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Law Suits

Dutch cancer assoc. files lawsuit against tobacco producers

Dutch cancer fighting association KWF is suing four major tobacco companies for aggravated assault resulting in death and forgery. According to the association, the tobacco companies deliberately incorrectly inform smokers about the damage smoking actually causes, AD reports.

http://nltimes.nl/2017/03/24/dutch-cancer-assoc-files-lawsuit-tobacco-producers

KWF is filing charges against the largest tobacco manufacturers in the world – Imperial Tobacco Benelux, British American Tobacco, Philip Morris and Japan Tobacco International.

The association is charging the tobacco companies with forgery because KWF believes they intentionally manipulate the mandatory tests that measure the emission of harmful and addictive substances in cigarettes. In this the KWF points to what they call the “sjoemel cigarette” [tampered cigarette]. These cigarettes have little holes that tests show make smokers inhale less harmful substances. But according to the KWF, this is wrong – smokers partly cover the holes with their fingers, thereby inhaling more harmful substances in practice than the tests indicate.

KWF is suing the tobacco companies with two smoking victims Anne Marie van Veen and Lia Breed and the Youth Smoking Prevention foundation.

Addressing the tobacco industry vector

The tobacco industry’s escalating attacks on public health are replicated across the world, as is the harm caused by its products.

http://www.jpost.com/Opinion/Addressing-the-tobacco-industry-vector-482330

‘THE TOBACCO industry attempts to impede tobacco regulation have changed over the years, but have not abated – they have instead mutated, and on a global scale.’

I was privileged recently to deliver the keynote address to the annual meeting of the Israel Society for Smoking Cessation and Prevention. The title was “Advocacy efforts in countering tobacco industry tactics.”

In the address I quoted Dr. Margaret Chan, director- general of the World Health Organization, who in 2008 said, “I want to remind governments in every country of the range and force of counter-tactics used by the tobacco industry – an industry that has much money and no qualms about using it in the most devious ways imaginable.”

Just as the primary vector for malaria is the mosquito, the primary vector for the tobacco epidemic is the tobacco industry. The industry attempts to impede tobacco regulation have changed over the years, but have not abated – they have instead mutated, and on a global scale.

When the WHO’s first and only internationally binding treaty – the Framework Convention on Tobacco Control (WHO FCTC) – entered into force (Israel became a signatory in 2005), there was a dramatic increase in the number of countries implementing tobacco control policies. The industry determined to adapt to the new situation.

According to WHO, the tobacco industry has continued to use advertising, promotion and sponsorship to undermine tobacco control efforts. In addition, it has sought to interfere with tobacco control on a global scale using a variety of tactics. For example, it lobbies and funds politicians and political parties to hijack the political and legislative process. It exaggerates the economic importance of the industry, while remaining silent on the massive health and economic costs of tobacco use. It manipulates public opinion to gain the appearance of respectability, often under the guise of corporate social responsibility, while irresponsibly playing down or denying the real harms its products.

It fabricates support by developing and resourcing front groups who advocate on the industry’s behalf. It continues to attempt to discredit proven scientific and economic evidence – often erroneously claiming that evidence from one country isn’t applicable in another.

And, increasingly, it intimidates governments with litigation or the threat of litigation, or trade threats.

Tobacco companies have recently launched a spate of international legal challenges to oppose the implementation of legitimate and robust tobacco control measures. Bilateral investment treaties have been used as the premise for international commercial arbitration challenges against Uruguay and Australia. This typifies the tobacco industry’s response to countries exercising their regulatory autonomy in the tobacco space: one of untenable intimidation.

This intimidation of governments is important because only governments can ratify and implement UN treaties, such as the WHO FCTC, mandate public health legislation and implement taxation policies that increase the price and reduce the affordability of tobacco products – the single most effective way of reducing tobacco use.

Legal and trade challenges typically have a delaying effect upon the country concerned – the implementation of tobacco control measures is paused until the case is resolved, they are expensive for governments (typically costing millions of US dollars) and have a regulatory chill effect on other countries that might be contemplating similar measures. However, these challenges have been repeatedly dismissed by high courts, constitutional courts and courts of justice in jurisdictions including Australia, the UK, Kenya, France, the European Union, South Africa, Thailand and Uruguay.

In addition, more and more countries are dismissing tobacco industry opposition, and introducing plain packaging. Responding to the industry’s increased use of trade law, Bloomberg Philanthropies and the Gates Foundation announced an $ 4 million fund to support countries against such threats – but we need to adopt other strategies too.

