a gauze mask used to reduce both her smoke inhalation and anguish. The total monetary claim comes to US$18.30.

    According to the relevant regulations of Beijing and Tianjin, both cities prohibit smoking in indoor public places.

    Meanwhile, all high-speed trains in China have banned passengers from lighting up, though there are designated smoking areas aboard regular trains that travel at less than 160 kilometres per hour.

  • ‘Smoking fee’ ruled out

    ‘Smoking fee’ ruled out

    A law passed by the Oklahoma legislature with the dual purpose of raising revenue while serving as a smoking-cessation tool has been ruled unconstitutional by the state Supreme Court, according to a story by Richard Craver for the Winston-Salem Journal.

    The court’s ruling said, in part, that the smoking-cessation tax was part of an attempt by the Oklahoma legislature to generate new revenue streams to help meet the constitutional mandate to balance the state budget. The state has been dealing in recent years with a declining recurring tax revenue.

    Four bills were introduced in the Oklahoma House that listed the $1.50-per-pack levy as a tax.

    Their insertion into Senate Bill 845, however, switched the terminology from tax to smoking-cessation fee even though just $1 million of the $225 million in revenue would have been used to discourage tobacco usage among your people.

    SB845, which was passed on May 26, was pitched as a way of encouraging smokers to lower, if not eliminate, their consumption of traditional cigarettes by making cigarettes more expensive.

    Legislators sought the $225 million in revenue from SB845 as a last-minute strategy to meet the state Constitution’s balanced budget mandate, the court said. It would have been the largest amount of new recurring revenue passed by the legislature during the 2017 session.

    The court said the legislature faced a ‘constitutional conundrum’ of whether to violate the constitution with passage of SB845 or violate the balanced budget mandate.

    ‘None of this is to say that the legislature cannot choose this particular sort of regulatory tool – a sin tax – to further its goal of reducing smoking,’ the court said.

    ‘But the enormity of the revenue generated by SB845, when contrasted with the (minimal) sums earmarked for smoking cessation programs, and the scant inclusion of any other regulatory function in the bill, compels the conclusion that the generation of revenue for the support of state government was the measure’s primary purpose,’ the justices said.

    The approval of the $1.50-per-pack increase was challenged by Reynolds American Inc, Philip Morris USA and several convenience stores, wholesalers and smokers.

    The law was set to go into effect in late August.

    The state has until Thursday to file a petition for rehearing.

    Craver’s story is at: http://www.journalnow.com/business/business_news/local/oklahoma-supreme-court-rejects-per-pack-smoking-cessation-fee/article_49d41e75-6171-58a5-80fb-b0566b37b077.html.

  • Boost for ban challenge

    Boost for ban challenge

    The Swedish government has chosen not to provide written observations to the European Court of Justice (ECJ) in relation to a case being brought to overturn the EU ban on the sale of snus outside Sweden, according to a press note issued on Monday jointly by the International Network of Nicotine Consumer Organisations (INNCO) and the NNA Sweden.

    The case (Case C-151/17) is being brought by Swedish Match, and the NNA UK has joined as an intervener, based on arguments related to consumers’ human rights and the right to health.

    ‘All EU member states were asked by the ECJ to submit opinions on a legal challenge by July 7 as part of the court process,’ the note said.

    ‘In June 2017, … INNCO received reliable information that the Swedish government were planning to submit an opinion to the ECJ identical to their previous EU statements on the health risks and impacts of snus use.

    ‘Based on Sweden’s historical position this was likely to contain scientifically incorrect information, bias and out-dated references, which would have severely impacted on the judicial process of the court.

    ‘INNCO and one of their member organisations – New Nicotine Alliance Sweden – launched a joint initiative aimed at averting such misinformation on snus being sent to the ECJ by Sweden, believing their previous oblique submission to the ECJ to be in part responsible for the ban being upheld by the court in 2004.

    ‘Seventeen INNCO international member organisations wrote individual letters to the Swedish government, outlining their objections and concern were Sweden to choose, yet again, to submit an incomplete and misleading opinion on snus to the ECJ.’

    The note said that snus had a 200-year history of use in Sweden without any verifiable evidence of serious adverse health effects. It remained the most widely-used and successful method of assisting smoking cessation.

    Sweden now had the lowest smoking rate in Europe. Swedish government data had shown that the proportion of smokers among men aged between 30 and 44 fell to five percent in 2016.

    ‘Overall, just eight percent of Swedish men now smoke on a daily basis – itself a record-low percentage – compared with a European Union average of just over 25 percent,’ the note said.

    ‘There is broad academic consensus that Sweden’s success is directly attributable to the broad migration from traditional cigarettes to snus.

    ‘EU-wide adoption of snus may have contributed towards saving over 300,000 lives per year since 1992 according to a report published 2017.

    ‘The opportunity for tobacco harm reduction is unprecedented.

    ‘Sweden is the only EU country in which citizens have legal access to Snus (having gained an exemption as part of their entry to the EU in 1995). Consequently, it is the only country in the world with access to reliable historical data and observations on long term snus use.

