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Philip Morris Suing Over Cigarette Display Ban // “Blowing Smoke With a Nutty Legal Theory,” Says ASH

tobacco control cover warningsFirst published: March 9, 2010

Source: PR Inside

Philip Morris has announced that it will file a law suit in Oslo, Norway, aimed at stopping a ban on the open display of cigarettes mandated by Norwegian law; a ban similar to one in effect in Iceland, and introduced in Ireland, all Canadian provinces, and New South Wales, Australia. But they seem to be blowing smoke with a nutty legal theory, says the public interest law professor behind litigation against against tobacco who has been called “Mr. Antismoking.”

Philip Morris plans to argue that the Norwegian law violated the European Economic Area (EEA) Agreement; an agreement which allows Norway, Iceland, and Liechtenstein to participate in the Internal Market in Europe. The Agreement generally bans “quantitative restrictions on imports and all measures having equivalent effect” [Article 11]. However it explicitly exempts “measures justified on grounds of public morality .
. the protections of health . . .” [Article 13]

Philip Morris says it plans to argue that Norway’s law is an import restriction which is not justified by “protections of health” because it hasn’t yet produced any drop in cigarette consumption. But, says public interest law professor John Banzhaf, this argument makes no sense for several reasons.

FIRST, the Agreement exempts measures justified on the basis of health, but does not require that there be definitive proof that they work. Norway, like many other countries, mandates a wide variety of warnings, disclosures, etc. designed to protect public health, and it would be virtually impossible to validate their effectiveness.

Indeed, any such legal requirement would make it much too expensive to pass new health measures, argues Prof. Banzhaf. Furthermore, such a reading of the law would prevent any governmental experimentation with new health measures. That apparently is what Philip Morris argues, since their press release states that “we believe that the government should focus on proven techniques.”

SECONDLY, says Banzhaf, the display ban has been in effect in Norway only since January 1, 2010. It is highly unlikely that any measure seeking to reduce cigarette consumption by changing public perceptions would not only have a measurable impact in less than three months, but also that the effect could be scientifically validated within that very short period of time. Any such construction of the EEA agreement would place an impossible burden on virtually any health measure, says Banzhaf, much less any laws being justified under the Agreement based upon more general grounds like “public morality.”

In Iceland, which prohibited the public display of tobacco products in 2001, the percentage of smokers (aged 15 and above) was slashed from 25% in 2001 to only 20% in 2005 — a remarkable 20% decline. But Philip Morris says this doesn’t show that such bans are effective health measures because, in their words, “other tobacco preventive measures [were] introduced at the same time,” so there’s no way to single out the effect of the display bans.

As a THIRD point, Banzhaf suggests that this may be the silliest argument of all. It suggest that a government which might adopt 2 or 3 different health measures related to smoking at the same time — e.g., display bans, stronger warnings, graphic images, etc. — could never prove that any one was responsible for a decline in consumption, and so all such measures would be illegal under the EEA Agreement if Philip Morris has its way.

“Philip Morris almost certainly knows the law suit has virtually no chance of success. But filing it may serve as a warning to other countries considering similar display bans that Philip Morris will try to delay them in court, and make defending its law suits very expensive,” says Banzhaf.

The ultimate irony is that cigarette companies would not worry about display bans, much less file law suits directed at such measures, unless they believed that the bans would in fact cut sales, and ultimately their profits. Perhaps the best argument that the bans are justified by health concerns is the very fact that Philip Morris is so upset about them, says Prof. Banzhaf, Executive Director of Action on Smoking and Health (ASH).

Professor of Public Interest Law at GWU,
FAMRI Dr. William Cahan Distinguished Professor,
FELLOW, World Technology Network, and
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America’s First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418

Contact Information:
Action on Smoking and Health (ASH)
America’s First Antismoking Organization

2013 H Street, NW
Washington, DC 20006, USA

Contact Person:
Public Interest Law Professor John Banzhaf
Executive Director of ASH
Phone: (202) 659-4310 // (703) 527-8418
email: email


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