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Supreme Court denies cert in cig labeling case, FDA plans new rules

| May 10, 2013

The U.S. Supreme Court denied a writ of certiorari filed by the tobacco companies challenging the advertising regulations promulgated pursuant to the Family Smoking Prevention and Tobacco Act.

While the Court’s cert denial allows a previous 6th Circuit decision to stand, the contested rules may never be enforced. The Solicitor General declined to file a writ of certiorari in the D.C. Circuit case and in a letter from U.S. Attorney General Eric H. Holder Jr. noted that the FDA plans to engage in “new rulemaking consistent with the Tobacco Control Act.”

Because the FDA has indicated that it plans to engage in new rulemaking, the tobacco companies have effectively avoided compliance with the stringent new rules.

The tobacco companies made two separate challenges to the rules. In the U.S. District Court for the District of Columbia, R.J. Reynolds, Lorillard, and Liggett Group, among others, sought an injunction against the enforcement of the new requirements. The U.S. District Court agreed that the “mandatory graphic images unconstitutionally compel speech” and that the tobacco companies would “suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA’s rules.” The FDA appealed, but the D.C. Circuit Court of Appeals affirmed.

At the same time, another group of tobacco companies filed a facial First Amendment challenge to the rules in their entirety – and got an entirely different result. A federal court judge in Kentucky upheld the rules, and the U.S. Court of Appeals for the Sixth Circuit affirmed, holding that “the Act’s warnings are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.”

The defendants then filed cert with the U.S. Supreme Court, which the justices denied in late April.


WHO snags Kosovo in its tobacco-control net

| May 9, 2013

The World Health organization announced it had snared Kosovo in its ever-growing tobacco-control net. The country has adopted a comprehensive tobacco control law in line with the WHO Framework Convention on Tobacco Control (WHO FCTC). The measures include:

  • 100 percent smoke-free indoor public places, workplaces, and public transportation, as well as specified outdoor areas, with some minor exceptions;
  • comprehensive bans on tobacco advertizing, promotion, and sponsorship, including a ban on retail tobacco product displays;
  • graphic health warnings on both sides of the pack;
  • ban on misleading packaging, including descriptors such as ‘light’ and ‘low’;
  • prohibition on sales to and by minors;
  • ban on sales in health, education, and athletic facilities;
  • granting power to the Ministry of Health authority to ban ingredients;
  • constituents and emissions limits with reporting requirements for manufacturers; and
  • cessation and education measures, include 45 minutes each month of mandatory programming on public radio and television.

Additionally, among the range of measures is the strongest protection against tobacco industry interference, based on Article 5.3 of the WHO FCTC.

Dalligate update: Kimberley denies asking for €60 million

| May 9, 2013

Defence lawyers of Sliema restaurateur Silvio Zammit yesterday pressed the police’s witness Gayle Kimberley on whether she was the one who came up with the €60 million figure at the heart of the Dalligate scandal.

Kimberley denied it categorically, but lawyer Edward Gatt insisted on the point, reminding the young lawyer that she was testifying under oath, according to a story in The Malta Times.

He then went back to a note that Kimberley had prepared for Zammit with a series of questions for the former European Commissioner John Dalli and asked why she had written down that Swedish Match made a turnover of €500 million, half of which was profit.

She said that the figure was suggested by Swedish Match, adding that the intention was to relay the message to Dalli that the company was actually a modest trader in the tobacco industry.

However, at this point, Dr Gatt and his colleague Kris Busietta pressed further saying that she had mentioned that figure because she was later going to ask for €50 million to lift the ban through her contacts with Dalli. She later suggested changing it to €60 million “so it would not be a round figure”, according to the lawyer.

Kimberley also rejected this but the lawyer again reminded her that she was testifying under oath, adding that she had plans to use the money to set up a lobbying office in Brussels and buy property in Sliema with her former lover Iosif Galea. Kimberley also denied this.

Shortly after this, Gatt stopped the cross-examination, saying he would continue at a later date because he needed time to review a lot of material, which the defence was analyzing, suggesting that they had material which was not available to the police or OLAF. Earlier, in fact, Gatt pointed out that Kimberley sent most of her emails through her phone. Nonetheless, when asked she said that neither OLAF nor the police had seized her phone, despite seizing her work and home computers.

