Tobacco Documents Online

IN L ITI GATIION BARCLAY has been marketed'in a number of countries and, in most countries in which it has beeni sold, BARCLAY has been subject to~legal attack. In a number of cases, the court has found in BARCLAY's.favour, in some others it has not. In at least one couintry, the litigation process is stillicontinuing. In all countries where court action has taken place, this process has been initiated by tobacco companies in competition with Brown 4Wil liamson and in particular\ hili'p Morri'.s. ~ No consistent view has emerged, from the various courts that havee consideredlthe BARCLAY issue and, consequently, it is really not possible to turn to them for guidance. The various court decisions only serve to illustrate that this is a scientific issue which,, in the end, must be determined by those with the appropriate expertise to, makee the judgement. The following is a summary of the legal actions which have taken place to date onia country by country basis:- tUrrited States After protracted litigation ini the United States a Federal Court ruled that Brown & Willliamson could continue to advertise BARCLAY as "'99% tar free" and "ultra low tar". The court also held that no specific milligram tar content rating could be advertised for BA'RCLAY without concurrence by the US Federal Trade Commission provided,, however, Brown & Williamson could present the results of ai different raniking system so 1'ong as the advertisement of such results avoids confusion.wi'th the FTC testing system. Since the conclusion of the court action, the FTC'has asked for comments on the development of a new testing method andl recentlly authorised'Brown &' Williamson to advertise BARCLAY as 3 mg tar.

N /Z Holland In Holland, Philip Morris asked the court to prevent BARCLAY from-being describedlas a 11mg, product. This claim was rejected. Philip Morris also applied to the Advertising Code Committee (the Dutch equivalent of the British Advertising StandardsAuthority)! in, an attempt to~ get this body to, condemn BARCLAY's adwertising, as misleading. Phiilip Morris' complaint was rejected. A copy of the Advertising Code Committee's decision is enclosed as N74. B~el ium P'hilip Morris applied to a court ini Belgium to prevent BARCLAY carrying the, descri ptiion 11 mg tar. The Bel g ian court deni edl Phi l i p Morri s' request and confirmed that in its vi~ew the 1 mg tar description wass correct. Philip Morris appealed this decision and its appeal was rejeeted by the Appeal Court. P'hilip Morris took the case to the Belgian Supreme Court and', once again, Philip Morris' appeal was rej~ected and the decision of the lower court vindicating BARCLAY was upheld. Co~p~iesofthecourt judgements, with the exception of thee written judgement of the Supreme Court which is in the process of being obtained, are inclludedl (N7'SE, N75F,, N76).. (I Cerman There were two court ac tions in German district courts in which an injunction was sought against BARCLAY. One hearing was in Munich andl the other was in Colog~ne and they took place within a few days of each other. In one case (Cologne) an injunction was granted and in the other (Munich) ani injunction was refusedi. The publicity generated by the court actions was having a very serious effect upon BARCLAY's performance in the market place. As a co.nsequence, the litigation.was settled in return for BAT Cigarettenfabriken's acquiescence to an ../..

N /3 interim solution which involved classifying BARCLAY as a 6 mg,product. This was not a scientific solutioni but was based on an average of the tar figures obtained with the ventilation completely bllocked and completely unblocked. A copy of the Munich decision is enclosed (N77). A copy of the Cologne deciisioni was submitted to the Working Grouip by Mr Lopez. A~ l letter i s a llso encl osed from BAT Ci gare tten Faibriken giving the commercial reasons why it was necessary to seek a settlement of the litigation (N78). Switzerland ~ The litigation has not yet concluded. Preliminary injunctions were sought against BARCLAY, on two occasions. The first attempt was unsuccessfull. However, the second attempt succeeded. Nevertheless,, these were only preliminary hearings and a fundamental law suit is still conti'nun'ng which is unlikely to be resolved for some time to come. Finland! There has.been, no litilgation. A compllaint to the relevant government authority was unsuccessful and our competitors were advised that the authority saw no reason to change the testing methodology "at this stage". No rway Phi 1 i p, Morris complained to the Ombud'smain and the Mi ni stry of Social Welfare which iis responsible for matters relating to cigarette testing. The Consumer Ombudsman decTined to deal with the complaint andlthe Ministry of Soiciall Welfare commissiioned an investigation by the Tobacco Injury Council who, in turn, referre& the matter to a scientific expert nominated by the~World Health Oirganisation. Thee expert concerned, after investigati'ng,the matter, had concluded that it ../..

would be sensible to ado~pt a banding system with BARCIAY beiing tested in a manner which would place it in the lowest tar group. However, the attention of the authorities was drawn to events which had taken place ini Germany and the result was that the authorities adopted a solution simiilar to that in Germany.