The ban on imports of the JUUL e-cigarette device to Israel has reached the High Court of Justice. JUUL filed a petition today against the decision to ban importing and marketing of its product to Israel. The company is making a series of grave allegations concerning the motives behind the Ministry of Health's decision. Among other things, the petition asserts, "The regulator's policy of operating in the dark according to a hidden agenda, while strengthening the status of the tobacco companies at the expense of an alternative designed to save millions of consumers of harmful tobacco and smoke from the cancerous effects of tobacco consumption, is unacceptable."
The prime minister signed the order prohibiting the import of JUUL cigarettes to Israel at the request of Deputy Minister of Health Yaakov Litzman and as recommended by the ministry's professional staff. According to the ministry's staff, the product, which contains more than 20 milligrams of nicotine per milliliter, constitutes "a grave risk to public health."
In the 60-page petition presented by Adv. Eitan Haezrachy, the petitioners - high-tech company San Francisco-based JUUL Labs and Products, and its subsidiary, JUUL Labs Inc. - argue that the order is improper by any criterion and is aimed selectively and exclusively at companies in the JUUL group and their product, while in effect leaving the door wide open to competitors to sell their similar products and continue doing whatever they like. The petition attacks the Ministry of Health's policy, Prime Minister and Minister of Health Benjamin Netanyahu, and Deputy Minister of Health Yaakov Litzman. The petitioners say that their petition "originated in an unprecedented and unscrupulous campaign of persecution in which the authority is stopping at nothing in trampling the petitioners' basic rights."
JUUL asserts that within a very short time span, the Ministry of Health and its leaders took action simultaneously in several areas, promoting both Knesset legislation and an administrative proceeding, for the purpose of immediately halting the marketing of its product, thereby causing several and disproportionate damage to freedom of occupation and property rights in breach of the terms in the limitation rule.
The petition is aimed primarily against the administrative proceedings taken before the order banning marketing of the product was issued. These proceedings included a hearing which the petitioners allege was tainted with "every possibl flaw." According to the petitioning companies, the order was never given to them; they became aware that it had been issued from a report on Channel 2. The hearing proceeding was not conducted at the initiative of the minister of health or his deputy, although it was their duty to do so; it was conducted only after they received an explicit instruction from the Deputy Attorney General. The hearing was allegedly conducted after an opinion about the product had already been formed and its fate sealed, while the representatives at the hearing had already spoken harshly and aggressively against the product five months before the hearing. It was also alleged that the minutes of the hearing had been fabricated and a "final" decision had been published before the hearing proceeding ended.
The company referred in this context to committee member Haim Geva Haspil, a leading figure in the Ministry of Health's education department and one of the people who conducted the hearing for the company. Before the hearing, he compared the company to "legal drug (nicotine) dealers" on his Facebook page.
It is alleged that the "final decision" to issue the order was taken with a lack of authority, while the petitioners learned of it only through the media one day before the company was asked to deliver to the Ministry of Health materials and answers to questions supposedly so that authority could make its decision.
The companies refer to the proceeding as a "set of tortures" that leaves them no choice but to file the petition. "If this petition is not granted, the conclusion will be that the authority is above the law. It is permitted and entitled to do anything. Fundamental rights will become a recommendation, and any ruling or law concerning the government authority will be rendered meaningless," the petition states.
It should be mentioned that attached to the petition to the High Court of Justice is a medical opinion from the head of the Mayanei HaYeshua Medical Center, Prof. Moti Ravid and the cardiologist and internal medicine specialist Prof. Yehuda Adler. Both of them have formulated a detailed and reasoned professional opinion, according to which use of vaporized instruments such as JUUL does not expose the user to the cancerous substances found in smoking cigarettes, and which is responsible for most of the damage caused by smoking tobacco; and there is no research evidence that vaporization products can cause a 'jump' in smoking cigarettes. So far the professional opinion of Profs. Ravid and Adler have not been hidden by the Ministry of Health.
The company stresses that, "the Draconian order" signed by Netanyahu - is based on a clause of the pharmacy order - that has to date never been used - and is "the fruit of the persistent refusal of the Ministry of Health and its heads to meet with representatives of the public (despite instructions from the chairman of the Economics Committee MK Eitan Cabel), and to allow them to bring before the committee the relevant information in an attempt to reach a solution that would enable lives without carcinogenic tobacco for many smokers and their families."
JUUL e-cigarettes are electronic cigarettes containing nicotine without any other tobacco materials. The companies that market e-cigarettes containing nicotine portray them as a substitute for smokers, consumption of which incurs a significantly lower risk than consumption of conventional cigarettes in which the tobacco burns and which contain additional materials in the nicotine compound in order to make it possible to vaporize it.
In its petition, JUUL argues that the regulator's policy, which completely ignores the view of the US Food and Drug Administration (FDA) in favor of allowing the use of JUUL's products, is unacceptable. According to JUUL, the FDA found that tobacco and its burning were the hazardous factors in smoking, not the nicotine. The petitioners state, "The order betrays the goals of the Ministry of Health - to improve the health of Israelis - and encourages the use of combustible cigarettes known to cause death in Israel and worldwide."
Published by Globes [online], Israel business news - www.globes-online.com - on August 23, 2018
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