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43 decisions

Brazil

Nov 2, 2020

Public Ministry of Rio de Janeiro v. Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli

The Public Ministry in Rio de Janeiro presented a civil action against Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli for illegal advertising in the festival "Rock in Rio" 2017. On November 2, 2020, the court concluded that the defendants engaged in unlawful advertising during the festival. The illegal advertising included (i) visually ostentatious advertising of smoking products and (ii) "mobile sellers.” On the other hand, the sale of a kit that included cigarettes and a lighter with the logo of "Rock in Rio" was not recognized as an illegal practice. The defendants were sanctioned as follows – (1) Defendants were fined R$ 2,000,000.00 for collective moral damages. For individual material and moral damages, each consumer will need to prove individually the actual damage suffered. (2) Defendants must carry out counter-advertising in partnership with public universities and hospitals informing consumers about the risks, prevention, and treatment of Chronic Obstructive Pulmonary Disease (COPD), and smoking cessation.

In addition to bringing this enforcement action against the illegal advertising that took place at the Rock in Rio 2017, the Public Ministry sought an interim judgment barring illegal promotional activities at the then upcoming Rock in Rio 2019 festival. In response to this request, the court issued a series of orders restricting the promotional activities at the 2019 festival.

Brazil

Aug 24, 2020

Confederação Nacional do Turismo et. Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná

The National Confederation of Tourism, together with the National Confederation of Commerce of Goods, Services, and Tourism, filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that state legislative assembly did not exceed its competence to legislate public health. The Court concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

Brazil

Aug 24, 2020

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court also concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

Brazil

Dec 20, 2019

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Rio de Janeiro

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against Rio de Janeiro's tobacco control law on smoke-free environments, which banned smoking in public or private collective environments. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court noted that local regulations could be more restrictive than the federal regulation. Further, the judges established that (i) freedom of commerce must be interpreted together with the principle of consumer protection and (ii) restrictions on products that are potentially dangerous are legitimate.

Brazil

Dec 3, 2019

Confederação Nacional do Turismo v. São Paulo

The National Confederation of Tourism filed a lawsuit against a São Paulo (state-level) tobacco control law regulating smoke-free places. The judge considered that the action was impaired because, after the claim was filed, a federal law was enacted which regulated smoke-free places in a more comprehensive manner. The newly enacted federal law banned smoking lounges, which the challenged state law had already done.

Brazil

Feb 1, 2018

National Confederation of Industry (Confederação Nacional da Indústria) v. ANVISA

In 2012, Brazil banned tobacco additives and flavors. The National Confederation of Industry (Confederação Nacional da Indústria) challenged the ban. The Supreme Federal Tribunal, Brazil’s highest court, upheld the 2012 regulation and affirmed the Brazilian Health Regulatory Agency’s (ANVISA) right to regulate tobacco products. The court held that freedom of enterprise does not prevent Brazil from imposing conditions and limitations on private activities. The court found that while businesses have rights, they must be compatible with other fundamental and constitutional rights. In the case of tobacco control, these fundamental and constitutional rights include the right to health and the right to information. The court further held that the risks associated with tobacco consumption justify the tobacco market being subjected to intense health regulations.

Because the court failed to reach a majority (5-5 tie), the decision is not binding on other tribunals, and, by not reaching a majority, the court rejected the constitutionality claim against the ANVISA regulation (“Resolução da Diretoria Colegiada da ANVISA 14/2012”). Although the decision is not binding because of a lack of quorum, it is unlikely that subsequent challenges to the regulation would be decided differently.  (Note that the decision is in Portuguese with five pages translated into English. The English translation is located in "Related Documents.")

Brazil

Dec 17, 2012

Sinditabaco v. ANVISA

A Brazilian tobacco lobbying group, Sinditabaco, brought an action to stop the National Health Surveillance Agency, ANVISA, from implementing a rule to ban the use of additives and flavorings in cigarettes.  The group argued that ANVISA did not have the legal authority to make the rule and that the rule was not supported by any scientific evidence as to the health effects of the flavorings.  The group claimed the rule would affect over 95% of tobacco users and presented a petition signed by various stakeholders in the tobacco product supply chain claiming that it would cause billions of dollars of losses.  The legal representatives of ANVISA were not present at the hearing on the issue.  The court agreed to grant the preliminary injunction stopping the implementation of the rule, pending a hearing on the merits of the case.

