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Subsidies for tobacco factory are illegal: foundation

http://www.taipeitimes.com/News/taiwan/archives/2015/08/15/2003625419

By Abraham Gerber / Staff reporter

Construction of a new tobacco factory in Tainan should be halted, civic groups said yesterday, accusing the central government of approving illegal subsidies.

Activists from the anti-smoking John Tung Foundation gathered outside the Executive Yuan to call for a comprehensive ban on the construction of new factories by international tobacco firms, demanding that the central government withdraw approval of the Japan Tobacco Inc factory under construction in Tainan.

“From the central government’s hasty approval to the local government’s ‘joyful’ cooperation, the Tainan factory is an extremely obvious example of inappropriate and illegal executive measures,” Soochow University law professor and foundation chief executive officer Yau Sea-wain (姚思遠) said.

“The Statute for Investment by Foreign Nationals (外國人投資條例) clearly states that international firms are forbidden from investing in industries harmful to citizens’ health. Despite this, the Executive Yuan has chosen to label tobacco factories as ‘restricted,’ meaning they can still be built after passing review,” he said.

Yau added that the benefits enjoyed by Japan Tobacco Inc as a “foreign investor” are in violation of the spirit of the WHO Framework Convention on Tobacco Control, which Taiwan has ratified.

The convention’s guidelines forbid governments from providing any benefits or other support to tobacco firms.

The foundation’s tobacco control division director Lin Ching-li (林清麗) said that as a foreign investor, Japan Tobacco would be entitled to exemptions from land, house and business taxes for two to five years.

By selling cigarettes produced domestically, the firm would also be able to avoid an estimated NT$2.8 billion (US$86.5 million) in customs duties annually, she said, estimating the firm would be able to cut prices for a pack of cigarettes by at least NT$5.

She said that the foundation organized yesterday’s protest due to rumors the government was in the process of approving another factory.

The opaque approval process for foreign investment prevented the group from confirming the rumors, she said, adding that the foundation only became aware of the Tainan factory plans after they were already approved.

Japan Tobacco commands a 30 percent share of the national cigarette market, second only to state-owned Taiwan Tobacco and Liquor Corp.

The Tainan factory is to be the second built in the nation by a foreign firm, following the construction of an Imperial Tobacco factory in Miaoli County in 2009.

Activists also called for the government to divest itself from Taiwan Tobacco and Liquor to ensure it objectively enforces tobacco regulations.

Kaohsiung takes heat for Japan Tobacco ties

http://www.chinapost.com.tw/print/443146.htm

By Stephanie Chao ,The China Post

TAIPEI, Taiwan — The Kaohsiung City Government has been accused of having illicit interactions with Japan Tobacco Inc. (JTI, 傑太日煙), whereby city officials funded trips to JTI facilities using tax dollars from tobacco surcharges, the John Tung Foundation said yesterday.
The John Tung Foundation demanded that Greater Kaohsiung Mayor Chen Chu (陳菊) investigate and rectify the situation. “Tobacco companies should not have a hand in influencing government policies,” the foundation stated. “We want an apology and explanation from Chen.”

Kaohsiung Information Bureau Director-General Ting Yun-kung (丁允恭) said, paraphrasing Chen’s words, that there are many misunderstandings that need to be smoothed out about the overseas government trips, which were arranged by the Kaohsiung Finance Bureau. All itineraries and budgets for future overseas government trips will be re-examined and adjusted accordingly, Ting proposed.

According to the foundation, annual trips made by Kaohsiung government officials since 2008 were carried out under the name of “investigating private and dodgy tobacco.” The officials were also accompanied by high-ranking JTI executives to each tobacco factory.

At least NT$2 million from bonuses have been injected annually to fund the trips to JTI factories world-wide, the foundation alleged.

Investigations will be carried out, said the Health Promotion Administration (HPA, 國健署), under the reasoning that such ties between the government and a tobacco company leave a “bad impression.”

Director-General of the HPA Chiou Shu-ti (邱淑媞) pointed out that any “government officials visiting a tobacco factory,” regardless of the funding origins, “are unsuitable and inadvisable.”

“We have met with the Finance Bureau, and asked them to understand whether the financial funds used for the Kaohsiung government’s trip to Japan’s tobacco factory originated from the health surcharges on tobacco.”

