PMI tobacco control legal challenges

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PMI uses the law to challenge tobacco control regulations. Figure 1 (below) gives an overview of some of these challenges. 

Figure 1. Legal challenges made by PMI in the decade from 2008 to 2019.1

PMI has legally challenged tobacco control regulations across the globe, including: 

  • Comprehensive No Smoking Ordinance (2010 and 2016) and Tobacco-Free Generation Ordinance (2016) in Balanga, Philippines. A front group for the world’s biggest tobacco companies, including PMI, called the Philippine Tobacco institute (PTI) sued the city of Balanga in August 2017 over the Comprehensive No Smoking Ordinance, which it argued was “arbitrary and oppressive” and cost PMI USD$420,000 a month in lost sales. In July 2018, regional courts ruled in PTI’s favour, noting that although the city’s tobacco control efforts were “commendable”, they were also unconstitutional. PTI launched another lawsuit in May 2018 to challenge the constitutionality of the city’s Tobacco-Free Generation Ordinance.2
  • The Cigarettes and Other Tobacco Products (Packaging and Labelling) Second Amendment Rules, 2018 text and pictorial health warnings law in India. PMI affiliate Godfrey Phillips India sought a stay of implementation of new legislation requiring health warnings to increase to cover 85% of the surface of cigarette packaging, from the High Court of Karnataka in Bangalore, India. The Court rejected the request for stay in August 2018. The legality of the Rules themselves was at the time pending in the Supreme Court.3
  • The May 20, 2016 Decree plain packaging law in France. In December 2016, the Conseil d’Etat (the Council of State, the highest administrative jurisdiction in France) dismissed a six-part legal challenge jointly brought against the plain packaging law by JTI, Philip Morris France, BAT France, a tobacco paper manufacturer and The National Confederation of Tobacco Retailers of France (Confédération Nationale des Buralistes de France).4
  • In 2013, the mayor of Popayán, a city in southwestern Colombia, issued a decree prohibiting tobacco sales within 500 metres of schools, libraries and health institutions. Following heavy lobbying from Coltabaco, a Philip Morris affiliate, the radius was decreased to 200 metres. Coltabaco sued Popayán in March 2015, arguing that a mayoral decree was insufficient to effect legitimate regulation. Coltabaco won its lawsuit in September 2015.5
  • The Standardised Packaging of Tobacco Products Regulations 2015 (UK). Following the passage of the legislation in March 2015, PMI and others launched a legal action, which it lost in May 2016 (the day before the legislation was due to come into force).67
  • The 2014 EU Tobacco Products Directive (TPD). PMI and BAT attempted to invalidate the TPD as a whole, or various provisions within it, but this legal challenge was dismissed in the European Court of Justice in May 2016.8 More details can be found on the page TPD: Legal Challenges.
  • The Ministry of Public Health Notice of Rules, Procedures, and Conditions for the Display of Images, Warning Statements, and Contact Channels for Smoking Cessation on Cigarette Labels of 2013 (Thailand). In July 2013, Philip Morris Thailand and Japan Tobacco International (JTI) Thailand requested a temporary injunction against an increase of picture and text health warnings from 55 to 85 percent of the front and back of cigarette warnings. Though their request was initially granted in August 2013 in the Central Administrative Court of Thailand, the injunction was reversed in May 2014 by the Supreme Administrative Court following appeal by the government. PMI and JTI ultimately withdrew their legal challenge.9
  • Following heavy criticism of its “Be Marlboro” campaign worldwide (see below), Germany banned PMI from displaying “Be Marlboro” advertising in the country. A German court overturned the ban in 2015, stating that the wording of the advertisements did not explicitly target younger than legal age smokers.10
  • National Systems of Health Oversight RDC No. 14/2012 Brazil. The Brazil Health Regulatory Agency’s (ANVISA) resolution No. 14 banned tobacco additives and flavours. The National Confederation of Industry (Confederação Nacional da Indústria) challenged the ban as an unconstitutional use of regulatory power. In February 2018, the highest court in Brazil, the Supreme Federal Tribunal, upheld the 2012 ban and reaffirmed the right of ANVISA to regulate tobacco products.11
  • The Tobacco Plain Packaging Act 2011 (Australia). PMI fiercely opposed the legislation, fearing that it might set a global precedent. The company fought this legislation unsuccessfully on three fronts: 
    • World Trade Organization (WTO) challenge: In 2014, PMI supported a request by the Dominican Republic government before the WTO Dispute Settlement Body, alleging that Australia’s plain packaging laws breach the WTO’s General Agreement on Tariffs and Trade (GATT), Agreement on Technical Barriers to Trade (TBT) and agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).12 Similar requests were submitted by Ukraine, Cuba, Indonesia and Honduras, and furthermore, a record number of more than 40 WTO members joined the dispute as third parties.13
    • Constitutional challenge: In March 2012, PMI supported a claim made by British American Tobacco (BAT) in December 2011 before the Australian High Court that plain packaging was in breach of the Australian constitution.14 On 15 August 2012, the Hight Court ruled that plain packaging was not in breach with the Australian constitution as there had been no acquisition of property as alleged by the tobacco companies.13
    • Bilateral Investment challenge: In 2011, PMI started legal proceedings against the Australian government for allegedly violating the terms of The Australia – Hong Kong Bilateral Investment Treaty.15 In December 2015, The Permanent Court of Arbitration issued a unanimous decision that it had no jurisdiction to hear the claim. For more information on all three claims go to Australia: Challenging Legislation.
  • Executive Decree No. 611 passed on 3 June 2010 in Panamá. Philip Morris Panamá joined onto a claim of unconstitutionality brought by British American Tobacco (BAT) against a ban on tobacco advertising, promotion and sponsorship (TAPS) and tobacco product display at the point of sale. BAT Panama claimed the ban violated freedom of expression and property rights, among others. The Supreme Court ruled in May 2014 against BAT, noting that, among other things, freedom of expression could be restricted in order to protect public health.16
  • 2010 Amendment to the 1973 Act relating to the Prevention of the Harmful Effects of Tobacco (the Tobacco Control Act) in Norway. The Norwegian display ban on tobacco products came into effect on 1 January 2010 after an amendment was passed by the government in favour of the prohibition of visible tobacco products, smoking accessories and vending machines of tobacco products. PMI unsuccessfully challenged the ban as imposing a barrier to trade; the Oslo District court ruled in favour of the display ban in September 2012.17
  • Ordinance 514, dated 18 August 2008, and Decree 287/009 dated 15 June 2009 (Uruguay). PMI unsuccessfully challenged the Uruguayan Tobacco Control Act which included a mandate for 80% health warnings on tobacco packets. The case was decided in favour of public health in 2017.18 PMI brought its claim under the Switzerland-Uruguay Bilateral Investment Treaty at the World Bank’s International Center for Settlement of Investment Disputes. The tribunal ruled in favour of Uruguay in July 2016.19 

