Category: Litigation

Looming health concerns
The fundamental right to health in the UK will be lost if the government proceeds with its plan not to convert the EU Charter of Fundamental Rights into UK law, as announced in the white paper on the Great Repeal Bill, according to an editorial in the British Medical Journal by Peter Roderick and Allyson M. Pollock
‘The value of this charter was shown last year, in both EU and UK courts, when the tobacco industry unsuccessfully challenged the new rules on plain packaging of cigarettes,’ the editorial said.
‘One of the industry’s arguments was that the rules violated its rights. Both the EU Court of Justice and the High Court in London used the right to health in article 35 of the charter as a counter weight to that argument.
‘Mr Justice Green made the strongest judicial statement yet in the UK on this critical point: [Tobacco regulations] are health measures. This is an area of legislative activity to which immense importance is attached and legislatures and decision makers are habitually accorded a wide margin of appreciation. Health is recognized as a fundamental right. Article 35 of the Fundamental Charter identifies access to health care as a fundamental right but also [original emphasis] makes a statement as to the weight to be attached to this right, namely “high.”‘
The editorial said that the government’s proposal not to maintain the fundamental rights charter meant that after Brexit it would not be possible for a UK judge to use article 35 or other charter rights when interpreting UK laws that had derived from the EU. ‘These include laws to protect public health such as on pesticide residues in food, health and safety at work, management and disposal of hazardous substances, regulation of medicinal products, and air and water quality,’ it said. ‘The change will considerably weaken the ability of judges in future to uphold the law if it is challenged by industry in the courts.’
The editorial is at: http://www.bmj.com/content/357/bmj.j2013.
May 5, 2017
Monitoring bad behaviour
The Canadian Centre for Policy Alternatives has published an article in the May issue of its Monitor magazine that is said to focus on the ‘ruthless’ and ‘reprehensible’ behavior of some of the tobacco executives responsible for the development and perpetuation of the tobacco epidemic.
“Much has been said about the misconduct of cigarette companies,” said Garfield Mahood, president of the Campaign for Justice on Tobacco Fraud (CJTF) and co-author of the article. “But little if anything has been published that throws a spotlight on the behaviour of the individual executives behind the alleged fraud that has caused or contributed to over a million deaths in Canada.”
Meanwhile, Brian Iler, co-founder of a Toronto law firm and co-author of the article, said that justice required that individuals be held accountable for civil or arguably criminal misbehaviour. “Tobacco industry documents unearthed in Canadian and American litigation reveal the unconscionable behaviour of these men,” he said. “We think that it is important that we bring this misconduct to the attention of Canadians.”
The article, “I foresee serious criminal liability problems”, at https://www.policyalternatives.ca/publications/monitor/”i-foresee-serious-criminal-liability-problems”, is said to reveal that the provinces are suing the tobacco industry, that the claims to date exceed $120 billion, and that the alleged wrongful behaviour, if proven in court, would be the largest and most destructive fraud in the history of Canadian business or public health. ‘Yet a national poll found that less than one percent of Canadians are aware that these governments are suing tobacco manufacturers for fraud,’ a CJTF press note said. ‘The Monitor article attempts to fill this knowledge void.’
The Campaign for Justice on Tobacco Fraud is a health organization incorporated under the Canada Not-for-profit Incorporations Act to reduce tobacco-caused morbidity and mortality.
May 4, 2017
Mighty pleads for license
Photo by Beegee49
Hundreds of thousands of people in the Philippines could be negatively affected if the government makes good its threat to close home-grown tobacco company Mighty Corp, according to a story in The Manila Times.
Retired regional trial court judge, Oscar Barrientos, who is executive vice president of Mighty and the company’s spokesperson, said on the weekend that about 7,000 employees and 55,000 tobacco farmers, along with their estimated 350,000 family members and dependents, relied on the company for their livelihoods.
He called on the Bureau of Internal Revenue [BIR] to act more responsibly in making statements about Mighty and to take into consideration the repercussions that would be felt following cancellation of the license to operate of the company.
“The BIR should consider that this case impacts Mighty’s employees, tobacco farmers and their families, as well as suppliers and distributors who depend on the company,” he said.
Barrientos called on the government to ensure due process for the tobacco firm as it faces charges of tax evasion.
“We reiterate our pledge to fully co-operate with the government,” Barrientos said. “But while we welcome the filing of these charges as an opportunity to clear the name of the company and its officers, we hope that the BIR will also show prudence in the conduct of its probe of the firm,” he said.
Earlier, Mario Cabasal, president of the National Federation of Tobacco Farmers Associations and Co-operatives, had said that tobacco farmers would probably bear the brunt if Mighty’s operation were shut down.
“Most of us depend on Mighty for the purchase of our tobacco,” said Cabasal. “They are our biggest buyer of local tobacco. If the government makes good its threat to close down Mighty Corp, tobacco farmers will bear the brunt of the closure.”