Cuts will be made to the city’s subsidies for tobacco prevention measures if the trip costs were indeed from the health surcharges, Chiou said.

Alleged Violation of FCTC

Lin Ching-li (林清麗), head of the John Tung Foundation tobacco control division, stated that the trips violated the Framework Convention on Tobacco Control (FCTC). Annual trips were made, with the exception in 2010 and 2014.

The findings were made and reported by a private citizen, the foundation stated. Prompted by the report, the foundation found upon further probing that wording usage in the Kaohsiung investigation reports was similar of that to the JTI’s word usage in its statements about health prices imposed on tobacco product laws.

“Increasing health surcharges on tobacco is the main reason that illegal tobacco products have become more and more popular,” the foundation stated as an example from the report, and pointed out relations between the government and the JTI were glaringly obvious.

Chien Chen-cheng (簡振澄), commissioner of the local finance department, stated that their overseas investigative trips were to understand methods such as “measures in searching for illegal tobacco products” and “regulating under-aged purchasing of tobacco and alcohol.” Reports from these trips are to provide reference for the central government and other local governments, Chien said.

The long read: smoking kills so why is Big Tobacco’s toxic business thriving in the Middle East?

http://www.thenational.ae/arts-lifestyle/the-review/the-long-read-smoking-kills-so-why-is-big-tobaccos-toxic-business-thriving-in-the-middle-east#full

Thirty-five years ago this month, worried executives at British Ame­rican Tobacco flew the company’s commercial partners in the Arab world to London for an urgent conference to discuss “Smoking and Health in the Middle East”.

The agenda awaiting the dele­gates from Abu Dhabi, Dubai, Kuwait, Oman, Saudi Arabia, Egypt and Bahrain who flew to the United Kingdom for the meeting on July 23, 1980, was not concerned with the health of their customers.

Instead, they had been summoned to HQ to discuss BAT’s concerns over the increasing efforts being made by governments in the Middle East, including the UAE, to reduce the harm caused by smo­king – and to return home armed with a strategy to undermine those efforts in the interests of the company’s vast profits, according to papers archived in the Legacy Tobacco Documents Library. More of which later.

global-tobacco-epidemic

Three-and-a-half decades on, Big Tobacco wears a different face. Today, it would have the world believe it is a good corporate neighbour, dedicated to reducing the harm caused by cigarettes and developing, what it likes to call, “new generation” or “reduced-risk products”, such as e-cigarettes.

Behind all the platitudes and talk of corporate responsibility and “harm reduction”, Big Tobacco remains the same old ruthless, steely-eyed killer it has always been, determined to push its deadly core product for as long as possible.

In 2015, 60 years after the link between smoking and cancer was first established beyond doubt, it would be reasonable to assume that the tobacco industry is in its death throes. After all, worldwide, the regulatory noose is tightening – health warnings appear on cigarette packs, advertising is banned in magazines and on television and taxes are raised to ever higher levels.

But, as I discovered during the course of a recent investigation for the British Medical Journal, far from being a slain dragon, Big Tobacco is thriving – and nowhere is this more true than in the Middle East.

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For the tobacco industry, the global market for its toxic product is like a balloon. If it is squeezed by public-health regulation in one place, it simply expands in another. And today, as Big Tobacco’s sales and profits are squeezed in other, increasingly health-conscious areas of the world, parts of the Middle East and Asian markets are becoming more important to its deadly business than ever.

Take Philip Morris International, which, with 25 per cent of the global market, is the world’s largest tobacco company. Last year, the American company shipped 287 billion cigarettes to the industry-designated EEMEA (Eastern Europe, the Middle East and Africa) region, which generated 34.2 per cent of the company’s total income of US$29.8 billion (Dh109.5bn). Only Asia, where the company shifted 288 billion cigarettes, performed better.

In its annual report, the company notes it continues to benefit from “innovations” to its “iconic” Marlboro brand – such as its Smart Seal technology, “which maintains product freshness with a novel, state-of-the- art re-seal mechanism [and] has been a key driver of Marlboro’s reinvigorated performance in the Arab Gulf”.

Somehow, over the years, the company has managed to shrug off the negative PR caused by the deaths, from smoking, of no fewer than four of the actors who played Marlboro Man in the adverts that ran from the 1950s onwards.

