Country: Germany

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Philip Morris GmbH v. Land of Bavaria [Germany] [December 11, 2013]

Philip Morris International’s German subsidiary appealed a city authority's decision to ban the tobacco company’s “Don’t Be a Maybe - Be Marlboro" advertising campaign launched in Germany in 2011. The tobacco advertising contained six different forms of a theme - the words “Maybe” or “Be” and short phrases containing these words, coupled with images of young people engaging in daring and rebellious activities.  The administrative court upheld the ban and found that the Marlboro campaign encouraged teenagers as young as 14 years of age to smoke in violation of Germany’s tobacco advertising laws. Additionally, the administrative court found that the campaign created an unfair advantage for Philip Morris International as compared to tobacco companies that abided by the advertising regulations. In its decision, the administrative court stated “the advertising specifically targets risk-taking, rebellious youths” and found that Philip Morris International’s argument that the purpose of "Be Marlboro" advertising was to encourage adult smokers to switch to Marlboro cigarettes was not credible based on the fact that “there is already a high degree of brand loyalty in this group of persons.”

Menthol Capsule Case [Germany] [September 26, 2012]

The Federal Office of Consumer Protection and Food Safety denied a tobacco company's request to sell a cigarette that contained a menthol capsule that releases a burst of flavor whenever the smoker crushes the capsule during smoking. The tobacco company appealed the government decision.  In this decision the court upheld the agency's denial. The court found that the flavor capsules violated the principle of the Framework Convention on Tobacco Control that the attractiveness of tobacco products should not be increased by novel products. The court found that the effect of the releasing the refreshing flavor on demand encourages the smoker to remain dependent. Additionally, occasional smokers or young smokers may become addicted to cigarettes with the flavor capsule where they would otherwise be discouraged by the harsh and unpleasant tobacco taste. The court found that cigarettes with flavor capsules are more hazardous than conventional cigarettes, and upheld the ban. 

N., et al. v. Bavaria [Germany] [August 06, 2008]

A smoker and two restaurant owners challenged the constitutionality of provisions in the Public Health Protection Act regarding the ban on smoking in restaurants. In this final decision, the Court determined that it would not rule on the constitutional complaints because they had no significant basis under constitutional law. Additionally, the Court referenced an earlier ruling that legislators are not prevented by the constitution from giving preference to public health rather than to the rights negatively impacted by the Public Health Protection Act, particularly the right of the restaurant owner to practice his or her chosen profession and the right of the smoker to smoke.

Three Private Individuals v. Baden-W├╝rttemberg & Berlin [Germany] [July 30, 2008]

A nightclub owner and two small pub owners challenged the constitutionality of the provisions of non-smoking laws in Baden-Württemberg and Berlin. The pub owners contended that the exceptions in the laws for restaurants with several rooms distort competition in favor of large establishments and endanger the economic existence of single-room establishments. The club owner argued that discotheque operators were being treated unfairly compared to restaurant owners because the latter had the option of establishing smoking rooms. The Court ruled against the laws, finding that the challenged provisions violated the complainants' fundamental right of occupational freedom.

Mr. S. v. Federal Republic of Germany [Germany] [February 09, 1998]

A non-smoker challenged a national regulation addressing smoking in public as inadequate and therefore violating his fundamental rights. The Court held that the complaint was unfounded, finding that the legislature acted within its authority by regulating smoke-free places in a broad manner, which allowed for the consideration of public and private interests. Because the legislature did not completely abstain from regulation and also took adequate measures to regulate environments in which individuals cannot easily escape smoke in their surroundings, there existed no constitutional violation of fundamental rights.

Tobacco Company A, et al. v. Federal Republic of Germany [Germany] [January 22, 1997]

Five tobacco companies challenged a tobacco control law that required the companies to print health warnings on tobacco products.  In particular, the cigarette companies claimed that the health warning requirements violated their right to expression by requiring them to publish warnings that they considered misleading, as well as their rights to profession and property. The Second Senate held that the challenge was unfounded, finding that the regulation did not breach the companies' rights to expression because it was sufficiently clear that the health warnings were those of the Federal Government of Germany and not the opinion of the cigarette manufacturers. The Second Senate also found that the challenged law did not violate the companies' rights to profession and property.