British American Tobacco of Peru S.A.C. v. Congress of the Republic
BRITISH AMERICAN TOBACCO DEL PERÚ S.A.C. v CONGRESO DE LA REPÚBLICA, Expediente: 22881, CORTE SUPERIOR DE JUSTICIA DE LIMA, PRIMERA SALA CIVIL DE LIMA
- Jul 22, 2015
- CORTE SUPERIOR DE JUSTICIA DE LIMA, PRIMERA SALA CIVIL DE LIMA
Plaintiff BRITISH AMERICAN TOBACCO DEL PERÚ S.A.C.
Defendant CONGRESO DE LA REPÚBLICA DEL PERÚ
Law No. 28705, General Law for the Prevention and Control of Tobacco Use Risks Law No. 29517, Law Which Amends Law No. 28705, General Law for the Prevention and Control of the Risks of Tobacco Use in Order to Adapt to the WHO Framework Convention On Tobacco Control
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
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)
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 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.
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Type of Tobacco Product
British American Tobacco of Peru sued the Congress of the Republic, challenging the prohibition on sales of tobacco packages containing less than 10 cigarettes alleging that such a prohibition violates the freedom of enterprise and industry. This decision, from a Civil Chamber, rejects British American Tobacco’s appeal of the initial decision which had rejected the lawsuit. The Chamber agrees with the first decision and finds that the measures comply with the proportionality principle.