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Philip Morris ‘tobacco sticks’ court prosecution postponed

The heat has come on tobacco company Philip Morris for importing and selling “tobacco sticks”.

http://www.stuff.co.nz/business/industries/93268568/Philip-Morris-tobacco-sticks-court-prosecution-postponed

The company is facing two charges brought by the Ministry of Health over the sticks, called Heets.

The charges were to be called in the Wellington District Court on Friday but at the last minute they were adjourned by agreement until September 7.

That date was for a case review hearing, an indication that the company would plead not guilty although it appeared no pleas were entered.

The ministry said it considered Heets fell into a category of tobacco products for oral use, other than smoking, and so were banned under the Smoke-Free Environments Act.

Heets were described as tobacco sticks heated in an electronic device, rather than being burned like a normal cigarette.

Through a code-protected invitation-only website, the company was marketing its IQOS smokeless electronic devices, which heated the sticks to release the nicotine.

In March the company said it was confident the way it was doing business was legal.

General manager for Philip Morris New Zealand, Jason Erickson, said they complied with all sections of the Smoke-Free Environments Act.

“We are currently making our IQOS device and Heets available to registered adult smokers on a website. If requested, we will provide a demonstration on how to use the IQOS device, which as the Ministry of Health has acknowledged, is a consumer electronics product.”

The two charges the company faced had a maximum $10,000 penalty.

Big Tobacco is losing the fight to stop plain packaging of cigarettes

Dr Enrico Bonadio, a Senior Lecturer in the City Law School, says the tobacco industry’s bid to avoid plain packaging by relying on legal arguments around trade and intellectual property rights, is being systematically dismissed by courts around the world.

https://www.city.ac.uk/news/2017/may/big-tobacco-is-losing-the-fight-to-stop-plain-packaging-of-cigarettes

You may already have seen the tobacco packs currently sold in the UK: a dark, murky green colour with large graphic health-warning images and scary messages aimed at informing current and potential smokers about the devastating consequences of tobacco consumption. They have no colourful logos, with the brand name just displayed in small characters in a standard font.

These packs are now required by new regulations which entered into force in May 2016. There has been a one-year transitional period for the sell-through of old stock – and from May 20 2017 all tobacco products on sale in the UK must comply with the new rules.

The legislative move has been recommended to all countries by the World Health Organisation to reduce the attractiveness of smoking and eventually reduce consumption. Australia was the first country to introduce such strict packaging requirements in December 2012. France and, of course, the UK have since followed suit.

It follows significant research that shows these new standardised cigarette packs are much less appealing to consumers – and young people especially.
The industry’s legal defeats

No wonder tobacco companies have challenged the measure in the courts. They have argued that it is useless, too harsh – and is an infringement of their fundamental and intellectual property rights, especially trademarks. Yet, their claims are based on weak arguments and have been rejected by both the High Court of England and Wales and the Court of Appeal.

The tobacco industry has faced numerous courtroom defeats of late. Last year Uruguay won a landmark case against the Swiss giant Philip Morris International. The company had sued the Latin American state after it introduced two measures affecting tobacco packaging and trademarks. These were mandatory graphic health warnings covering 80% of cigarette packets (a measure very close to plain packaging) and the obligation for tobacco companies to adopt a single presentation for their brands, dropping for example the “gold” and “blue” descriptors, that could lead smokers to believe one variant was safer than another.

The fact that the courts sided with Uruguay would have been encouraging to other countries aiming to introduce controls on tobacco packaging. And even greater encouragement came recently from a World Trade Organisation ruling which deemed that the plain packaging requirements introduced by Australia as compliant with international trade and intellectual property rules – and are therefore a legitimate public health measure.

The decision has not been officially announced, but a confidential draft of the interim ruling was leaked to the media and the final decision is expected later this year. The Australian measure had been challenged at the WTO tribunal by Cuba, Dominican Republic, Indonesia and Honduras, countries whose economies strongly rely on the tobacco industry.

A domino effect

This is a blow to the industry. The short-term consequences of the WTO ruling – Imperial Tobacco’s shares fell more than 2% after the decision was leaked – reflects the longer-term danger that this ruling poses. It will likely convince other states to introduce plain packaging legislation without fear of violating international trade and intellectual property laws. It basically gives them a green light by removing the regulatory chilling effect that such legal action has produced on countries that wanted to follow Australia’s example.

After all, more and more countries seem interested in adopting standardised packaging. As well as France and the UK, Ireland and Norway will introduce packaging restrictions later in 2017, and Hungary in 2018. Many other states are debating similar measures, including New Zealand, Canada, Belgium, Slovenia, Belgium, Singapore and Thailand.

So, a legislative trend has started which aims to restrict the ability of tobacco manufacturers to make their products appealing to consumers by using eye-catching words, logos or ornamental features on the pack. And attempts by Big Tobacco to stop it by relying on legal arguments around trade and intellectual property rights are being systematically dismissed by courts around the world.