Brazil

Sep 28, 2012

Souza Cruz v. ACT Brazil

Souza Cruz, a tobacco company, sought to prevent ACT Brazil, a public health NGO, from publishing a video criticizing the placement of tobacco products near candies, gum and other products popular with children. Souza Cruz argued that the video suggested the company was encouraging the criminal act of selling cigarettes to minors.  The court ruled that the video did not target the company specifically but was instead generally advocating for greater restrictions on point of sale placement of tobacco products.  The court found there was no injury to the company sufficient to justify a restriction on freedom of expression. This is a decision of the appellate court agreeing with the trial court to deny the injunction sought by the tobacco company.

Brazil

Sep 5, 2012

Souza Cruz v. ACT Brazil

Souza Cruz, a tobacco company, sought to prevent ACT Brazil, a public interest NGO, from publishing a video criticizing the placement of tobacco products near candies, gum and other products popular with children. Souza Cruz argued that the video suggested the company was encouraging the criminal act of selling cigarettes to minors.  The court ruled that the video did not target the company specifically but was instead generally advocating for greater restrictions on point of sale placement of tobacco products.  The court found there was no injury to the company sufficient to justify a restriction on freedom of expression.

Brazil

Aug 4, 2011

Ministério Público, et al. v. Souza Cruz SA

The plaintiffs brought a lawsuit against Souza Cruz, a tobacco company, seeking damages for the death of their father, who allegedly developed a habit of smoking because of heavy advertisement and lack of information on the contents and side effects of cigarettes. The lower court dismissed the case and the plaintiffs appealed to the higher court with the intervention of the Public Prosecutor's Office. The plaintiffs argued that they were not given due process of law to produce evidence before the court and claimed damages. The higher court found that the plaintiffs’ father had smoked out of free will and that he had sufficient information on the consequences of tobacco consumption.  The Court affirmed the lower court's decision and dismissed the appeal.

Brazil

Jul 26, 2011

Chaves v. Souza Cruz S/A

The plaintiff brought an action against Souza Cruz, a tobacco company, seeking damages for all the health problems allegedly resulting from his use of tobacco products. He alleged that he was induced into smoking cigarettes by the defendant's misleading advertisements. The lower court decided in favor of the tobacco company, finding that the plaintiff had exceeded the statutory time limit to bring the claim. The plaintiff appealed to the higher court, arguing that he had not been given the right to due process of law -- the right to produce evidence -- and that the statutory time limit did not apply. The higher court decided in favor of the tobacco company, stating that the plaintiff had been given the opportunity to produce evidence and that the statutory time limit did apply to the case.

Brazil

Mar 22, 2011

Bernhardt v. Philip Morris Brasil S A

The plaintiff filed a lawsuit against Souza Cruz, a tobacco company, seeking damages for the death of his spouse, who he alleged died from health conditions associated with consuming the defendant's tobacco products, which allegedly resulted from the defendant's misleading advertisements portraying healthy and athletic people smoking. The lower court dismissed the case and the plaintiff appealed to this appeals court. The Court decided in favor of the plaintiff and ordered the defendant pay damages.

Brazil

Jan 10, 2011

Vescovi, et al. v. Souza Cruz S A

The plaintiffs sought damages under various tobacco control laws from defendant tobacco company, Souza Cruz, claiming that defendant's misleading advertisements led to their husband/father's consumption of tobacco products for many years and his eventual death. The Court held in favor of the tobacco company and dismissed the case, finding that the defendant had acted in compliance with the tobacco control laws.