April 25, 2017
Tobacco divestments sought
The High Court of Bombay has issued notices to India’s Union government asking it to respond to a public interest litigation (PIL) filed by a group of health experts that has asked the court to direct the government to divest its holdings in tobacco companies, according to a story in the Economic Times relayed by the TMA.
These investments include the government’s Rs1.07 trillion (US$16.6 billion) stake in cigarette company ITC Ltd.
The court is due to decide on April 27 whether to admit the PIL.
The government, through its insurance arms, Life Insurance Corporation of India, General Insurance Corporation of India, the New India Assurance Company, Oriental Insurance Company Limited and Specified Undertaking of the Unit Trust of India (SUUTI), holds a 30.25 percent stake in ITC.
At the same time, the New India Assurance Company holds a 1.7 percent stake in VST Industries.
The petitioners want the court also to prohibit the government from making fresh investments in tobacco companies.
April 20, 2017
Widow to be compensated
Photo by jocovett
A tribunal has found that the widow of a man who served with the Royal Australian Navy is entitled to compensation because the navy was partly responsible for his tobacco smoking, which was said to have led to his death in 2015, according to a story by Andrew Taylor for the Sydney Morning Herald.
Christopher Cooper began smoking shortly after he enlisted in the navy aged 15.
He lodged a claim for compensation in 2014, shortly before his death, stating his illnesses had been caused by smoking and exposure to passive smoking within a ship environment during his 23 years of military service.
His widow Bronwyn Cooper is entitled to compensation following the decision of the Administrative Appeals Tribunal that her husband’s smoking habit was caused by his military service.
‘The tribunal is satisfied that the deceased’s employment with the Royal Australian Navy did contribute to a significant degree to his smoking,’ it said.
April 18, 2017
Plain packs appeal disallowed
All cigarettes in the UK will have to be sold in standardized packaging from next month after the country’s supreme court refused permission for the tobacco industry to appeal against laws requiring the use of such packaging, according to a story by Chris Johnston for The Guardian.
The Department of Health said that following the supreme court’s ruling the industry had no further recourse to domestic legal challenges, meaning that rules governing standardized packaging of cigarettes would come into force on May 20.
The rules requiring standardized tobacco packaging were introduced in May 2016.
Tobacco companies went to the supreme court after the court of appeal in November rejected their attempt to prevent the introduction of standardized tobacco packaging.
British American Tobacco, Imperial Brands, Japan Tobacco International (JTI) and Philip Morris International claimed that the packaging law would infringed their human and intellectual property rights.
The health secretary, Jeremy Hunt, welcomed the supreme court’s decision, saying: “Standardised packaging will cut smoking rates and reduce suffering, disease and avoidable deaths”.
The Guardian story is at: https://www.theguardian.com/society/2017/apr/11/uk-supreme-court-denies-tobacco-firms-permission-for-plain-packaging-appeal.
April 13, 2017
Tobacco control in court
Photo by Leandro’s World Tour
The merits or otherwise of Uganda’s Tobacco Control Act (TCA) are to be fought out before the country’s Constitutional Court, according to a story by Anthony Wesaka for the Daily Monitor.
The TCA came into force on November 28, 2015.
Through the Attorney General (AG), the government is defending the TCA on the grounds that the restriction of the use of tobacco in public places is proportionate given the harmful effects tobacco use has on the health of consumers.
In addition, the government says that a TCA requirement for graphic health messages that occupy no less than 65 percent of the principal display area of cigarette packs is intended to communicate the harmful effects of tobacco use to all, including the illiterate and children.
Meanwhile, a civil society organization, the Centre for Health, Human Rights and Development, has applied to the court to join the government in defending the TCA ‘on behalf of the general public’.
The government’s defence is being mounted in response to a court petition filed by British American Tobacco challenging a number of provisions of the TCA.
BAT is said to maintain that the 65 percent health warning unreasonably encumbers the use of its trade marks on product packaging, as protected under the Trademarks Act 2010, and also impacts on the goodwill associated with its brands.
In its main petition before the court, BAT contends that the TCA Act has the effect of unjustifiably singling out the tobacco industry for discriminative treatment and amounts to a ban on the right to trade and consume a legal product, which contravenes the right to freedom from discrimination.
April 6, 2017
iQOS under scrutiny in Israel
Photo by Genista
Israel’s sole cigarette manufacturer, Dubek Ltd., has filed a lawsuit in the High Court of Justice claiming that the Health Ministry is showing ‘favoritism’ by allowing Philip Morris International to market its heat-not-burn device, iQOS, on the domestic market, according to a story by Judy Siegel-Itzkovich for the Jerusalem Post, relayed by the TMA.
Dubek says that this is in violation of the law that restricts the advertising and marketing of tobacco products.
