Big Tobacco Sues Uruguay

Posted on Categories Business Regulation, Health Care, Public

fda cigarette warning lungsThose who follow efforts to use law to reduce smoking will be aware the United States Court of Appeals for the District of Columbia found in R.J. Reynolds v. FDA, 696 F.3d 1215 (D.C. Cir. 2012) that mandatory graphic imagery on cigarette packs was a violation of commercial speech rights. As a result of the decision, cigarette packs continue to have only prosaic warnings, which go not only unread but also, for the most part, unnoticed.

Foreign countries, of course, are not bound by U.S. law, and Uruguay forged ahead with its own laws requiring graphic warnings. They include photos of decaying teeth, premature babies, and disturbing hospital scenes, with each picture covering 80 percent of each pack. Big Tobacco cannot invoke its commercial speech rights in Uruguay, but Philip Morris has sued Uruguay for $25 million, alleging the required warnings violate treaties protecting intellectual property rights.

The case is in the courts, with former New York City Mayor Michael Bloomberg paying many of Uruguay’s legal costs. Smoking is on the rise in developing countries, and many think the decision in Uruguay will have significant impact on other developing countries’ willingness to require graphic warnings.

For my own part, I strongly endorse the required graphic warnings in the name of social justice. Smoking in both the United States and abroad is increasingly concentrated among poor and working-class men and women, and the health problems associated with smoking are also greater in these sectors of the world population. For the poor and members of the working class, reading skills and even any interest in written texts are limited, but poor and working-class smokers are aware of and receptive to visual imagery. If they could literally see what smoking causes, they might fight harder to break their deathly, addictive habit.

4 thoughts on “Big Tobacco Sues Uruguay”

  1. It seems like the Foreign Sovereign Immunities Act might bar the lawsuit. RJ Reynolds can get around sovereign immunity if it establishes that Uruguay’s act of requiring the warnings is somehow a commercial activity or tortious, but those arguments sound like a stretch. Either way, I assume the Immunities Act is/ will be an issue.

  2. I wonder if the author understands how patronizing his argument about social justice for the “poor and working class” is. The implication that those with less wealth are unable to read warning labels on cigarette packs, or fully understand the health risks associated with smoking unless supported by a large colorful picture, borders on insulting.

    The author, in his attempt to marginalize the 18.1% of Americans who smoke, leaves out another large demographic of smokers: college students.

    http://oralcancerfoundation.org/tobacco/demographics.php

  3. I don’t think the FSI Act will be in issue: if it’s the case I think it is, it’s being arbitrated in the International Centre for the Settlement of Investment Disputes pursuant to a treaty between Switzerland and Uruguay.

    I think Philip Morris may be fighting an uphill battle here: a very similar case over cigarette packaging and putative interference with property (JT International v Commonweath of Australia) was brought unsuccessfully by a few tobacco companies in the High Court here a few years ago (http://www.austlii.edu.au/au/cases/cth/HCA/2012/43.html). It’ll be interesting to see what ICSID makes of if all

  4. Yes, the case is being heard before the International Center for Settlement of Investment Disputes, a forum established by the World Bank. The case has nothing to do with “smokers’ rights” but rather revolves around the argument that requiring graphic warnings would devalue cigarette company trademarks which are protected under a bilateral treaty. The Center decided in 2013 that it did in fact have jurisdiction in the case.

Join the Conversation

We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author in the NAME field and a valid e-mail address.

This site uses Akismet to reduce spam. Learn how your comment data is processed.