Tobacco Documents Online

mouth-end of the cigarette would be essentially equal to the pressure that would be exercised by human lips. mbreover, i t is by no mezns evident tha t, as so'crr as the smoker puts the Barclay cic,arette to his lips, obstruction, of the peripheral canals necessariliv follows. The coc_ t has itself ccnducted an experiment on a cac}tace cf'cica.ettes that was included in :}1e file. We were able to ob.tair obstruction, of' one carral only' by exercisino uithi the liips cn the end of the ci'Sarette a pressure that was at the limit of discomfort anc': which we stroncly dioubt an eve:ace sno3cer would' apply. O'bviously, this experiment ils in no way' scien.ti'.ic,, but it shows us all the more to what point the accusat:ons of falsitl^ advznced' by the claintif'`f rels, upcr factual eilements that are extremel_v va_'_able, unco-trcjli`bie and, thus, worL9)'.' of, caution. It follows from what has been said above that, in an1• eve;st,, one r,.zy not consider as a viollation of the la'w, ccn commercial practices advertisinc that is based or. results of tests that were legally obtained. r?ioreover, nothinc wo:.:lld justifv us in sal•ing that the defendant exceeded _ts rights by proc.ai-ing, irn its advertising the results thus obcained. on the present state of the record and c_ven the imronde.ables presented by the behaviour cf each smoi:er, there is not.';_::q to jLs;ify ~ a_ fincinr• that other test methocs would, with at least the same scie:_ific obiectivitv, yieia a cif'fe:ent and less. favorable result. (It coes wit),out s'a.-inic that our rE2,so::_nc, which reaches a conclusion on this p'o:nt a fortiori dices not imply that in t'he opposite hypothesis the mdk-eztising,in auestio.n woLld'r.ecesszrilw be illegal; such a case would have to be examineo on i ts own r.:eri ts and this cannot be done on the present record!'. In view of the considerations set forth at ve, it is o5vioLslv_ irrelevant to confe, upon ar, expert any r„ission w':atsoeverr because: 1Y the defendant dio' nothino nore than comply :-i:.h the law; znc 2), the defemdart's acvertisinc is based upon f:cLres obtaiaec from t sts that were made in accordance with law, arr' one cannot criticize someone who croc?a_ns that he has ~ respected the law. Moreover, we emphasize again that such: expertise would not, in any event, vield definitive results that, even though the tests were conductec' in conformity with the legal provisions, the results in actual daily 1?'fe would be different from, those advanced and'. advertised bv the defendant and that tY.is cif'.erence would always exist, inevitably and cor- - s;.antly. -

he aec' that such an expertise could possibly shed' light on the fac: that, even with brands that are competi'tors of the ce:endant and which publicize test results similar or nearr to those cf the defendznt's cigarette, the behaviour of the in,~:v:cLal smoker can defeat the technicues usec' to increase cilLtio- of the smoke (and thus decrease the tar and nicot:ne, con~tent per puf f 1'. Fro-. the above,, it foLlows that the claims as formulated inn the initial pleading and' in the plaintiff's brief must be ceclared' to be baseless. _ FOR THESE REASONS t•:e, Georges BOGAERTS, Vice-Presidert, sittinc as a referee in an action for an injunction, replacing the P:esident of the court who is leoally, pprevented from being here, and assistec' by Anna FRANS, Chief-Assistant clerk.. Tn view of articles 4 et sec. of the law of June 15, 1935 as applicable to this case, we hold that there is no basis +_ponn which to reopen the debates,, and, in adcit;ion, rendering arr adversa:v decision, we receive the complaint as formulated in the i;*itial pleacinc, and in the plaintiff's brief, and we dec?ar e that this cLaim is in both documents and ' instances un_oundec; we state :`lrther that there is no reason for en, expertise and we nfJnrsult the F'Aainti,f'f of its c:aiPlS, reguirinc it to pay costs. The amount of these costs is fixe¢ at SIX THOUSAND THREE HUNDRED AND SEL.E2:TS`-FO'UR FRANCS orn the plzinti. 's side and TWO THOUSbND, AND, SFVEN FRAINCS on the defendant's side. It has thus been adj'udgec and'decreec at the public audience cf the Inj'unction Court - Chamber of Referees of the Court of Commerce sitting i'r Brussels on Noy, 9, 1983. A. FRANS G'. 30G,ERTS'