It says also that the Tax Authority does not levy sales taxes on iQOS, causing ‘a huge loss of revenue to the state coffers’.
The Health Minister, Ya’acov Litzman, reportedly said that the government would not regulate the sale of iQOS until the ‘FDA’ had ruled that the product was harmful.
Meanwhile, the Israel Medical Association’s Society for the Prevention of Smoking and Smoking Cessation said PMI had chosen Israel to be among the first countries to market iQOS, thus turning its population into ‘guinea pigs’ in a ‘huge experiment for which we will all pay’.
March 15, 2017
Supporting the small guy
The Cause of Action Institute (CoA Institute) on Tuesday filed an amicus curiae brief in support of a challenge to a new regulation that threatens small premium-cigar businesses in the US.
The CoA Institute filed its brief in support of the plaintiffs: the Cigar Association of America, the International Premium Cigar and Pipe Retailers Association, and Cigar Rights of America.
These groups have brought a lawsuit against the Food and Drug Administration challenging a new regulation with what the CoA Institute described as far-ranging, negative economic impacts on consumers and small businesses engaged in the premium cigar industry.
‘The new regulation finalized by FDA unfairly targets America’s smaller-scale cigar manufacturers, trampling on a proud American heritage and eliminating economic opportunity for many small businesses,’ the CoA Institute said in a press note.
“Common sense appears to be dead at the FDA,” Patrick Massari, assistant vice president at the CoA Institute was quoted as saying. “Inexplicably, the FDA ignored tens of thousands of comments from the premium cigar industry, Congress, local government, media, and the citizens of the United States, particularly those affected in ways large and small by FDA’s power grab. Under this new rule, the tradition of premium, hand-rolled cigars handed down by generations will turn into a corporate profit mill.”
‘In its brief, CoA Institute argues that FDA failed to conduct a legally sufficient cost-benefit analysis, as required by federal law and Executive Orders issued by President Clinton and President Obama,’ the press note said. ‘Specifically, President Clinton’s 1993 EO 12866 requires that “[e]ach agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations. [emphasis added]’
‘The limited analysis FDA produced either omitted or glossed over several important costs:
- First, premium cigar prices will substantially increase for all consumers as a result of the rule;
- Second, the sheer compliance costs of FDA’s regulation will be so high that smaller, family-owned businesses will no longer be able to comply;
- Third, the resulting government-defined marketplace will cripple consumer choice and bar future innovation.
‘Many companies will likely have no choice but to sell out to larger corporations, which will then dominate the market as regulation-protected monopolies.
‘The FDA itself admits that it failed to do any analysis on consumer choice, saying: “We lack a baseline estimate of consumer valuation of tobacco product variety, making it impossible to estimate how consumers who continue to use tobacco products would value the potential loss of variety due to product exit under this final rule”. Instead, the FDA ignored this essential element of cost-benefit analysis by pretending that such data does not exist.
‘In its brief, CoA Institute calls on the Court to order FDA to reopen its cost-benefit analysis and to vacate and remand the final rule.’
February 23, 2017
UK challenge to snus ban
A consumer group that aims to ensure smokers have safer alternatives to cigarettes is today challenging the UK government in the High Court in a bid to lift an EU ban on snus.
The New Nicotine Alliance (NNA), led by Professor Gerry Stimson of Imperial College London, wants snus, which is used by a fifth of all men in Sweden, to be legalised.
‘Sweden has by far the lowest rate of smoking in the developed world,’ NNA said in a press note. ‘Government figures show that just five percent of its men aged 30 to 44 years old are regular smokers compared with 22 percent in the UK.
‘Scientists conclude that the widespread use of snus as an alternative to smoking is the reason that diseases including lung and mouth cancer are far lower in Sweden.’
“The UK is failing very badly compared with Sweden at bringing down smoking rates,” Stimson was quoted as saying. “It is a tragedy that we have four times as many men in their thirties smoking than in Sweden and disastrous that we are banning the most successful alternative to the biggest cause of preventable death.”
Stimson is scheduled to tell the High Court of research showing that male lung cancer rates in the UK could more than halve if it had similar levels of snus use to Sweden.
He is said to be particularly angered that some Swedish and Norwegian users have started smoking when they move to the UK because they can’t buy snus in the UK.
“Everyone was taken by surprise by the way millions of smokers flocked to e-cigarettes to help them quit smoking,” said Stimson. “Yet nine million people in the UK continue to smoke and proven alternatives like snus should be available to help those who want to quit.
“Smokers should have the widest choice of reduced risk products so that they can find the one that works for them.”
In parallel with today’s legal attempts to overturn the ban, a group of 22 Conservative MPs has written to the Health Secretary urging him to include snus in his forthcoming Tobacco Control Plan which will cover Britain’s smoking policy after Brexit.
January 26, 2017