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Argument: Right to Health

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Search Results Results 1-10 of 106

Tabacalera Sarandí S.A. v. Argentine Tax Authority (AFIP) [Argentina] [May 13, 2021]

Tabacalera Sarandí S.A. had obtained a preliminary injunction to suspend the application of the minimum amount of a tax established for the commercialization of tobacco. Thus, the company could apply the tax rate (70%) on the retail price without considering the minimum amount. The company argued that this minimum put it at a disadvantage with other multi-national tobacco companies. The Argentine Tax Authority appealed the decision, saying that the ruling affected the public interest and the extra-fiscal purpose of the tax, which is the protection of public health. The Supreme Court ruled that the tobacco company had not sufficiently demonstrated its injury and did not prove the requirements to be granted with the injunction. Thus, the Court revoked the injunction.

Baldassare v. British American Tobacco Argentina [Argentina] [December 28, 2020]

The plaintiff brought an action against British American Tobacco (BAT) Argentina, seeking damages for all the health problems allegedly resulting from his use of tobacco products. In particular, he sought compensation for a heart attack he suffered. He claimed that when he began smoking, the advertisements were misleading and did not warn him about the possible health problems caused by the substances in cigarettes. The judge determined that: (i) the case was not time-barred, (ii) tobacco consumption was probably one of the reasons for the heart attack, and (iii) the victim did not assume the risks of smoking because he was not sufficiently well informed, as required by the country's consumer protection law, and because he was not free to direct his actions due to the addiction. The lower court determined that BAT had to pay compensatory damages and also a fine as punitive damages.

Public Ministry of Rio de Janeiro v. Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli [Brazil] [November 02, 2020]

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.

Confederação Nacional do Turismo et. Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná [Brazil] [August 24, 2020]

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.

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná [Brazil] [August 24, 2020]

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.

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Rio de Janeiro [Brazil] [December 20, 2019]

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.

Confederação Nacional do Turismo v. São Paulo [Brazil] [December 03, 2019]

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.

Nicolás Parra Castro v. Superintendency of Industry and Commerce (Second Instance) [Colombia] [November 14, 2019]

The plaintiff, a member of “Educar Consumidores” NGO, filed a lawsuit to order the Superintendency of Industry and Commerce (SIC) to inspect, monitor, and control the advertising and promotion of tobacco products and their derivatives. Specifically, the plaintiff requested that the judges order SIC to demand that Coltabaco and Philip Morris Colombia withdraw all advertising of IQOS devices. In the first instance, the Court denied the claim because the norms invoked by the plaintiff did not contain an imperative and enforceable mandate against the defendant. On appeal, the Court confirmed the previous decision since it also understood that the cited norms -although they established the general prohibition on the advertising and promotion of tobacco products and their derivatives - did not create a clear and concrete obligation that corresponded specifically to SIC.

[Unnamed Actor] v. México [Mexico] [October 02, 2019]

An agent from the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) confiscated electronic cigarettes from the plaintiff under Article 16(VI) of the General Law on Tobacco Control, which states: "It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products." The plaintiff filed an Amparo action challenging the interpretation of Article 16. The Ministers of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) decided unanimously that it is unconstitutional to ban the sale of electronic cigarettes while, on the other hand, the sale of tobacco products is allowed in Mexico. The Court considered that even though the law seeks to protect the right to health, this cannot be done at the cost of an excessive affectation of other goods and rights. The Ministers agreed that prohibiting the sale of electronic cigarettes while the sale of tobacco products is allowed violates the right to equality, and that the measure is not the least restrictive to guarantee other constitutionally protected rights. As a result, they revoked the order from COFEPRIS and ordered the return of the seized goods to the plaintiff.

This ruling applies only to the plaintiff who was a party to this case. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the third such decision by the Second Chamber.

Nicolás Parra Castro v. Superintendency of Industry and Commerce (First Instance) [Colombia] [September 25, 2019]

The plaintiff, a member of “Educar Consumidores” NGO, filed a lawsuit to order the Superintendency of Industry and Commerce (SIC) to inspect, monitor, and control the advertising and promotion of tobacco products and their derivatives. Specifically, the plaintiff requested that the judges order SIC to demand that Coltabaco and Philip Morris Colombia withdraw all advertising of IQOS devices. In this case, the first instance, the Court denied the claim because the norms invoked by the plaintiff did not contain an imperative and enforceable mandate against the defendant.