In its most recent annual report, Japan Tobacco International, the world’s third-largest cigarette company, doesn’t break down its total of 266 billion cigarettes into regional sales, but does offer this helpful analysis of regional opportunities.

In mature markets, it notes, the overall number of cigarettes sold is in decline, “reflecting various factors such as limited economic growth, tax increases, tightening regulations, and demographic changes.” But in emerging markets, “total consumption tends to increase, driven by population growth and economic development, particularly in Asia, the Middle East and Africa”.

So, 35 years after that London meeting, how is BAT, the world’s second-largest tobacco company, faring in the region?

Last year, BAT reported a global profit of £6.1bn (Dh34.7bn). Its annual report for last year showed that while the share of that profit in Western Europe was down by 0.98 per cent, in the industry-designated EEMEA region it was up by 9.1 per cent.

In the report, a BAT director singled out and celebrated the company’s “strong performance” in the Middle East. The region as a whole provided BAT with a revenue of £4.355bn – 28 per cent of its total income and more than that generated by any other region – and a healthy profit of £1.62bn.

Healthy, that is, for the company’s shareholders.

As the World Health Organisation (WHO) points out, Big Tobacco has the dubious distinction of being the only industry on the planet whose products kill 50 per cent of all people who use them as intended. Around the world, says WHO, that adds up to a death toll of almost six million people a year.

Seen in that light, the six trillion cigarettes consumed around the world each year start to look a little like bullets. But when it comes to destroying lives, the arms industry has nothing on Big Tobacco.

All the wars of the 20th century, including both global conflicts, claimed the lives of 72 million people. Tobacco’s score over the same period? One hundred million.

Imagine the outcry and panic if a pandemic such as Middle East Respiratory Syndrome were claiming the lives of millions of people each year, rather than the 1,300 thought to have been killed by the disease to date. Even the death toll of the 2014-15 Ebola outbreak (11,200 cases by the beginning of July, according to WHO) pales against tobacco’s harvest of lives.

The problem, of course, is that tobacco is a vastly lucrative business for the companies, their shareholders and the governments that tax them – heavily, but never quite punitively enough to kill the golden goose.

Just four companies account for most of the cigarettes smoked in the world outside China and, according to their most recent annual reports, their combined annual profit amounts to more than £21bn. They are Philip Morris (£9.2bn), British American Tobacco (£6.1bn), Japan Tobacco International (£3bn) and Imperial Tobacco (£2.9bn).

While some individual investors and institutions draw the ethical line at profiting from such a business, there remains no shortage of people prepared to take advantage of one of the best investments around. Between March 2008 and December 2014, for example, the combined shareholder return from the Standard & Poor 500 was 81.5 per cent. Over the same period, the tobacco sector yielded more than 117 per cent.

The tobacco industry points to its new interest in e-cigarettes as evidence that it is concerned about public health. In fact, as Simon Capewell, professor of public health and policy at University of Liverpool’s Institute of Psychology, Health and Society, says: “If tobacco companies were genuinely concerned about the harm they caused, they would cease production [and] go into e-cigarette production 100 per cent.”

Many countries have been taken by surprise by the rise in popularity of e-cigarettes and have no legislation in place to deal with the phenomenon. Others, such as the UAE, have banned their sale.

Scientists, meanwhile, have also been caught flat-footed and are divided on key questions: do e-cigarettes actually help people to give up smoking, or are they used interchangeably with tobacco and hence contribute very little to harm reduction? Worse, there is, as yet, no agreement on whether e-cigarettes are acting as a gateway to smoking for the young.

Professor Capewell and colleagues would prefer governments to err on the side of caution, as the UAE has done. He believes e-cigarettes are being cynically exploited by the industry, both to glamorise and renormalise smoking and to win it a place at the table in discussions with health ministries: “They are now saying ‘this is all about harm minimisation, we’re part of the solution, we’re no longer the problem’.”

Meanwhile, while posing as a champion of harm reduction, Big Tobacco has also been sidling into another boom market – shisha. Increasingly popular among the young in the Arab world, shisha has benefited from the mistaken belief that it is somehow safer than cigarette smoking.

