Abal Hermanos S.A., a PMI affiliate, challenged the constitutionality of Law No. 18256 arguing that it established an illegal delegation of powers to the Ministry of Health, which were used to unreasonably extend the health warnings to 80% of the principal display areas. According to the plaintiff, the health warning requirement was a violation of the right to property, including intellectual property. The Supreme Court rejected the challenge finding that the law was constitutional and that there was not illegal delegation but just a need to complement the law with the necessary regulations. The Supreme Court finds relevant that the challenged law is based in the FCTC, an international commitment undertaken by Uruguay.
Abal Hermanos, S.A. v. Uruguay, Sentencia No. 1713, Suprema Corte de Justicia [Supreme Court] (2010).
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.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
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"From the mere reading of the contested provisions, it can be seen that the Parliament did not delegate competence, but, on the contrary, following the anti-smoking legislation adopted internationally by the country, it devoted itself to the issuance of the relevant regulations at the national level. In the case of art. 9 of Law No. 18,256, contrary to what the plaintiff understands, it does not delegate to the Executive Power a discretionary power to impose restrictions above that minimum, but rather imposes on the tobacco company the obligation that the external labeling of the packages includes a warning that occupies "at least 50% of the total main exposed surfaces". As the representatives of the Legislative Power argued, the text "at least" of the legal norm should be understood in the sense that the health warning could occupy more space - if the tobacco company wanted it - but never less than the minimum set at 50%.Likewise, it arises from the text that the only thing that the legal norm leaves in the sphere of the Executive Power (Ministry of Public Health) is to control -for the purposes of its approval- that the warnings and messages are clear, visible, legible and occupy at least 50% (fifty percent) of the total main exposed surfaces, as well as the periodic modification of the aforementioned warnings, an aspect that clearly refers to the message and not to the size of the warnings. Consequently, since the minimum limit of warnings to be approved by the Ministry of Public Health is determined by the Law, and by leaving to regulation only aspects that have to do with their execution, the principles
of legality and non-delegability cannot be considered violated."
"From the outset, it is necessary to bear in mind that the approval of Law No.18. 256 has its rationale in the development of a health policy carried out by the State, intensifying the campaign against smoking, and recognizes its immediate legal antecedent in the enactment of Law No. 17. 793, which approved the WHO Framework Convention on Tobacco Control (FCTC), adopted by the 56th World Health Assembly on May 21, 2003, which instructed on effective measures so that the legend about health warnings, describing the harmful effect of the tobacco use, appears in all packages. From article 11 of that agreement emerge the main features provided by the legislator in the challenged legal norms."
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.
Abal Hermanos S.A., a PMI affiliate, challenged the constitutionality of Law No. 18256 arguing that it established an illegal delegation of powers to the Ministry of Health, which were used to unreasonably extend the health warnings to 80% of the principal display areas. According to the plaintiff, the health warning requirement was a violation of the right to property, including intellectual property. The Supreme Court rejected the challenge finding that the law was constitutional and that there was not illegal delegation but just a need to complement the law with the necessary regulations. The Supreme Court finds relevant that the challenged law is based in the FCTC, an international commitment undertaken by Uruguay.