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).
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 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.
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.
Type of Tobacco Product
None
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.
"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."
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.
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.