British American Tobacco Colombia v. Ministry of Health

British American Tobacco (BAT) Colombia requested that the State Council annul a Ministry of Health administrative decision that did not approve the use of expressions “Click & On,” “Click & Roll,” “Krystal Frost,” “Filter Kings,” and “Frozen Nights” on tobacco products packages.  The Ministry’s administrative decision considered such expressions a form of deceptive advertising and thus prohibited under Law 1335. A lower administrative court rejected BAT Colombia’s request, and the State Council, the highest judicial body for administrative matters, upheld the lower court’s decision.  The State Council found the expressions to be deceptive advertising and that economic freedoms must be restricted for the protection of the right to health, the right to life and the public interest.  Notably and responding to BAT’s allegation, the State Council found no expropriation of intellectual property.  The Council observed that intellectual property rights need to be exercised in conformity to human rights obligations. Moreover, responding to the argument that similar expressions had been approved in the past, the Council found that there was no violation of good faith and noted that tobacco control measures are expected to increase in light of further evidence.

British American Tobacco Colombia v. Ministry of Health, Expediente núm. 2012-00607-01, Consejo de Estado [State Council] (2015).

  • Colombia
  • Sep 24, 2015
  • State Council
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Parties

Plaintiff British American Tobacco Colombia S.A.S.

Defendant Ministry of Health

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"As stated by the defendant, the guarantee of legitimate expectations in the actions of individuals and the administration does not impose on the latter the impossibility of adopting changes in the legislation or in the strategies for the implementation of public policies that prove to be a better adaptation to constitutional and legal texts; then the accused official communications, which were the result of a prior control by the competent entity whose duty is to annually verify and control the warning phrases, legends and pictograms of the packaging and labels, in order to adapt them to current regulations on the matter, are not surprising or excessive and are backed by laws that have been declared in accordance to the Constitution. The mentioned annual verification or prior control indicates that the authorization issued by the Ministry is not indefinite, does not generate rights for subsequent periods, since its validity is limited in time, as was appropriately observed in the appealed judgment; it is therefore not correct to dispute the challenged acts, arguing, as the plaintiff does, that it was previously authorized to include on the labels and packaging the expressions that are now prohibited through the communications whose invalidity is requested."
"So, as stated by the Ministry of Health and Social Protection in the challenged communication no.2100000-7742 of February 1, 2012, although the trademark expressions “Click & On”, Click & Roll", "convertibles” and “ON” have trademark registrations issued by the Superintendency of Industry and Commerce, the Laws 1109 of 2006 that approved the Framework Convention for Tobacco Control, declared enforceable by the Constitutional Court through judgment C-665 of 2007, and 1335 of 2009, were in force already, as well as Resolution no. 3961 of 2009, which means that the registrations were granted when there was already a total prohibition of advertising, promotion and sponsorship of tobacco products, then the plaintiff, as expressed throughout these considerations, cannot use them on the labels and cigarette packaging, in accordance with the provisions of the challenged acts. On the other hand, as stated by the entity in the same communication, the brands "PALL MALL KRYSTAL FROST" (mixed and nominative) and "KOOL FROZEN NIGHTS" (nominative) have trademark registrations issued in a period prior to the entry into validity of the aforementioned subsequent provisions, which in accordance with the above, do not prevail over the fundamental right to health, then the non-authorized expressions by the contested acts cannot be used by the plaintiff company."
"When examining the expressions that were prohibited in the accused acts, namely, "Click & On", "Click & Roll", "Krystal Frost", "Filter Kings" and "Frozen Nights", the Chamber, taking into account what was stated in the act that resolved the appeal in the sense that "the examination requires a confrontation with linguistic, sociological, mentality and idiosyncrasy aspects that determine the behavior in the individual and stimulate a drive towards consumption", considers that these are clear examples of prohibited advertising messages, since both in their English language and in their translation into Spanish, they are persuasive, they encourage the public to consume cigarettes, reason enough for the Ministry of Health and Social Protection to have prohibited their printing on definitive packaging and labeling, since they do express dominance, enrollment in a status or letting oneself to be absorbed, electronic operation and feeling sensations of freshness and pleasure; there is no clarity in the information and therefore they are misleading, and the effects and risks of their consumption are not being considered."
"So, in other words, the Chamber considers that the packaging and labels of tobacco and its derivatives should not be ambiguous, therefore, as provided by the law, before the products are produced and marketed, companies must send to the Ministry of Health and Social Protection in advance a simulation of these, for a prior control, precisely to prevent that in a subsequent control carried out by the competent entities it is established that there are elements that constitute advertising that encourages and stimulates their consumption or that are misleading, subsequently initiating an administrative procedure that could culminate in a sanction. It is important to bear in mind, again, that the cigarette package constitutes a fundamental instrument for the promotion of the product, which constitutes the only means of advertising, hence the importance of its rigorous examination."