For example, research is often directed toward establishing the rates of smoking prevalence, health and mortality, and the economic impact of tobacco. This research is invaluable, but more effort also should be directed at tracking tobacco industry behavior so we can more efficiently monitor and resist the tobacco industry vector. Many advocates do not even know whether the tobacco industry donates to front groups or politicians in their country; whether the International Tax and Investment Center (funded by the tobacco industry) has visited their Finance Ministry with the mantra of not raising tobacco taxes; or whether the industry has met with government (and under WHO FCTC Article 5.3, the tobacco industry should have no part in formulating tobacco control policy).

This is perhaps why recent allegations regarding tobacco industry bribes to the Israeli government came as such a shock.

The tobacco industry’s escalating attacks on public health are replicated across the world, as is the harm caused by its products. The global tobacco epidemic, which will kill six million people this year, cannot be addressed unless we are equipped to counter all the industry’s tactics and all governments – including Israel’s – stand firm in stopping the tobacco industry from influencing health policy development and implementation.

The current prevalence of smoking in Israel is about 20%. Israel’s next step could be, as many countries have already done, to announce a target of 5% prevalence rate by 2028, and work annually to achieve this target. This is an ambitious target, but challenging rather than impossible.

Court upholds NT$5 million fine on British tobacco company

http://focustaiwan.tw/news/asoc/201702020020.aspx

The Taipei High Administrative Court on Thursday upheld a NT$5 million (US$160,800) fine imposed by Taipei City government on a U.K.-based tobacco company.

Imperial Tobacco received the fine in 2015 for violating the Tobacco Hazards Prevention Act, after the company was found to have invited consumers to try out one of its cigarette products, as part of a marketing survey.

Imperial Tobacco filed a case with the Taipei High Administrative Court challenging the fine.

The court on Thursday ruled in favor of Taipei City government, after determining that Imperial Tobacco did indeed violate the provisions of the Tobacco Hazards Prevention Act.

The case can be appealed.

(By Liu Shih-yi and Y.F. Low)
ENDITEM/AW

Berlin woman faces €250,000 fine if she smokes on balcony past 8pm

A woman in Berlin has been banned from smoking on her balcony past 8pm – a violation the ban could lead to a fine of up to €250,000, or six months in prison.

https://www.thelocal.de/20170131/woman-faces-250000-fine-or-jail-if-she-smokes-on-balcony-past-8pm

Uta F., 52, has lived in her Berlin-Hellersdorf apartment for the past nine years, but now her occasional nightly routine of having an evening cigarette has been halted by a court, according to B.Z..

Her upstairs neighbour took her to court because he said the smoke coming from her balcony was blowing into his apartment and bothering him.

Uta F. told B.Z. that she enjoyed having her evening cigarette on her balcony in her fourth floor apartment.

“I don’t smoke a lot – in the evening with wine or sometimes when I cannot sleep at night,” she said.

But a local court ruled that Uta F. may no longer smoke on her balcony between 8pm and 6am. The two parties ultimately agreed to the conditions of the judgement, and Uta F. may therefore not appeal, a civil court spokeswoman told broadcaster rbb on Monday evening.

The judge further stated that if the woman were to violate the conditions, she would face a fine of up to €250,000, or six months in prison.

“This punishment is, however, very unlikely,” the court spokeswoman said.

The judgement had been based on a federal court ruling in 2015 that said smoking tenants are only guaranteed to be able to smoke on their balconies during limited time periods, because the smoke presents a significant disturbance to others.

In that case, two married couples had battled it out for years over one couple’s smoking habits. After the federal court ruling, the case was sent back to a lower court for further review, but was ultimately thrown out because the wife in the pair of smokers had died.

Last year, one of Germany’s ‘most famous smokers’ won a years-long legal battle against eviction before a Düsseldorf court. The court found that there was not sufficient evidence to show that he was disturbing the peace.

One liberal politician from the Free Democratic Party (FDP) condemned the latest ruling in Berlin. The Berlin state parliament representative and FDP spokesman for legal and constitutional protection said that he could only shake his head at the ruling.

“Forbidding an occasional smoker from having an evening cigarette on her own balcony constitutes a very big encroachment on her personal sphere,” said the FDP’s Holger Krestel.

Doctors help finance lawsuit against tobacco companies

Family doctors and medical specialists are lending financial support to the prosecution of four tobacco companies in what will be the first lawsuit of its kind in Europe, the Volkskrant writes.

http://www.dutchnews.nl/news/archives/2017/01/doctors-help-finance-lawsuit-against-tobacco-companies/

The Dutch Journal of Medicine NTvG , which has a membership of over 250 doctors, has decided to earmark ‘several hundreds of thousands of euros’ to support the case which is being brought by 1,300 (ex) smokers suffering from smoking-related illnesses.

According to Willem Mali, professor of radiology at UMC Utrecht, doctors should do more than simply supporting anti-smoking policies, writing reports and informing their patients about the consequences of smoking. ‘Doctors should become activists and really go for it,’ he told the paper.

