TOBACCO CONTROL LAWS

Agência Nacional de Vigilância Sanitária (ANVISA) v. Souza Cruz S/A

A tobacco company challenged a resolution that mandated all tobacco packaging and advertising warn consumers of the health risks associated with smoking.  A lower court suspended implementation of the judgment until final resolution of the case.  The tobacco company alleged that the images it was required to place on its packages and advertisements were shocking and unrealistic and that the implementing agency, the National Health Surveillance Agency (Agência Nacional de Vigilância Sanitária (ANVISA), exceeded its powers by issuing the resolution. ANVISA filed an interlocutory appeal.  The higher court decided in favor of ANVISA and overruled the decision of the lower court to allow the company to refrain from having to place warnings on the packaging and advertisement of its products.

Agência Nacional de Vigilância Sanitária (ANVISA) v. Souza Cruz S/A, 2009.0.01.004853-3, Tribunal Regional Federal da 2a Regiao [Regional Federal Court of the 2nd Region] (2008).

  • Brazil
  • Jun 17, 2009
  • Regional Federal Court of the 2nd Region (Tribunal Regional Federal da 2a Regiao)
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Parties

Plaintiff Agencia Nacional de Vigilancia Sanitaria (ANVISA)

Defendant Souza Cruz, S/A

Legislation Cited

Consumer's Defense Code (Codigo De Defensa do Consumidor)

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

Related Documents

Decision in Portuguese

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
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.
Government Enforcement Action
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.

Tobacco Control Topics

Packaging and Labeling Measures
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)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Health
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.
Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Right to Life
A violation of the right to not be killed by another person. Arguments may also be similar or tied to right to health arguments.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Self-Determination
Smokers’ rights groups may claim that governments interfere with consumers’ freedom of choice when they regulate tobacco use.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Consumer Protection Violation

Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.

Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

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