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FIC Argentina v. Buenos Aires City Government [Argentina] [August 15, 2014]
A tobacco control NGO sued the Buenos Aires city government arguing that the lack of implementation of the local tobacco control law, with regards to smoke-free environments, violated the right to health. Furthermore, considering the violations of the law were higher in places like bars and night clubs, the NGO argued that workers in those places had lower standards of protection of their right to health. The judge rejected the lawsuit considering there was no illegal or arbitrary act from the local government. In addition, the judge stated that courts should not replace political decisions.
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.”
Dutch Association of CAN v. Netherlands [Netherlands] [March 26, 2013]
A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters. In this decision the Court applied FCTC Article 8 to the Dutch law. The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception. The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC. The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.
Sinditabaco v. ANVISA [Brazil] [December 17, 2012]
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.
Judicial Review of Law No. 36 of 2009, Ruling in Case No. 24 [Indonesia] [September 05, 2012]
Officials from a local Indonesian farming administration and their representative farmers challenged the constitutionality of Article 113 of Indonesia’s Health law. The farmers claimed the law excluded any beneficial uses for tobacco and thus severely damaged their livelihoods as tobacco farmers. The court accepted the arguments and found that tobacco also has other beneficial uses despite its dangers to human health. The court granted the petition holding parts of Article 113 unconstitutional and suggesting a changing of the wording to embody the court’s ruling.
Judicial Review of Law No. 36 of 2009, Ruling in Case No. 66 [Indonesia] [September 05, 2012]
Petitioners, Indonesian tobacco farmers and workers in the tobacco industry, filed a constitutional challenge to Indonesia’s Health law that regulated the use of tobacco. After establishing the right of the petitioners to challenge the law, the court looked at previous challenges to the same law. The court decided that petitioners’ challenge was close enough to previous, already decided challenges, to preclude this case and rejected the petition.
Judicial Review of Law No. 36 of 2009, Ruling in Case No. 57 [Indonesia] [April 09, 2012]
Petitioners, Indonesian smokers, challenged the constitutionality of Indonesia’s Health law that sought to restrict smoking in work and public places. The law sought to create no smoking and designated smoking areas to combat the problem of second-hand smoke. The petitioners specifically challenged the words “can” and “may” in relation to the establishment of designated smoking areas in Article 115 of the law. The court granted the petitioners request and held that parts of Article 115 violated the constitution of Indonesia. The court held these parts would no longer have legal force.
Judicial Review of Article 113 of Law No. 36 of 2009, Ruling in Case No. 19 [Indonesia] [November 01, 2011]
Petitioner, a representative from a tobacco growing region of Indonesia, challenged the portions of the 2009 Health Law that deal with addictive substances, including tobacco products. Petitioner alleged that the law caused financial losses and alleged violation of the constitutional rights of tobacco farmers, clove farmers, cigarette factory workers and other concerned parties. The Court rejected the petition in its entirety, ruling that tobacco was addictive and properly included within the law. They held that to treat it differently from other addictive substances would also result in impermissible legal uncertainty. Furthermore, they rejected petitioners claims that the regulation of tobacco as an addictive substance violated the right to work by harming the tobacco production industry. The decision in this case is final; no further appeals are permitted.
Judicial Review of Articles 113, 114 and 199 of Law No. 36 of 2009, Ruling in Case 34 [Indonesia] [October 18, 2011]
Several petitioners who farmed tobacco or otherwise were employed by or represented the Indonesian domestic tobacco industry argued that provisions of the Health Law addressing tobacco products would cause a decrease in production which would infringe on their right to work. Petitioners also challenged that tobacco was unfairly targeted as opposed to other "similar" addictive products, such as food, coffee or sports drinks. The court examined the constitutional issue of "whether the obligation inclusion of health warnings on cigarettes is discriminatory, does not guarantee a decent living, and not provide a fair legal certainty." The Court found that the law was compatible with the petitioner's right to work, because they would still be able to continue their trade and that the right to health took priority over the other less definite constitutional rights asserted by petitioners. Upholding the graphical warning requirement, the Court stated that graphical warnings "will further ensure the fulfillment constitutional rights of citizens of Indonesia, especially the consumer and/ or potential consumers of cigarettes to obtain information about the dangers of smoking, as consumers and / or prospective customers."
Flemish Anti-Cancer League, et al. v. Belgium Council of Ministers [Belgium] [March 15, 2011]
Applicants filed an action for annulment of Belgium's tobacco control legislation. The Court struck down exemptions to the law that permitted smoking in certain establishments whose principal activity was to provide drinks on site and wherein only pre-packaged food was served. The Court found that these exceptions violated the Belgium Constitution, the Revised European Social Charter, and the European Convention on Human Rights, including the rights to equality before the law, non-discrimination, respect for private and family life, dignity, safe and healthy working conditions, and protection of health. The Court stressed the need to consider the protection of health in combination with Article 8 of the Framework Convention on Tobacco Control (FCTC) when addressing tobacco control legislation. According to the Court, the exposure to tobacco smoke could not be reasonably justified based on whether and what type of food was for purchase. The additional challenge to provisions of the legislation that allowed for designated smoking rooms was unsuccessful as the Court would not find that smoking rooms amounted to a violation of any rights.