TOBACCO CONTROL LAWS

Philip Morris Brasil SA v. Associação de Defesa da Saúde do Fumante (ADESF)

The Association for the Defense of the Health of Smokers (ADESF) brought an action against Philip Morris, a tobacco company, for failing to warn consumers of the State of State of São Paulo about the health risks of consuming tobacco products in the packaging and advertisement of the company's products. The lower court ordered the company to pay damages to all tobacco consumers in São Paulo for failure to warn them of the risk of addiction to tobacco consumption. The tobacco company appealed the decision and the higher court reversed the lower court's decision in favor of the tobacco company, holding that there had been a violation of due process of law, as the tobacco company had not been given the opportunity to present evidence proving that tobacco does not directly cause health problems.

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Philip Morris Brasil SA v. Associação de Defesa da Saúde do Fumante (ADESF), No. 479.713-4/8-00, Sétima Câmara de Direito Privado do Tribunal de Justiça do Estado de São Paulo [7th Chamber of Private Law of the Court of Justice of the State of São Paulo] (2008).

  • Brazil
  • Nov 12, 2008
  • 7th Chamber of Private Law of the Court of Justice of the State of São Paulo (Sétima Câmara de Direito Privado do Tribunal de Justiça do Estado de São Paulo)

Parties

Plaintiff Philip Morris Brasil SA

Defendant Associação de Defesa da Saúde do Fumante (ADESF)

Legislation Cited

Related Documents

None

Type of Litigation

Personal Injury
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.

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 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 Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
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.

Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.

Type of Tobacco Product

None

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