And, in the same way that it has gobbled up almost all indepen­dent producers of e-cigarettes, Big Tobacco is now muscling in on shisha – in March 2013, Japan Tobacco bought Egyptian company Al Nakhla, the leading producer and exporter of shisha tobacco in the Middle East.

Evidence from a cache of 14 million internal industry documents from 1950 to 2009, released into the public domain over the past decade as a result of litigation between 46 states of the United States and the major tobacco companies, suggests cynicism is the industry’s default setting.

The Legacy Tobacco Documents Library, maintained online by the University of California in San Francisco, amounts to an indictment of an industry that clearly knew for decades that its products were killing people, and yet deliberately hid the truth.

As one analysis of the documents by WHO concluded, “in the face of mounting damning evidence against their product, the companies responded by creating doubt and controversy surrounding the health risks” and “lulled the smoking public into a false sense of security”.

The papers reveal that by the early 1960s, industry scientists were working on producing “safer” cigarettes – the very work to which it is returning with such self-congratulatory fanfare now – but that its lawyers advised that to do so was to admit that its other products were unsafe. As one internal memo from the time put it: “Ignorance is bliss”.

A confidential internal Philip Morris memo from March 15, 1961, concedes in passing that, in addition to being “stimulating, pleasurable and flavorful”, the “biologically active” materials in tobacco are “cancer causing, cancer promoting [and] poisonous”.

Compare this internal admission with the delusional propaganda handed out by BAT to its Middle East reps almost 20 years later at its London summit in 1980, recorded in a paper among the millions now held at the Legacy Tobacco Documents Library.

Diseases such as cancer could be described only as “allegedly associated with smoking”, Mike Scott, BAT’s public affairs manager, told the delegates. “A considerable controversy still exists,” he said, and there are “two sides to the argument. The anti-smokers would have everyone believe that ‘causation’ is proven beyond all reasonable doubt and that there is nothing further to debate.”

The document reveals that the delegates were then provided with “the necessary general information on smoking and health” and dispatched back to their countries equipped with a strategy to undermine attempts to reduce tobacco harm.

Such a deliberate attempt to subvert the will of a government working to protect the health of its citizens might seem shocking, but one should hardly be surprised. As a 1978 document from the Legacy archive reveals, BAT had already proposed a public-relations strategy for the entire industry.

The document outlining the strategy contains the callous observation that, “with a general lengthening of the expectation of life we really need something for people to die of.” Absence “the effects of war, poverty and starvation, cancer, as the disease of the rich, developed countries, may have some predestined part to play”.

This argument was “obviously not one that the tobacco industry could use publicly. But its weight, as a psychological factor in perpetuating people’s taste for smoking as an enjoyable, if risky, habit, should not be under-estimated.”

More evidence of the industry’s manipulation of its customers comes from a BAT creative- advertising brief from January 1995, highlighting the sales opportunities to be had from exploiting Ramadan.

The holy month of Ramadan, it said, was “a time when Muslims try to live a healthier life and … many people may try to give up smoking”. What better time, then, to exploit the fact that “smokers will not have had a cigarette for around 14 hours” and persuade them to switch to supposedly “milder” brands instead?

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In March, Abu Dhabi hosted the 16th World Conference on Tobacco or Health, which saw the launch of the latest edition of The Tobacco Atlas, published by the American Cancer Society and the World Lung Foundation.

Smoking rates were dropping in many high-income countries, noted Peter Baldini, chief executive of the World Lung Foundation, in the foreword to the report. But in response the industry was simply focusing on “addicting hundreds of millions in emerging markets”.

One of the co-authors, Dr Judith Mackay, a Hong Kong-based senior adviser to the World Lung Foundation, has spent most of her professional life working to reduce the harm caused by tobacco and, despite all the apparent advances in regulation and education, she offered a gloomy prognosis.

“There’s no tobacco farmer or manufacturer who need worry about their job in my lifetime,” she says. “Here’s an industry that is going to be expanding for the next several decades.”

It is true that in some parts of the world, the proportion of people who smoke is falling. But the population of the world is going to rise by a billion in the next decade, reaching as much as 9.5 billion by 2050, “so even if you bring the prevalence [of smoking] down … the reality is that population expansion will exceed any decrease in prevalence”.

