Five thousand Peruvian citizens brought action before the Constitutional Court challenging the constitutionality of an article of the tobacco control law that completely prohibits smoking in certain public places, including outdoor areas of educational facilities. They argued that these limits infringed on the right to personal autonomy, right to commerce, and right to economic freedom and that smoking should be allowed in outdoor areas of institutions for higher learning for adults and in special smoking areas. The Court dismissed the plaintiffs' suit and confirmed the constitutionality and legality of the law. The Court held that the law was strictly proportional, placing the right to health above the alleged violated rights, and that the smoking ban was the ideal means to comply with provisions of the WHO Framework Convention on Tobacco Control (WHO FCTC) that require protection from exposure to tobacco smoke.
5000 Citizens v. Article 3 of Law N.º 28705, EXP. N.º 00032-2010-PI/TC, Tribunal Constitucional del Perú [Constitutional Court](2011).
Peru
Jul 19, 2011
Constitutional Court (Tribunal Constitucional del Perú)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Taking into consideration the criteria explained in the preceding legal grounds, meaning, that the State has the duty to protect the right to health at the maximum level possible, that smoking is an epidemic, that rights must be protected through progressive steps, which means that except in highly exceptional circumstances, the legal steps taken to protect health mark a point of no return and that according to Article 3 of the WHO Framework Convention on Tobacco Control, the aim of reducing use and the exposure to tobacco smoke must be achieved ―continually, it is found constitutionally prohibited that in the future legislative steps or those of any other nature be taken that protect in a lesser degree the fundamental right to health in face of the smoking epidemic in comparison with the way current legislation does so."
"Because the WHO Framework Convention on Tobacco Control is a human rights treaty by mandate of Final Provision Four of the Constitution, the State is obligated to interpret Article 7 of the Constitution, which recognized the basic right to health protection,
and Article 9 of the Constitution, which requires designing a pluralistic, decentralized national health policy, according to all the precepts of that Convention, so that according to its Article 3, the State has the obligation to protect the right to health through a pluralistic and decentralized national policy that continually and substantially reduces the prevalence of tobacco use and the exposure to tobacco smoke."
"The WHO Framework Convention on Tobacco Control is a human rights treaty, because although it does not recognize the right to health protection as a ― new right (in the plaintiffs‘ terms), it obliges State Parties clearly and directly to take steps that contribute to optimizing its effectiveness."
"Both the aim of protecting the health of tobacco users themselves and the aim of reducing health costs resulting from the treatment of tobacco-caused illnesses through significantly reducing its use are constitutionally valid. Furthermore, as will be supported below, reducing tobacco use to protect the health of smokers themselves is not only a constitutionally permitted aim, since Peru ratified the WHO Framework Convention on Tobacco Control, it is a constitutionally obligatory aim."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Five thousand Peruvian citizens brought action before the Constitutional Court challenging the constitutionality of an article of the tobacco control law that completely prohibits smoking in certain public places, including outdoor areas of educational facilities. They argued that these limits infringed on the right to personal autonomy, right to commerce, and right to economic freedom and that smoking should be allowed in outdoor areas of institutions for higher learning for adults and in special smoking areas. The Court dismissed the plaintiffs' suit and confirmed the constitutionality and legality of the law. The Court held that the law was strictly proportional, placing the right to health above the alleged violated rights, and that the smoking ban was the ideal means to comply with provisions of the WHO Framework Convention on Tobacco Control (WHO FCTC) that require protection from exposure to tobacco smoke.