Brazil

Dec 30, 2010

Alegre v. Souza Cruz S A

The plaintiff, Dina Ribeiro Mont Alegre, filed a lawsuit against Souza Cruz, a tobacco company, seeking damages for health problems she was suffering allegedly due to tobacco consumption. She claimed that when she began smoking, the advertisements were misleading and did not warn her about the possible health problems caused by the substances in the cigarettes. The Court ruled in favor of the tobacco company, finding that the consumer has the liberty of choosing to smoke and that, at the time the plaintiff had started smoking, tobacco companies were not obligated to warn consumers in their advertisements. Therefore, the Court exempted the defendant of any responsibility.

Brazil

Sep 13, 2010

Associação Brasileira de Bares e Restaurantes, seccional São Paulo (ABRASEL-SP) v. Diretor Exectivo da Fundação de Proteção e de Defesa do Consumidor de São Paulo (PROCON-SP), et al.

The Association of Bars sought to continue permitting clients to smoke in food establishments after the State of Sao Paulo passed a prohibition against the practice. Specifically, the plaintiff claimed that the law prohibiting smoking in restaurants was unconstitutional because São Paulo exceeded its powers when it legislated the matter. The defendants claimed that they rightfully legislated legal provisions complementary to the Constitution and the Framework Convention on Tobacco Control (FCTC), which Brazil has ratified. The defendants therefore claimed that the law passed in the State of São Paulo was constitutional and that the bars and restaurants had to provide a smoke-free environment.  The plaintiff appealed the decision of the lower court, but the higher court affirmed the constitutionality of the State of São Paulo's law.

Brazil

Jun 29, 2010

Sivieri v. Cia de Cigarros Souza Cruz

The plaintiff sought damages for health problems that she claimed to have suffered as a result of her use of tobacco products, which she had begun consuming at a very early age. She claimed that the tobacco company, Souza Cruz, advertised smoking as being healthy, classy, and the source of well-being, which led her to start smoking. The plaintiff died during the litigation and her spouse and son continued the lawsuit and demanded financial compensation for all of the original plaintiff's medical costs, as well as for the pain and suffering she and her family experienced. Finding that the plaintiff had demonstrated that the tobacco company knew about the harmful consequences of its products, but nevertheless refrained from disclosing them in pursuit of financial gains, the Court held in favor of the plaintiff. The court ordered Souza Cruz to compensate the plaintiffs.

Brazil

Feb 18, 2010

Silva, et al. v. Philip Morris Brasil, Ltda.

The plaintiffs sued Philip Morris Brasil seeking damages for the death of their relative allegedly caused from tobacco consumption. Specifically, the plaintiffs alleged that misleading advertisements about the attractiveness and lifestyle benefits of tobacco products induced the deceased to smoke. The trial court and the appeals court ruled in favor of Philip Morris, finding that the victim had smoked out of his own free will. The plaintiffs then appealed to the Superior Court of Justice. The Superior Court found the appeal inadmissible because the plaintiffs alleged a violation of the Consumer Protection Code, which was not in effect at the time the plaintiffs' relative began smoking. The Superior Court refused plaintiffs' request to re-examine the facts the case. The appeal was dismissed and the higher court's decision maintained.

Brazil

Sep 23, 2009

Agência Nacional de Vigilância Sanitária (ANVISA) v. Philip Morris Brasil Ind. Com. Ltda.

The National Agency of Sanitary Surveillance (ANVISA) sought a review of the decision of a lower court finding Philip Morris in violation of a tobacco control regulation that required the tobacco company to place warnings on the packaging of the company's products on the harmful effects of tobacco consumption. The defendant alleged that ANVISA's regulation went outside the scope of the agency's power to regulate tobacco products. The defendant also claimed that requiring tobacco companies to place grotesque images on their products would compromise their competition in sales in the market. The case was appealed and the higher court determined that the regulations issued by ANVISA complied with the articles of the Brazilian Constitution. Therefore, the Court ordered Philip Morris to immediately place warnings on the harms caused by the tobacco consumption on the packaging of its products.

Brazil

Sep 15, 2009

Tabacaria Anapurus Ltda. v. Diretor Executivo da Fundação de Proteção e de Defesa do Consumidor (PROCON/SP), et al.