Ultimately, the industry needs to accept the fact that its ability to use fancy brands, especially on packaging, may be reduced by governments for public health reasons. Also that a company’s property rights are not absolute or untouchable. Not only does it not have enough legal basis – as has now been confirmed by several courts and tribunals – but it also disregards legitimate policies adopted by democratically elected governments.

Appeals Court Deals Blow To Tobacco Companies

More than a decade after the Florida Supreme Court opened the floodgates for lawsuits against tobacco companies, an Atlanta-based appeals court this week rejected arguments that could have helped shield cigarette makers in legal battles about smoking-related illnesses and deaths.

http://wlrn.org/post/appeals-court-deals-blow-tobacco-companies-0

The full 11th U.S. Circuit Court of Appeals ruled against R.J. Reynolds Tobacco Co. and Philip Morris USA, Inc., which contended that federal law trumps certain claims. The appeals court also rejected the companies’ arguments of due-process violations.

The case largely stems from a 2006 Florida Supreme Court ruling that established findings about a series of issues including the dangers of smoking and misrepresentation by cigarette makers. The ruling helped spawn thousands of lawsuits in state and federal courts, with plaintiffs able to use the findings against tobacco companies — lawsuits that have become known as “Engle progeny” cases.

The appeals-court decision Thursday came in an Engle progeny case tried in federal court in Jacksonville. The case was filed by the family of Faye Graham, who died after smoking for 41 years and developing chronic obstructive pulmonary disease and lung cancer, according to a brief in the case.

A jury ruled against R.J. Reynolds and Philip Morris on issues of strict liability and negligence. It also found Graham partially at fault, with a judge ultimately deciding that R.J. Reynolds should pay $550,000 in damages and Philip Morris should pay $275,000.

In the appeal, the tobacco companies argued, in part, that federal laws regulate cigarettes and, as a result, should prevent claims of strict liability and negligence based on the Engle findings — a legal concept known as federal preemption.

“The strict-liability and negligence claims in this case do not rest on any alleged defect specific to the cigarettes smoked by Mrs. Graham. Instead … they rest on the inherent riskiness of all cigarettes,” attorneys for the tobacco companies argued in a 2014 brief. “The claims here thus seek to enforce a legal duty, grounded in Florida tort law, to refrain from selling ordinary cigarettes. Because such a duty squarely conflicts with federal law, the claims here are preempted.”

But Thursday’s majority ruling, written by appeals-court Judge William Pryor, rejected such contentions, writing that “federal tobacco laws do not preempt state tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco companies.”

“Florida may employ its police power to regulate cigarette sales and to impose tort liability on cigarette manufacturers,” Pryor wrote in the 43-page opinion.

The majority also rejected to the tobacco companies’ arguments that due-process rights had been violated in using the Engle findings in the Graham case.

But appeals-court Judge Gerald Tjoflat wrote an encyclopedic 226-page dissent on the preemption and due-process issues. As an example, in addressing the preemption issue, he wrote that judges “cannot give effect to the Florida Supreme Court’s decisions in a manner that operates as a ban on the sale of cigarettes without elevating state law over federal law.”

“I merely conclude that, having surveyed both federal and state law, it is clear that Congress would have intended to preempt Graham’s strict-liability and negligence claims, rooted as they are in a broadly applicable state law set forth by the Florida Supreme Court that deems all cigarettes defective, unreasonably dangerous, and negligently produced,” Tjoflat wrote.

Charges laid against Philip Morris

The Ministry of Health has laid charges against tobacco company Philip Morris New Zealand relating to a new type of non-burning tobacco product.

http://www.stuff.co.nz/business/92735158/charges-laid-against-philip-morris

The product, Iqos, was launched at the end of last year. It was promoted through an invitation-only website and used a battery-powered holder to heats tobacco sticks known as heets to give off vapour rather than smoke.

Heets are heated rather than burned like a traditional cigarette, to give smokers a nicotine hit.

The ministry said it considered heets were tobacco products designed for oral use other than for smoking and were prohibited under the Smoke-Free Environments Act.

The charges have been laid at the Wellington District Court and the case has been set down for first hearing on June 2.

The Ministry said in February that the device was legal but the sticks were not.

Philip Morris said the Ministry’s move demonstrated the need for comprehensive reform so that smokers could switch from cigarettes to smoke-free alternatives.

General manager of Philip Morris New Zealand Jason Erickson said the company believed it was helping to advance the Government’s goal of making the country smokefree when it introduced Iqos to New Zealand.

​Erickson said the company was confident that the sale of Iqos and heets fully complied with the Smokefree Environments Act (1990) and other relevant legislation in New Zealand.