Tobacco Tactics Resources

 

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References

  1. Stopping Tobacco Organizations and Products, Addiction At Any Cost: Philip Morris International Uncovered, STOP report, 20 February 2020,accessed February 2020
  2. T. Elliot, Big Tobacco’s shadowy new play, The Sydney Morning Herald online, 18 May 2019, accessed February 2020
  3. Campaign for Tobacco-Free Kids, Godfrey Phillips India Limited vs. Union of India, Tobacco Control Laws website, undated, accessed February 2020
  4. Campaign for Tobacco-Free Kids, Japan Tobacco International and Others v. Ministry of Health (plain packaging laws), Tobacco Control Laws website, undated, accessed February 2020
  5. R. Uang, E. Crosbie & S.A. Glantz, Tobacco control law implementation in a middle-income country: Transnational tobacco control network overcoming tobacco industry opposition in Colombia, Global Public Health, 2018;13(8):1050-1064. doi: 10.1080/17441692.2017.1357188
  6. A. Ram, Tobacco giants launch UK packaging challenge, 8 December 2015, The Financial Times (by subscription), accessed April 2016
  7. PMI v Secretary State for Health Judgement, Royal Courts of Justice, Mr Justice Green, 19 May 2016, accessed March 2017
  8. A. Glahn, ENSP welcomes the European Court of Justice’s decision to reject challenges against the Tobacco Products Directive, 2 December 2016, European Network for Smoking and Tobacco Prevention website, accessed March 2017
  9. Campaign for Tobacco-Free Kids, JT International (Thailand) v. Minister of Public Health, Tobacco Control Laws website, undated, accessed February 2020
  10. Die Welt, Generation Maybe: Gericht kippt Marlboro-Werbeverbot, Die Welt online, 1 October 2015, accessed February 2020
  11. Campaign for Tobacco-Free Kids, National Confederation of Industry (Confederação Nacional da Indústria) v. ANVISA, Tobacco Control Laws website, undated, accessed February 2020
  12. A. Martin, Philip Morris leads plain packs battle in global trade arena, 22 August 2013, Bloomberg news, accessed March 2017
  13. abAttorney-General’s Department, Tobacco plain packaging- investor-state arbitration, Australian Government website, undated, accessed March 2017
  14. Philip Morris Ltd’s Submissions (Intervening), 26 March 2012, High Court of Australia website, accessed March 2017
  15. Allens Arthur Robinson, Hong Kong Agreement for the Promotion and Protection of Investments, 27 June 2011, accessed March 2017
  16. Campaign for Tobacco-Free Kids, Panama v. Executive Decree No. 611, Tobacco Control Laws website, undated, accessed February 2020
  17. World Health Organization, Norway: Prohibition on the visible display of tobacco products at the points of sale, WHO Framework Convention on Tobacco Control website, October 2012, accessed February 2020
  18. Request for arbitration 19 February 2010, italaw, accessed March 2017
  19. M. Castaldi, A. Esposito, Philip Morris loses tough-on-tobacco lawsuit in Uruguay, Reuters, 8 July 2016, accessed March 2017