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Tobacco firms faced with compensation claim by national health insurance body

| December 20, 2013

South Korea’s National Health Insurance Service (NHIS) said on Wednesday that it will file a suit against cigarette manufacturers ‘as early as next year’, according to a story in The Korea Times.

“The NHIS will file a suit against tobacco companies to recover medical costs which it has incurred due to smoking-related diseases,” NHIS president Kim Jong-dae wrote in a blog post.

And an unnamed official at the NHIS confirmed the plan. “This is the official stance of the NHIS,” she said. “We plan to file a suit against tobacco makers as early as in the first half of next year.”

The defendants are expected to include both local and foreign tobacco manufacturers. “The NHIS will sue these companies before a decision is reached in a compensation suit filed by an individual which is pending before the Supreme Court,” Kim said, before adding that the Supreme Court had acknowledged that smoking could cause lung cancer.

If the NHIS sought compensation for the money spent on the treatment of tobacco-related diseases over a number of years, he added, the amount sought in a litigation settlement could climb into the “trillion-won level.”

EU to back ‘tobacco products that taste and smell like tobacco products’

| December 19, 2013

The EU’s Permanent Representatives Committee yesterday approved a revised EU tobacco products directive that, in part, and in the words of a Council press note, aims to ensure that ‘tobacco products taste and smell like tobacco products’.

The new directive has still to be formally adopted by the European Parliament and the Council, which will vote on it only after the legal-linguistic revision of the text has been finalised. And once the directive is adopted member states will have two years to transpose the new rules into national law.

According to the press note, and in the words of the press note, the compromise text of the directive approved yesterday includes the following ‘key measures’:

‘A ban on the placing on the market of cigarettes and roll-your-own tobacco with characterising flavours such as fruit flavours, menthol or vanilla. This is to make sure that tobacco products taste and smell like tobacco products. The ban on mentholated products will apply only four years after the directive being transposed by the member states. Member states will also have to ban the placing on the market of tobacco products containing additives in quantities that increase in a significant or measurable manner the toxic or addictive effect, or the carcinogenic, mutagenic or reprotoxic properties.

‘Combined picture and text health warnings will have to cover 65 per cent of the front and the back of packages of tobacco products for smoking. In addition, each packet of smoking tobacco must carry a general warning (such as “Smoking kills – quit now”) and the information message: “Tobacco smoke contains over 70 substances known to cause cancer”.

‘A ban on any misleading labelling (such as “natural” or “organic”).

‘Introduction of a tracking and tracing system, together with safety features in order to strengthen the fight against illicit trade and falsified products.

‘Member states may decide to ban cross-border distance sales of tobacco products.

‘Member states may introduce more stringent rules on additives or on packaging of tobacco products (such as plain-packaging), subject to certain conditions (such as notification of the Commission).

‘The scope of the directive is extended to electronic cigarettes which will be subject of a number of safeguards (e.g. maximum concentration of nicotine of 20 mg/ml, maximum single use cartridge size of 2 ml). As regards refillable electronic cigarettes, the Commission will have to report on their potential risk to public health at the latest two years after the entry into force of the directive. If for justified reasons related to a serious risk to human health at least three member states have banned refillable electronic cigarettes the Commission is allowed to extend the ban to all member states. Member states may authorise electronic cigarettes under the rules for pharmaceuticals if they meet the provisions of the pharmaceutical legislation. The agreement is aimed at helping smokers to quit while preventing any incentive for young people to start smoking.’

New EU directive ‘just a first step’

| December 19, 2013

The compromise EU tobacco products directive negotiated by the Lithuanian presidency and the European Parliament on Monday, and endorsed by the Committee of Permanent Representatives on Wednesday, is ‘just a first step’, according to the Lithuanian Minister of Health, Vytenis Povilas Andriukaitis.

The compromise directive has still to be formally adopted by the European Parliament and the Council.

A press note issued by the Lithuanian presidency yesterday said that the EU had initiated the review of the directive having considered ‘the pressing need to reduce smoking among youth, decrease the number of smoking-related diseases, tackle the illegal trade, regulate marketing and advertising of tobacco products to discourage the public from smoking’.

“Agreement on [the] tobacco directive is a big step towards a healthier and more prosperous society,” the health minister was quoted as saying.

“It is just a first, but crucial step in protecting the public health and in harmonizing the market of tobacco products at the Union level.

“From the pragmatic point of view it is significant to all stakeholders of the EU internal market, as it establishes clearer rules for manufacturers, retailers and consumers.”

The minister was said to have added that an even more rigorous regulation of the tobacco market would ‘need to be continued in the future, based on the new research and lessons learned’.

So the new directive was just a starting point in implementation of the World Health Organization’s Framework Convention on Tobacco Control.

‘Hasty decisions’ on EU tobacco directive will lead to ‘ineffective legislation’

| December 19, 2013

Japan Tobacco International said yesterday that hasty decisions made in respect of the revised EU tobacco products directive (TPD) would lead only to ineffective legislation.

“The TPD has been negotiated hastily, pushed by political agendas, with little consideration given to the effectiveness of the numerous measures and the cost entailed for EU Member States and businesses,” said Ben Townsend, JTI’s head of EU affairs. He was commenting on the agreement reached yesterday between the European Commission, Parliament and Council on the proposal for a revised TPD.