“The section of the law referenced by the Ministry in its action against Philip Morris was originally put in place in the 1990s to address American-style chewing tobacco,” Erickson said.

“We stand behind Iqos and heets,” Mr Erickson said. “But it’s clear that old 20th century laws are not sufficient to address new 21st century technologies that New Zealand smokers are embracing as they move away from combustible cigarettes.”

The New Zealand Government announced in March that it would legalise the sale and supply of nicotine e-cigarettes and e-liquid, and establish a pathway to enable emerging tobacco and nicotine-delivery products to be sold lawfully as consumer products.

Iqos is available in in more than 20 countries around the world, including the UK, Japan, Italy and Switzerland. Globally more than two million smokers have switched to IQOS and the company had plans to expand to key cities in 30 countries by the end of 2017, Erickson said.

Anti-smoking group Action on Smoking and Health (Ash) said Philip Morris had been working in opposition to the Government’s goal of the country becoming smokefree by 2025.

“Philip Morris have enough lawyers, have enough researchers and have enough intelligence to ensure they adhere to this country’s laws,” said spokesman Boyd Broughton.

“The fact they have knowingly broken the law is another example of their absolute contempt towards the laws of New Zealand. Is this product harmful? We don’t know. But this discussion is now about this product, it’s about the law. What we must remember is that Philip Morris remains responsible for selling and profiting off the sale of smoked tobacco, which is responsible for the preventable and premature deaths of over 5000 New Zealanders per year.”

Tobacco firms denied plain pack appeal

The UK supreme court has made a final decision, denying tobacco firms permission to appeal against plain packaging.

http://www.packagingnews.co.uk/news/markets/tobacco/tobacco-firms-denied-plain-pack-appeal-12-04-2017

The decision means that all cigarettes sold in the UK after 20 May must come in the standardised packaging that’s been increasingly appearing in shops during the trial period over the last year.

There will also no longer be packs of 10 cigarettes available in a move designed to deter young people from taking up smoking. For the same reason menthol cigarettes are being phased out but more gradually. They will disappear from shelves by May 2020.

Last November, British American Tobacco, Imperial Brands, Japan Tobacco International (JTI) and Philip Morris International went to the supreme court after the court of appeal claiming that the plain pack law would infringe their human and intellectual property rights but he appeal was rejected.

Any hopes the companies might have had that there was still a slim chance a challenge could be mounted will have been dashed by the final ruling.

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.”

What the new tobacco and cigarette packaging laws mean

Ten packs and smaller tobacco bags are out, while standard plain covers are in

http://www.theweek.co.uk/83551/what-the-new-tobacco-and-cigarette-packaging-laws-mean

New laws that standardise the appearance of tobacco packets and limit the range of products on offer come into force next month after a bid to halt the legislation was thrown out by the Supreme Court.

What was the Supreme Court ruling about?

Four tobacco giants took legal action in a last-ditch attempt to stop the introduction of mandatory plain packaging on cigarettes sold in the UK.

They argued the law would infringe their human and intellectual property rights by making their products indistinguishable. In addition, they also questioned evidence that plain packaging would deter smokers.

However, Judge Nicholas Green, who heard the original application for a judicial review of the 2015 legislation, ruled the regulations “were lawful when they were promulgated by parliament and they are lawful now in the light of the most up-to-date evidence”.

What happens on 21 May?

All cigarette packets will come in a single shade of “opaque couche” – a muddy green which The Sun describes as “the world’s ugliest colour”.

Brand names will be written in a standard font, size and location on the pack, while health warnings will cover at least 65 per cent of the box or packet. They can also no longer carry words such as “lite”, “natural” or “organic” and menthol cigarettes will be phased out completely by 2020.

Smokers will additionally not be able to buy smaller packs of cigarettes or rolling tobacco. Packets of ten are being axed, as are 10g (a third of an ounce) and 20g packs (0.7oz) of rolling tobacco.

Amanda Sanford, spokeswoman for Action on Smoking and Health (Ash), told the Liverpool Echo that banning smaller packers was intended to deter younger smokers who are more likely to buy them because they are cheaper.

Technically, the law came into force on 20 May 2016, but tobacco companies were given a 12-month period to standardise packaging and dispose of old stock. From 21 May this year, anyone breaking the new rules faces strict penalties.

Is this a good move?

Health Secretary Jeremy Hunt said standardised packaging “will cut smoking rates and reduce suffering, disease and avoidable deaths”, while government chief medical officer Dame Sally Davies says she was “thrilled” the tobacco industry was not allowed to appeal.

However, smokers rights group Forest said the new rules “treat adults like children and teenagers like idiots”.

Is the UK the first country to do this?

No. Australia led the way with a law that meant tobacco products on sale after 1 December 2012 had to carry plain packaging and French packaging legislation came into effect at the start of 2017. Similar laws in Ireland, Hungary and New Zealand have not yet been rolled out.

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.