The result, she says, is that – e-cigarettes and all of the other white noise of so-called “harm reduction” notwithstanding – “by 2030 or 2040 we will have a lot more smokers in the world than we do today and the industry is certainly going to be selling a lot more cigarettes than it does today”.

It was a naive question, but I asked BAT why, if it really was serious about reducing the harm caused by its core products, it didn’t just stop making them.

“We have made meaningful steps in our journey to tobacco harm reduction,” says Will Hill, BAT’s public-relations manager.

But, he admits the “lion’s share” of BAT’s revenue and profits for the foreseeable future is “going to come from the traditional cigarette side of our business … Simply to turn off that … would not be acting in the best interests of our employees, our partners and suppliers or, of course, our shareholders”.

No mention, in that sentence, of the best interests of Big Tobacco’s two largest groups of stakeholders – its customers and the six million killed each year by cigarettes.

Jonathan Gornall is a freelance journalist based in London.

Big Tobacco Heads to Court Over Cigarette Plain Packaging Laws

http://www.ipwatchdog.com/2015/07/19/big-tobacco-heads-to-court-over-cigarette-plain-packaging-laws/id=59664/

By Brian Focarino

In late May, global tobacco giants Philip Morris International (PMI), British American Tobacco (BAT), and Japan Tobacco International (JTI) sued the British government over new legislation that will introduce plain tobacco packaging to the UK in May 2016. The British legislation, aimed at curbing demand for cigarettes, requires that all cigarettes be sold in uniform packs with all branding, including colors, logos and other trademarks, removed. Companies are only permitted to print the brand’s name, in a uniform font, size, and location, on the pack, alongside health warnings and deterrent images. Other tobacco companies, such as Imperial Tobacco, have indicated that they will “be left with no choice” but to challenge the regulations as well.

The tobacco companies allege that the government’s plain packaging rules deprive them of property in the form of trademarks, and seek compensation that could extend into the billions of pounds. Specifically, the tobacco companies’ assert: (1) the regulations unlawfully deprive tobacco companies of their trademarks, in contravention of English and EU law prohibiting depriving private entities of property without fair compensation; (2) the regulations violate the EU law that says community trademarks can be used by identical means throughout the EU, which would be impossible if the UK government bans their use in the UK; and (3) the regulations obstruct the free movement of goods through means that are neither necessary nor proportionate to achieving the UK government’s public health objectives.

In 2011, Australia became the first country to pass plain packaging legislation, which took effect in December 2012. At the time, BAT, which had 46% of the tobacco market share in Australia, challenged the decision, noting that “[t]he government can’t take away valuable property from a legal company without compensation.” BAT claimed that the company’s brands were worth billions of dollars, and that the legislation was unconstitutional on the grounds that BAT and other tobacco manufacturers were legal companies selling legal products to adults who assumed the risk of using the products.

Tobacco companies filed suit, but in October 2012 the High Court of Australia ruled against the plaintiffs and in favor of the Australian government, upholding the law even though the High Court recognized the impositions of plain packaging “may be said to constitute a taking in the sense that the plaintiffs’ enjoyment of their intellectual property rights and related rights are restricted.”
Since that time, the governments of Ukraine, Indonesia, and the Dominican Republic, joined by dozens of other countries, have challenged the measure before international tribunals, alleging that Australia’s Tobacco Plain Packaging Act of 2011 violates international property treaties and amounts to a technical barrier to trade in contravention of countries’ rights under World Trade Organization (WTO) agreements.

In March of this year, Ireland became the first European country to pass plain packaging legislation. At the time, Ireland’s Minister for Children and Youth Affairs hailed the legislation, noting that it would “strip away the illusions created by shiny, colourful cigarette packets and replace them with shocking images showing the real consequences of smoking.” JTI, on the other hand, called the plain packaging legislation “disproportionate, unjustified, and unlawful.”

The International Trademark Organization (INTA) passed a resolution in May calling for the repeal and rejection of plain packaging measures, saying such measures violate various international treaties and national laws, including the provisions of the Paris Convention, the Technical Barriers to Trade Agreement, and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). Specifically, Article 20 of TRIPS requires that “[t]he use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.” Prohibiting companies from using trademarks to distinguish products vis-à-vis the end consumer for “products which are lawful to be placed on the market,” INTA argues, amounts to an unlawful confiscation of the private property rights of companies. Others, however, including Professors Andrew Mitchell and Tania Voon of the University of Melbourne Law School, are not so sure. The Australian measure is likely to pass muster under TRIPS Article 20 and other provisions, they claim, because “even if the scheme encumbers trademarks with special requirements, that encumbrance is justifiable and indeed justified by relevant evidence including the public health objectives of the Australian government.”

