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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.
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.
[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.
Jaunait Consulting v. México [Mexico] [July 02, 2019]
The Supreme Court of Justice of the Nation (SCJN) determined that electronic cigarettes cannot be banned under the interpretation of 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 Court found that this interpretation is unconstitutional since (i) the sale of tobacco products is allowed, and (ii) banning non-tobacco products without a proper justification violates the principles of equality, legality, proportionality, and non-discrimination.
This ruling applies only to the plaintiff who was a party to this case, Juanait Consulting. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the such first decision by the First Chamber.
Vapeadores de México v. México [Mexico] [November 15, 2017]
Vapeadores de México asked the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) to whether the import, distribution, and sale of e-cigarettes and e-liquids required the issuance of an authorization or license and/or health permit and what requirements must be met. COFEPRIS responded that the General Law on Tobacco Control does not contemplate that and that the importation and sale of those products are banned under the scope of Article 16(VI), which states: "It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product, that contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products." Unhappy with the response, Vapeadores de México filed an Amparo action alleging violations of the constitutional principles of equality, legality, and non-discrimination.
The Ministers of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) decided in unanimity 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 upheld previous courts' decisions, considering 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 these products in order to protect public health and the environment violates the right to equality and the proportionality principle since, at the same time, the sale of tobacco products is allowed.
This ruling applies only to the plaintiff who was a party to this case, Vapeadores de México. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the second such decision by the Second Chamber.
Sheath v. Whitely [Australia] [April 08, 2014]
The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.
Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.
B v. Waitemata District Health Board [New Zealand] [July 08, 2013]
Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.
The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.
The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.
The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.
Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.
Taylor v. Attorney General & Ors [New Zealand] [July 03, 2013]
This was the second case brought by Taylor, a prisoner, against smoking bans in prisons in New Zealand (see also: Taylor v Dept. of Corrections of New Zealand [20 December 2012]). Following the first case, the New Zealand Parliament enacted the Corrections Amendment Regulations, which declared tobacco and smoking equipment to be unauthorized items forbidden to inmates. The Parliament also amended other Regulations which were found to be inconsistent with the smoking ban in the first case. However, the Parliament did not amend the section of the Smoke-free Environments Act which required prison managers to have written policies regulating smoking in cells, which the judge in the first case found implied that smoking must be permissible (otherwise there would be no need to regulate it). Again, the Court found that although the Smoke-free Environments Act did not confer a right to smoke, it recognized that there was such a right. Further, the ban was inconsistent with the provisions of the Corrections Act requiring sentences to be administered humanely, because it would force some prisoners into nicotine withdrawal. The Court therefore declared the legislation effecting the ban to be unlawful, invalid and of no effect. However, when the Parliament passed the new Regulations, it also included ouster provisions purporting to prevent the law from being declared invalid. The Court did not rule on the effect of the ouster provisions because the plaintiff had not claimed any relief.
Sal's Restaurant, Inc. v. Dep't of Health, Bureau of Health Promotion and Risk Reduction (Pennsylvania) [United States] [April 04, 2013]
A restaurant owner challenged the Pennsylvania Department of Health’s determination that the restaurant did not comply with the requirements for an exception to Pennsylvania’s Clean Indoor Air Act to allow smoking in the bar section of their establishment. The law banned smoking in indoor public places, but allowed certain exceptions. The establishment had a bar area, a dining area and a shared hallway with bathrooms for both areas. The bar area was separated by swinging saloon style doors that did not cover the entire doorway, thus allowing smoke to filter into the shared hallway. The establishment sought an exception to allow smoking in the bar area but the state agency determined that the bar did not meet the enclosed requirement to prevent smoke from getting out of the smoking area. The court held that despite attempts to comply with the requirements, the restaurant still did not fulfill the statute and was not compliant by the statutorily required time. The court affirmed the state agency’s ruling denying the application for exception to the non-smoking law.