The case is not about compensation but about prosecuting tobacco companies for ‘wilfully producing addictive cigarettes and prejudicing people’s health with premeditation’, the paper writes. Anti-smoking policy In the Netherlands 20,000 people die every year from smoking-related illnesses. A quarter of the population smokes.

In the United States, Canada and the United Kingdom the number is much lower, which Mali blames on the less than stringent anti-smoking policy in this country. NTvG editor Yolanda van der Graaf feels doctors have the knowledge and authority to persuade politicians to adopt more restrictive measures.

‘All we talk about now is new, more expensive medicines against lung cancer which help make care unaffordable and only prolong life by a couple of months. But if no one smoked we wouldn’t have to have this debate at all,’ Van der Graaf told the paper. The Dutch association of tobacco producers VNK commented that it ‘remains confident that the sale of a legal product will not be labelled as a crime.’

CASHING IN ON 240 DAILY DEATHS: LAWYERING FOR BIG TOBACCO IN THE PHILIPPINES

Download (PDF, 122KB)

NDP give update on tobacco industry lawsuit

http://www.calgarysun.com/2016/12/31/ndp-give-update-on-tobacco-industry-lawsuit

Justice Minister Kathleen Ganley says the NDP government is pleased with the progress being made on its legal action against the tobacco industry, though any resolution to the case is likely years away.

In 2012, the former Progressive Conservative government filed suit against 14 Canadian and international tobacco firms, seeking $10 billion to recover smoking-related health costs.

The process around the Tory government’s decision to hire the International Tobacco Recovery Lawyers consortium as counsel on the case remains mired in controversy and under review, but Ganley said that the NDP is satisfied with the work done by the firm so far.

“The quality of the work itself has been very good,” she said in a recent interview.

“So at this point it would cause further delay and be quite costly to change counsel at this point. And so I don’t think it would be in the best interest of taxpayers to do that.”

British Columbia’s conflict of interest commissioner, Paul Fraser, is currently reviewing the actions of former premier Alison Redford in relation to questions of potential conflict of interest around her awarding of the tobacco lawsuit legal contract as justice minister in 2010. A key part of the consortium is Calgary-based JSS Barristers, a firm where her ex-husband is a partner.

Redford was cleared by then-ethics commissioner Neil Wilkinson when the matter was investigated in 2013, but a report this spring from former Supreme Court justice Frank Iacobucci cited concerns that Wilkinson didn’t have all the relevant information. He recommended Alberta’s ethics commissioner take another look but a potential conflict led to the appointment of B.C.’s commissioner.

Ganley said she couldn’t comment on how that report may ultimately affect the government’s legal action against the tobacco companies but reiterated the NDP’s support for the case.

“We do believe in the merits and the cause of the case and I think it’s potentially worth an enormous amount of money to the taxpayers of Alberta, so it’s definitely worth pursuing,” she said.

Among the allegations in the government’s lawsuit, none of which have been proven in court, is that the companies deliberately designed tobacco products to be highly addictive, deceived Albertans by minimizing the products’ addictiveness and harm, and falsely denied the health risks of exposure to tobacco products.

Ganley said the defendants in the case filed statements of defence in the spring.

The next step will be the exchange of documents, then the questioning phase.

“These things typically take a while,” said Ganley.

“There’s going to be an enormous amount of documents.”

It has been slow going for legal action against the tobacco industry by Canadian provinces since British Columbia filed the first lawsuit in 1998, said Rob Cunningham, a senior policy analyst with the Canadian Cancer Society in Ottawa.

There are 12 provinces and territories that have enabling legislation allowing them to launch lawsuits and 10 have legal action already underway.

“There are no trial dates set for any of the cases. The cases that are the most advanced it seems are B.C. and New Brunswick, in terms of the pre-trial discovery process,” said Cunningham, noting that he has no indication the controversy around Alberta’s legal contract has affected its case.

“It’s incumbent for provincial governments to get these cases to trial.”

In 1999, the U.S. tobacco industry settled with 46 U.S. states by agreeing to pay almost $250 billion over 25 years. That deal featured restrictions on how tobacco products were marketed and sold.

Cunningham said a case to watch in Canada is a Quebec class action lawsuit that awarded C$15.5 billion in damages to plaintiffs from tobacco companies.

The case was appealed and heard at the Quebec Court of Appeal in November, with a decision expected in 2017.

Cunningham noted many of the same documents and issues that were in play in the class action trial will be at issue in the provincial cases.

“The Quebec case demonstrates overwhelmingly the tobacco industry can be beaten,” he said.

E-cig patent lawsuits heading to mediation

http://www.journalnow.com/business/business_news/local/e-cig-patent-lawsuits-heading-to-mediation/article_92efcac8-a014-5aa6-bacd-34eb1e22be55.html

One set of patent-infringement lawsuits addressing electronic cigarette technology is heading to mediation, according to legal filings Thursday.