INTA’s resolution warned that tobacco plain packaging could result in a domino effect, encouraging countries to impose similar restrictions “on an expanding list of categories of products.” These might include alcohol or pharmaceuticals.

Notwithstanding these concerns, other European countries, such as France and Norway, are moving ahead with consultations aimed at potentially adopting plain packaging in their respective countries. In March of this year, the Swedish Minister of Public Health also chimed in, saying that Sweden has “an urgent need to investigate the possibility of requiring plain tobacco products packaging.”

Compounding the issue are recent studies, announced this spring, that purport to show that Australia’s plain packaging laws have been successful, resulting in a statistically significant increase in the number of Australians thinking about and making attempts to quit smoking. Study authors have indicated that in light of these findings, they expect more countries to follow Australia’s lead.

Tobacco companies, by contrast, have warned that a complete ban on trademark use would “distort the market,” resulting in competition only on the basis of collapsing prices. Australian study authors rejected this, however, finding “no evidence of either of [those] effects.” Although some of the studies focused more on the presence of more prominent health warnings and images, others found that “removing brand imagery from packs increased the focus on health warnings.”

Tobacco packaging litigation in the United States in recent years has concerned graphic warning labels and the First Amendment, with American courts siding with tobacco companies. Any attempts at plain packaging proposals like the recent UK legislation would almost certainly be constitutionally indefensible in the United States.

While government initiatives aimed at limiting the appeal and prevalence of smoking are laudable, recent proceedings initiated before the WTO and private lawsuits between big tobacco and government raise questions about the legality of plain packaging and trademarks’ place as a species of private property.

Proceedings in the coming months will instruct as to whether international governments may want to begin investigating other ways to achieve policy goals in ways that don’t burden, and potentially violate, international treaties and national laws concerning trademarks. As Marc Firestone, PMI’s senior vice president and general counsel put it, “[c]ountries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property.”

Significant mandates: JTI turns to Freshfields in latest tobacco challenge to plain cigarette packaging

http://www.legalbusiness.co.uk/index.php/lb-blog-view/4180-significant-mandates-japan-tobacco-international-turns-to-freshfields-in-latest-tobacco-challenge-to-uk-s-plan-for-plain-cigarette-packaging

The latest firm to win work challenging the UK government’s decision to introduce plain cigarette packaging, Freshfields Bruckhaus Deringer’s Tom Snelling has launched High Court litigation on behalf of Japan Tobacco International, the maker of Camel, Benson & Hedges and Silk Cut.

The UK’s second biggest cigarette seller after its £9.4bn purchase in 2007 of Gallagher, whose brands included Mayfair, Silk Cut and Hamlet Cigars, Japan Tobacco International (JTI) follows its rivals British American Tobacco and Philip Morris International in filing a suit against the plans to ban branded packaging from May 2017. Snelling is being supported by IP partner Giles Pratt and has instructed David Anderson QC of Brick Court chambers to bring the case before the courts.

The company has so far failed in a similar suit against the Australian government, which became the first nation to implement plain packaging legislation in December 2012 with the Tobacco Plain Packaging Act. The legal battle has not stopped there, however, with Ukraine, Honduras and Dominican Republic bringing a dispute against Australia over its plain packaging rules at the World Trade Organization (WTO).

JTI argues that plain packaging is unlawful and infringes important principles of UK and EU law, and other fundamental rights, and goes against obligations under WTO rules.

Earlier this year, British American Tobacco (BAT) instructed Herbert Smith Freehills (HSF) for its challenge against the UK government’s plans, as well as Hogan Lovells to advise on intellectual property issues, while barristers brought in include 39 Essex Chambers’ Nigel Pleming QC and One Essex Court’s Geoffrey Hobbs QC.

MPs voted to back plain packaging legislation by 367 to 113 in March following an independent review by Sir Cyril Chantler that found the measure was ‘highly likely…to reduce the rate of children taking up smoking and implausible that it would increase the consumption of tobacco.’