Obama $0.94 smoke tax a ghost

| May 8, 2013

It’s never going to happen, apparently it wasn’t ever going to.

The cigarette sin tax to generate $78 billion to fund a preschool education program vanished almost as soon as Obama announced it four weeks ago, according to the Washington, D.C.-centered  blog

The president hasn’t mentioned it. The White House didn’t coordinate with outside anti-smoking groups, and none of them spent any time pushing for it. Tobacco companies never worried about putting together a lobbying strategy to  kill it. Obama’s political arm hasn’t sent an email calling on Congress to  consider it. Not even Obama’s surgeon general, who calls curbing smoking “the  single most important issue for all the surgeons general of the past five decades,” put out a press release applauding the idea. The whole idea disapeared like a ghost in the night.

That’s the attitude within the West Wing, too — rather than a marquee idea, aides say the $0.94-per-pack cigarette tax was in fact not a priority, and  there are no plans to build a public case for it. The tax was just the most politically palatable idea they could come up with to pay for their big new entitlement program — and in the context of a budget debate they never expected to get serious, that was enough.

“If other people have other ideas, we’re happy to look at them,” a White House official said. “If there were another way to pay for this, we’d be open to  it.”

White House officials described the cigarette tax as incidental to a larger  goal of funding the universal preschool program. And they wouldn’t discuss the proposal Obama called “the right thing to do” on the record at all.

Cuba joins fight over Aussie plain packaging rules

| May 6, 2013

Cuba has become the latest country to launch a legal attack on Australia’s landmark plain packaging rules for tobacco at the World Trade Organization (WTO).

The laws came into effect last December and mean cigarettes can only be sold in brown packages with graphic health warnings. The WTO says Cuba has requested consultations with Australia on the legislation, which covers all tobacco products, not just cigarettes. Under the 159-nation WTO’s rules, requesting consultations is the first step in an often complex trade dispute settlement process which can last for several years.

The laws have already been challenged at the WTO by Cuba’s fellow cigar-producing nations Honduras and the Dominican Republic. In addition, the Ukraine has filed a suit at the Geneva-based body, which oversees its member nations’ respect for the rules of global commerce, according to the Australian news company ABC.

All the plaintiff countries maintain that Australia’s packaging law breaches international trade rules and intellectual property rights.

In the event that the WTO’s disputes settlement body finds in their favor, it would have the power to authorize retaliatory trade measures against Australia if the country failed to fall into line. The dispute with Australia marks the first-ever challenge by Cuba against a fellow member since it joined the global body in April 1995, four months after the WTO was founded in its current form.

The plain packaging laws have won wide praise from health organizations which are trying to curb smoking. But the government has faced a string of court challenges from tobacco firms.

Besides trade and intellectual property concerns, tobacco companies say there is no proof that plain packaging reduces smoking and have warned that the law sets a precedent that could spread to products such as alcohol.

A nickel a butt adds up

| May 3, 2013

Redemption programs have dramatically reduced the amount of bottles and cans that go into the waste stream. Now a restaurant owner in Portland, Maine, U.S.A. wants to do the same with cigarette butts, according to a story reported on WLBZ.

Mike Roylos says he’s tired of dealing with butts outside the Spartan Grill. “They’re everywhere. I sweep. They come back. Customers track them in on their shoes,” laments Roylos.

When the city’s new smoking ordinance failed to stop the butt barrage, Roylos decided to take matters into his own hands. He came up with the “No Butts Now” campaign.

He supplies a basket of baggies for the public to collect cigarette butts in Monument Square. Using donations from grateful customers, Roylos will buy the butts back for five cents a piece.

Sure, it’s a little gross..but a nickel’s a nickel. Billy O’Rourke lives a few blocks away at the Oxford Street Shelter and he went right to work as soon as he heard about the campaign. .

“It’s an opportunity for us homeless guys to be a productive part of society and make a few extra dollars,” said O’Rourke.

They may be tiny, but those butts add up.