Fontem Ventures BV and Fontem Holdings BV, owned by Imperial Brands Plc of England, is suing NuMark LLC, a subsidiary of Altria Group Inc. of Richmond. NuMark has filed a counter suit.

Fontem and NuMark have chosen Lex Brainerd of San Francisco as the mediator.

Fontem has filed at least three similar lawsuits against R.J. Reynolds Vapor Co., which makes top-selling e-cig Vuse.

In a separate filing Thursday, Reynolds Vapor Co. and the Fontem companies have asked to have until Jan. 12 to agree on a mediator.

Other leading U.S. e-cig companies sued by Fontem include: ITG Brands LLC, which makes blu eCigs; NJoy Inc., Ballantyne Brands LLC of Charlotte, maker of the Mistic brand; and Vapor Corp.

A federal judge in the Central Circuit of California agreed Aug. 8 to R.J. Reynolds Vapor Co.’s request to transfer the lawsuits to the Middle District of North Carolina so that the cases can be heard closer to the defendants. The transfer was completed Oct. 26.

Reynolds Vapor manufactures Vuse, which owns a 37.3 percent market share, at its Tobaccoville plant.

The Fontem companies are suing for what they call unlawful use of seven patented technologies. They focus their claims on patents for rechargeable e-cigs, cartridge refill packs, batteries and disposable e-cigs. Fontem said it obtained patents on its technology in February 2013.

Reynolds claims it has developed internal e-cig technology.

Fontem accuses Reynolds of patent infringement in its Vuse solo rechargeable digital vapor cigarettes and its Connect power units.

For example, Fontem repeats the legal accusation it made against Lorillard Inc. that Reynolds Vapor is in infringement with its cartridge technology, in particular when it says it does not allow another e-cig product to be used with Vuse products.

Fontem is suing for an undisclosed amount of damages because of “irreparable harm” done to the companies, including lost market share and lost profits on infringing sales.

Altogether, the Fontem companies have been a party in 89 complaints just in the Central Circuit court, including 15 that are open. The filings began March 5, 2014, with undisclosed settlements reached in some lawsuits.

Tobacco giants lose legal battle over plain-packaging rules as new rules means packets of 10 will disappear

Some of Britain’s biggest tobacco firms have lost a legal battle in the Court of Appeal against plans for new plain-packaging rules

The companies were appealing a high court decision which upheld new rules to force firms to use plain and standardised packing for all their products.

The new rules ban tobacco companies from prominently branding their cigarettes and require that picture health warnings take up 65 per cent of the front and back of every packet.

Packets of 10 cigarettes are no longer allowed, as they do not have enough room for health warnings.

Additionally, promotional messages on packets like “is less harmful than other brands” are also banned.

Firms and shops have a year to get rid of their old stock and implement changes – after that, they will face penalties for breaking the law.

In May, they suffered what anti-smoking campaigners described as a ”crushing defeat” at the High Court.

The day before new regulations come into force, a judge in London had declared that they were ”valid and lawful in all respects”.

Mr Justice Green rejected a judicial review action brought against Health Secretary Jeremy Hunt.

Leading companies then took their case on to the Court of Appeal.

But on Wednesday, three judges in London rejected their challenge against the High Court’s decision.

A number of companies, including British American Tobacco, Imperial Tobacco and Japan Tobacco International, challenged the legality of the ”standardised packaging”
regulations.

They argued that the Standardised Packaging of Tobacco Products Regulations 2015 would destroy valuable property rights and render products indistinguishable from each other.

Dismissing the appeal, Lord Justice Lewison, Lord Justice Beatson and Sir Stephen Richards ruled that the Health Secretary had “lawfully exercised his powers”.

UK court rejects tobacco companies’ appeal on plain packaging

http://in.reuters.com/article/us-tobacco-court-appeal-idINKBN13P1ED

A UK court has dismissed an appeal brought by some of Britain’s largest tobacco companies over the government’s new plain packaging rules.

In its decision handed down on Wednesday, the court dismissed all appeals brought by British American Tobacco, Japan Tobacco, Imperial Brands and several paper manufacturers.

The companies argued that the law, which went into effect in May, unlawfully deprives them of their intellectual property by banning the use of all marketing on packages, including logos, colors and special fonts.

“This is a victory for public health and another crushing defeat for the tobacco industry,” said Deborah Arnott, chief executive of health charity Action on Smoking and Health.

“This ruling should also encourage other countries to press ahead with standardized packaging, now that the industry’s arguments have yet again been shown to be without foundation.”

BAT, the world’s second-biggest tobacco company, called the decision “disappointing” and said it was considering its options carefully.

(Reporting by Martinne Geller in London; Editing by Louise Heavens, Greg Mahlich)