“Policies that are not supported by strong evidence and that do not consider market dynamics are bound to fail – they do not deliver any public health benefits,” he said.

In a note published on its website, JTI said many of the measures of the revised TPD were disproportionate and were a threat to the internal market from an innovation, competition, consumer choice and cross-border trade standpoint. ‘Thousands of businesses – wholesalers, retailers, packaging suppliers to name but a few – will need additional time to absorb these radical changes.

‘Oversizing health warnings to 65 per cent with pictures positioned at the top of the pack and standardizing the pack shape and size (minimum of 20 cigarettes per pack and 30 grams for roll-your-own tobacco) will not work, as people already understand the health risks associated with smoking. Rather, these restrictions will confuse retailers and consumers, making it difficult for them to distinguish brands.’

JTI added that it would be much easier for counterfeiters to produce and sell cheap cigarettes that were not regulated, not tested, and not taxed. “The more complex and innovative the packaging is, the more difficult it is to counterfeit,” said Townsend. “Simply put, these restrictions will give counterfeiters a blueprint on how to fake a pack.”

The company said that, like many other measures, the proposal to ban entire product categories such as menthol cigarettes was not based on any sound evidence. If consumers were unable to find their preferred products through legal channels, smugglers would make sure they were available from the boot of their cars.

As a consequence, the TPD would threaten jobs, investment and much needed revenue in EU Member States. “While the legitimate tobacco sector directly and indirectly employs around 1.5 million people across the EU, the illegal trade in tobacco is already costing EU countries around €12.5 billion a year,” said Townsend. “This is what is at stake.”

JTI said that while objections to the TPD had been raised many times by EU member states, members of the European Parliament and a number of important parliamentary committees, it appeared their concerns had fallen on deaf ears.

‘Many of the measures still need to be carefully considered by EU decision-makers before the Parliament and Council come to vote for the final time on the TPD in the New Year,’ JTI added.

PMI defends tobacco-regulations record

| December 18, 2013

Philip Morris International, in a letter to The New York Times, has said that it supports most tobacco industry regulation and uses litigation to challenge regulations only sparingly.

‘As “Tobacco Industry Tactics Limit Poorer Nations’ Smoking Laws” (front page, Dec. 13) points out, governments around the world have enacted hundreds of regulations on almost every aspect of the tobacco industry, PMI said in the letter, which was signed by Julie A. Soderlund, vice president, communications.

‘What is not mentioned is that Philip Morris International supports the vast majority of these regulations, including advertising restrictions, penalties for selling tobacco products to minors, limitations on public-place smoking and reasonable health warnings on packaging.

‘The international trading and investment system has long protected the authority of governments to carry out this kind of legitimate, science-based public interest regulation.

‘When this standard is not met, the rules also ensure due process for all lawful industries. In a very small number of cases, we turn to the legal system as a last resort and ask only for a fair hearing and consideration of our case based on its merits before a neutral body.

‘Proposals denying anyone – including the tobacco industry – access to justice undermine the rule of law, which is at the heart not only of the international trading system but also a free and democratic society.’

The New York Times story, which was reported here briefly on December 13, is at:

Medical monitoring claim turned down

| December 18, 2013

New York’s highest court has ruled that smokers cannot use New   York law to force Philip Morris USA to pay for tests the smokers claim would provide early detection of lung cancer, according to a story by Bob Van Voris for Bloomberg News.

A federal appeals court in Manhattan, applying New York law, had asked the state’s highest court whether it would recognize a cause of action for medical monitoring. The New York Court of Appeals ruled by 4-2 yesterday that the state did not recognize a right to medical monitoring for smokers who weren’t sick.

The suit was filed in 2006 by four smokers seeking court-ordered low-dose computed tomography, or CT, screening tests for Marlboro smokers over the age of 50 throughout the state.

“We believe that the New York Court of Appeals correctly held that there is no basis under the law that supports creating a medical monitoring claim,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA. “In so ruling, the New York Court of Appeals has joined with many courts throughout the country in rejecting such a sweeping new cause of action.”

‘In its decision, the court said, “Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence”,’ according to a PM USA note posted on its website.

‘In declining to create a new cause of action, the court expressed serious concerns about the “potential systemic effects of creating a new, full-blown tort law cause of action”. The court concluded that creating a medical monitoring cause of action could result in “effectively flooding the courts” and noted that “there is no framework concerning how such a medical monitoring program would be implemented and administered”.

‘In 2011, a federal district court ruled that there was no legal basis for claims made by plaintiffs in Caronia requesting that the company pay for annual low-dose CT scans for long-term smokers to determine whether they have lung cancer. The trial court dismissed the lawsuit finding that plaintiffs’ claims were legally invalid.’

Chief Judge Jonathan Lippman said in a dissent that the majority of the court “resolutely stands frozen in time”, refusing to grant the smokers an opportunity to claim access to technology that could save lives.

“The common law must evolve with advances in scientific understanding to fashion relief and provide redress for wrongs newly understood, particularly when such relief can prevent devastating disease and death,” Lippman said.

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