Tabacaria Anapurus, a tobacco shop, brought action against the Consumer Protection Agency, claiming that the tobacco shop fell under the exception of a São Paulo tobacco control law and could therefore allow the use of tobacco in its establishment. The Court found in favor of the defendant, holding that the plaintiff did not fall under the exception and that the plaintiff needed to prove exactly the type of establishment that it was in order to benefit from the tobacco control law's exception.

Brazil

Sep 3, 2009

Dias, et al. v. Souza Cruz

Plaintiffs sought damages for the death of a spouse/father, alleging that the victim was influenced by the defendant tobacco company's advertisements, which associated smoking to luxury and a good and healthy life. The defendant argued that the case should be dismissed because the plaintiffs had not filed the lawsuit in a timely way following the spouse/father's death. The Court found that the Brazilian Civil Code's provision at issue did not apply, and therefore, the Court upheld the lower court's decision in favor of the plaintiffs. The Court also required Souza Cruz to compensate the plaintiffs based on the principles of proportionality and reasonableness. 

Brazil

Jun 17, 2009

Agência Nacional de Vigilância Sanitária (ANVISA) v. Souza Cruz S/A

A tobacco company challenged a resolution that mandated all tobacco packaging and advertising warn consumers of the health risks associated with smoking.  A lower court suspended implementation of the judgment until final resolution of the case.  The tobacco company alleged that the images it was required to place on its packages and advertisements were shocking and unrealistic and that the implementing agency, the National Health Surveillance Agency (Agência Nacional de Vigilância Sanitária (ANVISA), exceeded its powers by issuing the resolution. ANVISA filed an interlocutory appeal.  The higher court decided in favor of ANVISA and overruled the decision of the lower court to allow the company to refrain from having to place warnings on the packaging and advertisement of its products.

Brazil

Apr 24, 2009

Ministerio Publico Federal v. Agencia Nacional de Vigilancia Sanitaria (ANVISA)

The Public Prosecutor's Office filed an action against the Federal Government and the National Health Surveillance Agency (ANVISA), claiming that the law demanding that all tobacco product packages carry pictures warning about the harms caused by tobacco was unconstitutional and violated the constitutional right to humane treatment and dignity. The Public Prosecutor alleged that the pictures displayed were overly shocking and insulted smokers. The Federal Government and ANVISA refuted these arguments claiming the pictures had been scientifically proven to play an important role in decreasing the consumption of tobacco in the population. They also underscored that as a signatory of the Framework Convention on Tobacco Control, Brazil's measures used to regulate tobacco consumption were all legally based. The Court ruled in favor of the Federal Government and ANVISA, upholding the law as constitutional.

Brazil

Apr 2, 2009

Sindicato da Indústria do Fumo no Estado do Rio Grande do Sul v. Agência Nacional de Vigilância Sanitária (ANVISA)

The National Health Surveillance Agency (ANVISA) issued a regulation regulating package labeling and advertisement of tobacco products.  The plaintiff, a tobacco industry union, filed an interlocutory appeal to overturn the lower court decision that upheld ANVISA's regulation. The plaintiff alleged that the warnings were prejudicial against the tobacco companies and overly shocking.  ANVISA argued that the warnings were necessary to alert potential consumers of risks associated with tobacco consumption and that the Constitution and the Framework Convention on Tobacco Control (FCTC) supported ANVISA's authority to regulate the matter. The appeal was dismissed and the decision of the lower court was affirmed.

Brazil

Nov 12, 2008

Philip Morris Brasil S A v. Associação de Defesa da Saúde do Fumante (ADESF)

The Association for the Defense of the Health of Smokers (ADESF) brought an action against Philip Morris, a tobacco company, for failing to warn consumers of the State of State of São Paulo about the health risks of consuming tobacco products in the packaging and advertisement of the company's products. The lower court ordered the company to pay damages to all tobacco consumers in São Paulo for failure to warn them of the risk of addiction to tobacco consumption. The tobacco company appealed the decision and the higher court reversed the lower court's decision in favor of the tobacco company, holding that there had been a violation of due process of law, as the tobacco company had not been given the opportunity to present evidence proving that tobacco does not directly cause health problems.

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