    ‘Sweden’s evidence is therefore invaluable to the ECJ and public health regulators currently deprived of qualitative snus data, in the forthcoming re-examination of the current EU snus ban.

    ‘We believe that INNCO’s global civil society initiative has been instrumental in influencing the Swedish government’s decision to offer no comment.

    ‘In so doing, they have chosen to place the value of health and respect for human rights above ideology.’

    ‘The Swedish government might have chosen to replicate their previous incomplete, opaque submission confirming their well-documented intolerance of all nicotine use. Choosing silence over misinformation was a courageous move in the right direction towards acknowledging harm reduction and human rights.’

  • FDA on shaky ground

    FDA on shaky ground

    The US Food and Drug Administration’s policy shift toward reducing nicotine in cigarettes is likely to attract significant tobacco-industry litigation, according to a Bloomberg News story relayed by the TMA.

    In announcing a week ago its Comprehensive Plan for Tobacco and Nicotine Regulation, the FDA said that it would require the reduction of cigarette nicotine deliveries to non-addictive levels if that were found to be technologically and practically feasible.

    The Bloomberg piece speculated that the tobacco industry would go to court to stop the FDA from imposing or enforcing its regulatory framework.

    The article noted that, according to tobacco lobbyists, the industry could argue that the policy amounted to a de facto ban on cigarettes.

    And while a 2009 law gave the FDA the power to regulate cigarettes, it explicitly stated the agency did not have the power to ban them.

    Even some anti-smoking advocates think the FDA is on shaky ground with its proposal. “The legal mandate that they have to do this is extremely weak,” Clive Bates (pictured) was quoted as saying. “They say they’re not banning cigarettes, but they are banning cigarettes with any meaningful level of nicotine in them.”

    Lastly, the Bloomberg piece noted that FDA Commissioner Scott Gottlieb, who was confirmed in early May, was ‘turning out to be among the most aggressive (and unpredictable) cabinet officials during the early days of the Trump administration’, which favored deregulation.

    ‘It’s not clear whether Gottlieb personally sought President Trump’s counsel before making the announcement,’ the piece said. ‘An administration official says the White House supports the policy and disagreed that it was a break from Trump’s anti-regulation agenda.’

  • Setback for vapor products

    Setback for vapor products

    In a 93-page ruling, US district judge Amy Berman Jackson has upheld the Food and Drug Administration’s decision to regulate vapor devices and cigars in the way that cigarettes are regulated, according to a story in the Washington Post relayed by the TMA.

    Jackson concluded the agency had “acted within the scope of its statutory authority”.

    She rejected arguments by Nicopure Labs and the Right to be Smoke-Free Coalition, which includes the American Vaping Association, vapor companies and trade groups, that said the FDA’s creation of the Deeming Rules exceeded its authority and violated the Administrative Procedure Act.

    Under the FDA rule, she said, vapor manufacturers “are now required to tell the 30 million people who use the devices what is actually in the liquid being vaporized and inhaled”.

    “We are still reviewing judge Jackson’s opinion,” said Gregory Conley, president of the American Vaping Association. “The legal and legislative processes are both long roads with plenty of bumps along the way. The fight to save vaping is far from over.”

    Attorney Azim Chowdhury, representing the Right to be Smoke-Free Coalition, said in a tweet that they were considering appeal options.

  • Industry accused of murder

    Industry accused of murder

    The US anti-tobacco organization Action on Smoking and Health (ASH) says that it has released a new video to draw attention to a Dutch criminal complaint against the tobacco industry for murder, attempted murder, manslaughter, attempted manslaughter, inflicting and attempting severe physical harm and deliberately harming health.

    “I cannot understand that when you hit someone with a hammer, you are being prosecuted for serious harm. Or when you administer poison, you are prosecuted for poisoning. But the tobacco industry is left untouched while ultimately doing the same,” said the filing Dutch Criminal Lawyer Bénédicte Ficq.

    In a press note issued through PRNewswire, ASH said that ‘tobacco’ was the only legal consumer product that killed its consumers when used as intended. ‘Cigarettes’ were also highly addictive, trapping users in a deadly addiction that many struggled to overcome.

    ‘The Oregon Supreme Court has said that the deceptive promotion of tobacco products could “constitute at least second-degree manslaughter”,’ ASH said. ‘The lethal consequences of smoking have been known to tobacco corporations for decades, yet they continue these activities, with full knowledge that millions of deaths will be caused by the ordinary use of cigarettes.

    ‘The tobacco industry has repeatedly been held civilly liable, but there has not been any movement in criminal court, yet.’

    ASH’s executive director Laurent Huber said that a US state attorney general or a district attorney could decide to file criminal charges against a tobacco company for deaths the tobacco companies had caused. “At this point, we are just lacking the political courage to see a criminal case through,” Huber said.

    ASH says that it has been researching the criminal liability and potential human rights violations of the tobacco industry for ‘years’.

    ‘Criminal charges are feasible and legally sound,’ it says. ‘The Dutch case can pave the way for other countries to take similar action.’