JTI files case against UK on plain packaging for cigarettes

http://www.packaging-business-review.com/news/jti-files-case-against-uk-on-plain-packaging-for-cigarettes-4586360

The UK’s second biggest cigarette brand Japan Tobacco International (JTI) has joined the fray, filing a lawsuit against the government’s mandate for plain packaging.

The UK’s second biggest cigarette company Japan Tobacco International (JTI) has joined the fray, filing a lawsuit against the government’s mandate for plain packaging.

JTI’s suit follows similar actions taken by Philip Morris International (PMI) and British American Tobacco.

The companies have trained their guns on the government’s move to introduce standardized, unbranded packaging for cigarettes effective May 2017.

The trio has maintained that plain packaging will be in breach of legal provisions in the UK and European Union.

Tobacco companies file lawsuits against UK government over plain packaging laws

http://www.independent.co.uk/life-style/health-and-families/health-news/tobacco-companies-file-lawsuits-against-uk-government-over-plain-packaging-laws-10270874.html

The measures have been opposed by Big Tobacco from day one

Two of the world’s biggest tobacco companies have filed lawsuits against the UK government over its plan to introduce plain packaging for tobacco products.

Philip Morris International (PMI) and British American Tobacco (BAT) both argue the measures deprive them of property in the form of trademarks, and are seeking compensation that could extend to billions of pounds if they succeed.

In legal objections filed to the High Court, they also claim the measures violate European intellectual property laws. The Department of Health said it would not let policy “be held to ransom by the tobacco industry”.

The legal challenges had been anticipated, following the introduction of standardised packaging legislation in March this year.

The measures, which are planned for a 2016 introduction, and full roll-out by 2017, have been opposed by Big Tobacco from day one. Similar legislation in Australia, where the introduction of plain packs has coincided with falls in smoking, has already been subject to an unsuccessful lawsuit.

Lawyers for the Government are understood to be confident that all legal aspects of the new measures have been taken into account. But even if unsuccessful, tobacco companies may be hoping legal action will delay implementation or discourage other countries from taking similar action.

“We respect the government’s authority to regulate in the public interest, but wiping out trademarks simply goes too far,” said Marc Firestone, PMI’s senior vice president and general counsel. “Countries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property.”

A spokesperson for BAT maintained that the company had “no other choice” to launch legal action adding: “Any business that has property taken away from it by the state would inevitably want to challenge and seek compensation.”

Other tobacco giants, including Japanese Tobacco International and Imperial Tobacco, are also understood to be considering lawsuits.

A Department of Health spokesperson said: “We will not allow public health policy to be held to ransom by the tobacco industry.

“Smoking is the biggest preventable cause of death in England – killing 80,000 people every year. We would not have gone ahead with standardised packaging unless we had considered it to be defensible in the courts.”

Health charity Action on Smoking and Health (ASH), said it had commissioned legal advice that indicates the legislation is compatible with European law. The group’s chief executive Deborah Arnott said: “The tobacco industry knows it has little or no chance of winning but by threatening legal action it is trying to stop the infection spreading to other countries.

“Standardised plain packaging threatens the profitability of the industry and they are desperate to prevent other countries from following the example set by Australia, the UK and Ireland.”

MPs voted to back plain packaging by 367 to 113 in March. The vote came one year after the publication of an independent review of evidence by Sir Cyril Chantler, which concluded it was “highly likely that standardised packaging would serve to reduce the rate of children taking up smoking and implausible that it would increase the consumption of tobacco.”

In Australia, where the measure was introduced in 2012, smoking rates fell by more than 12 per cent between December 2013 and 2014.

The power of the tobacco industry to market their products has been slowly eroded, to varying extents, by legislation in countries around the world. In the UK, advertising was phased out between 2003 and 2005, and in 2012, tobacco products were banned from display in supermarkets and large shops – a measure that was extended to small shops last month.

State wants tobacco packaging challenge referred to EU court

http://www.irishtimes.com/news/crime-and-law/courts/high-court/state-wants-tobacco-packaging-challenge-referred-to-eu-court-1.2190636

JTI Ireland Ltd take case against Government’s plan to bring in plain packaging

Samples of standardised packaging of tobacco products, which has been approved by the Government. Photographer: Dara Mac Dónaill/The Irish Times

Samples of standardised packaging of tobacco products, which has been approved by the Government. Photographer: Dara Mac Dónaill/The Irish Times

The State wants to have a legal challenge brought against its plan to introduce plain packaging on tobacco products referred to the Court of Justice of the European Union, the Commercial Court has heard.

