TOBACCO CONTROL LAWS

ARDTP v. Panama

The Association for Tobacco Harm Reduction of Panama (Asociación de Reducción de Daños por Tabaquismo de Panamá - ARDTP) challenged the constitutionality of Law No. 315 of June 2022, which prohibited the use, importation, and commercialization of electronic nicotine delivery systems, electronic cigarettes, vaporizers, heated tobacco products and other similar devices, with or without nicotine, in Panama. The plaintiff argued that the law was passed in violation of legislative process rules and the Constitution. Specifically, they claimed it lacked the required two-thirds vote after the Executive raised objections and was improperly reintroduced for debate after its deadline had passed. ARDTP also raised substantive concerns, alleging that the law violated rights to information, free trade, and non-discrimination by banning “potentially less harmful alternatives” to conventional cigarettes.

The Supreme Court of Panama agreed with the plaintiff on procedural grounds, ruling that the law was unconstitutional due to the lack of a qualified majority vote following the Executive’s objection. The Court emphasized that it did not evaluate the substantive merits of the law, such as the public health arguments, since the procedural flaw alone invalidated the legislation.

ARDTP v Panama, Supreme Court of Justice of Panama, Case No. 858772023 (2024)

  • Panama
  • Apr 30, 2024
  • Supreme Court of Justice of Panama
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Parties

Plaintiff Association for Tobacco Harm Reduction of Panama (Asociación de Reducción de Daños por Tabaquismo de Panamá - ARDTP)

Defendant Republic of Panama

Legislation Cited

Law No. 315 of June 30, 2022

Organic Regulations of the Internal Regime of the National Assembly

Political Constitution

Judicial Code

International/Regional Instruments Cited

General Agreement on Tariffs and Trade 1994 (GATT)

Related Documents

Decision in Spanish

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.

Tobacco Control Topics

None

Substantive Issues

Right to Commerce
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.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
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.
Trade Violation
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.

Type of Tobacco Product

Heated tobacco products (HTPs)

Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.

E-cigarettes and other ENDS products
Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.

“To conclude, free competition materializes when in the market there is free competition between, on the one hand, suppliers of similar products and, on the other hand, consumers whose purchasing decisions are made freely, without the intervention of forces exogenous to the market itself, and based on sufficient information on the characteristics of the products. [8] In this sense, any restrictive measure for the commercialization of a product (electronic devices with or without nicotine), which is analogous to another product (traditional cigarettes) would establish an advantageous and different treatment to a defined group of traders, thus violating the right to equality and free competition.”

“This High Court notes that part of the argument used by the plaintiff to request the unconstitutionality of Law No. 315 of June 30, 2022, rests on the analysis of whether it is harmful to limit smokers' access to alternatives with “lesser” risks than the traditional cigarette. This would lead to a paradox, having to decide which is less harmful: the conventional cigarette or electronic devices with or without nicotine. In other words, the controversial issue is an attempt to obtain a validating statement about the two activities that are harmful to health. On the other hand, we would have to try to address and contrast two (2) protected legal rights that are in conflict: health and commerce. In this sense and for the reasons previously stated, we could not analyze the present action based on which activity is better for the health of the citizens. Now, in no way do we want it to be interpreted that the Plenary of the Supreme Court of Justice has adopted a position that endorses the consumption or commercialization of these electronic devices; we simply cannot issue a scientific opinion.”

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