Plaintiff Corrales challenged the constitutionality of legislative measures banning the advertisement and promotion of tobacco products, arguing that the measures violate the freedoms of economy and enterprise. The court emphasized the hazardous nature of tobacco, the necessity to protect the rights to life and health, and Colombia's obligations under the WHO FCTC. Concluding that the rights of economy and enterprise are not absolute, the court held that the imposed restrictions are compatible with the freedom of enterprise and free private initiative and therefore not unconstitutional. Notable is the Court’s explicit use of the WHO FCTC and the WHO FCTC Article 13 Guidelines to interpret ambiguities in the national law. The Court also used the Guidelines to interpret the norms of the treaty and the obligations on the Parties pursuant to those norms. In addition, it is worth noting that according to the Court, commercial speech can be restricted in a higher degree than other speech because it is more closely linked to freedom of enterprise than to freedom of expression.
Caceres Corrales v. Colombia, Judgment C-830/10, Corte Constitucional de Colombia [Constitutional Court] (2010).
Colombia
Oct 20, 2010
Constitutional Court (Corte Constitucional de Colombia)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"...[T]he lawmaker, planned for a comprehensive ban on the
advertising and promotion of tobacco consumption, and the restriction on the
sponsorship of cultural and sporting events, when the objective is the direct
and indirect advertising of tobacco products and their derivatives. These
measures are compatible with the freedom of enterprise and free private
initiative, as the lawmaker may impose restrictions, including up to
prohibition, on commercial advertising, when there are compelling reasons to
render measures of such nature proportional. In the case analyzed, there is an
overall consensus in terms of the intrinsically-hazardous nature of tobacco
products and their derivatives, considering the certain, objective and veritable
damage that it causes to the health of its consumers and second-hand smokers,
as well as to the environment. This verification, in addition to the fact that the
legal prohibition in question, (i) does not affect the essential core of the
economic freedoms, as it is compatible with the production and
commercialization of tobacco products and their derivatives; (ii) preserves the
right of the consumers to know about the effects and consequences of the
consumption of such goods; and (iii) develops commitments subscribed by the
Colombian State in matters of tobacco control; together allow concluding that
the analyzed norms do not breach the aforementioned freedoms."
"The above judicial decisions allow for the conclusion that in comparative law there is a consensus in terms of the prima facie validity of legislative measures that tend to limit, and even ban, the commercial advertising of tobacco products. The common features of the various decisions studied, along these lines, relate to (i) the admissibility of such restrictions, by reason of the effects that the consumption of tobacco has for public health; (ii) the possibility that restrictions be imposed for reasons of constitutional value, even stringent restrictions, to the freedom of enterprise and the protected scope of commercial speech; and (iii) the need to conduct a proportionality trial to determine the validity of the arrangement between means and purposes, with respect to the limitation imposed on tobacco advertising and the discouraging of consumption, especially with respect to those subject to special protection."
"Finally, there is an objective and veritable relation between means and purposes. The purpose of the commercial advertising of the tobacco products is to affect the consumption decisions of the people, so that they will choose to regularly acquire and use such goods. Along these lines, as indicated, the comprehensive ban of these acts of advertising and promotion, and the intensive restriction of sponsorship, inures in the reduction of such consumption. Along these lines, the Chamber finds it relevant to clarify that, considering the conditions of the minor proportionality trial of the measures of State intervention in the economy, the relation between means and purposes must be proven plausible or reasonable, without it being necessary to prove, based on factual data, that the objective is accomplished. In the case analyzed, both the participants and the recitals supporting the FCTC coincide in affirming that there is a link between the ban in question and the reduction of tobacco consumption indices. These verifications, in the opinion of the Court, are sufficient to pass this suitability trial. According to the considerations set out in this section, the challenged norms are therefore not unconstitutional."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Plaintiff Corrales challenged the constitutionality of legislative measures banning the advertisement and promotion of tobacco products, arguing that the measures violate the freedoms of economy and enterprise. The court emphasized the hazardous nature of tobacco, the necessity to protect the rights to life and health, and Colombia's obligations under the WHO FCTC. Concluding that the rights of economy and enterprise are not absolute, the court held that the imposed restrictions are compatible with the freedom of enterprise and free private initiative and therefore not unconstitutional. Notable is the Court’s explicit use of the WHO FCTC and the WHO FCTC Article 13 Guidelines to interpret ambiguities in the national law. The Court also used the Guidelines to interpret the norms of the treaty and the obligations on the Parties pursuant to those norms. In addition, it is worth noting that according to the Court, commercial speech can be restricted in a higher degree than other speech because it is more closely linked to freedom of enterprise than to freedom of expression.