JTI Ireland Ltd has challenged the Government’s plan to bring in plain packaging claiming it cannot unilaterally introduce it on its products as a member of the EU.

In proceedings before the Commercial Court JTI is seeking orders preventing the Minister for Health, Ireland and the Attorney General from commencing the provisions of the recently passed Public Health (Standardised Packaging of Tobacco) Act 2015.

JTI Ireland Ltd claims the State’s action is contrary to EU harmonisation objectives and an obstacle to trade between member states.

JTI also claims the standardised packaging law imposes stricter rules than those necessary to transpose a 2014 EU directive (2014/40/EU). The stated objective of the directive is to harmonise labelling and packaging.

The matter came before Mr Justice Brian McGovern today, who following an application by Paul Sreenan SC for JTI, agreed to admit the case to the fast-track Commercial Court division. The application was on consent.

Michael Cush SC for the State parties told the court it is his client’s intention to apply to the Commercial Court to have certain legal questions arising out of JTI’s action referred to the Luxembourg based Court of Justice of the EU.

Counsel made reference to the High Court of England and Wales decision to refer questions concerning the validity of the 2014 EU directive in a case brought by the Philip Morris tobacco company and British American against the UK Health Secretary to the European Courts.

Counsel said similar issues have been raised in that case to those being advanced in JTI’s proceedings, and it was hoped the Irish case could travel together with the British case.

In its action JTI says the Minister and the State do not have the power or competence to derogate from the provisions of the directive.

This is because harmonisation of labelling and packaging is a stated objective of the EU directive, a member state cannot adopt national measures which further restrict the free movement of goods on grounds of a high level of protection for human health.

JTI also claims the new rules, due to be introduced in May, will distort and impair the dynamics of competition in the tobacco market.

In its action JTI claims the law means all tobacco products must come in standard plain paper packaging. JTI supplies 3,100 retailers with brands including Benson and Hedges, Silk Cut, Camel, Hamlet cigars, roll-your-own like Amber Leaf and Old Holborn, and pipe tobacco.

It is part of an international tobacco group with operations in 70 countries and employs 90 people directly in Ireland. It says it paid €666.8million in tax here in 2013.

Mr Justice McGovern agreed to adjourn the matter for two weeks, to allow the State bring an application to have the case referred to the European Courts.

Court challenge to plain tobacco packaging looms next week

http://www.independent.ie/irish-news/courts/court-challenge-to-plain-tobacco-packaging-looms-next-week-31128681.html

The Irish Courts will next week begin hearing the first case of its kind taken against the State over plans to introduce plain tobacco products.

Japan Tobacco International (JTI) has instigated legal action in a bid to detail the proposals, which are being spearheaded by Children’s Minister James Reilly.

The proceedings are scheduled to begin in the Commercial Court on Monday.

Details of arguments being put forward by the State and JTI will be heard during the case, which will be open to the public.

Politically, the Government is taking a gamble in taking on the powerful tobacco giants.

Dr Reilly is adamant the measures will reduce cancer-related deaths.

First tobacco giant challenges plain package laws

http://www.independent.ie/irish-news/health/first-tobacco-giant-challenges-plain-package-laws-31106383.html

Japan Tobacco International has launched a legal bid to halt the Government’s controversial plain packaging measures

ONE of the world’s largest tobacco firms has launched a legal bid to halt the Government’s controversial plain packaging measures, the Irish Independent can reveal.

Japan Tobacco International (JTI) formally lodged papers in the High Court yesterday which names the State, the Attorney General and Health Minister Leo Varadkar as defendants.

While tobacco firms have previously threatened legal action over the plain packaging measures, JTI is understood to be the first firm to launch a legal bid.

The cigarette giant, which owns the Benson & Hedges and Silk Cut brands, is seeking to halt the plain packaging plans on the basis that the European Court of Justice is hearing a case that bears directly on the right of an EU member state to introduce such measures.

The company will argue Ireland is operating outside of the parameters of EU law.