British American Tobacco Panama v. Panama
British American Tobacco Panama S.A. et al. s/ nulidad del Decreto Ejecutivo 611 de 2010, Corte Suprema de Justicia - Sala en lo Contencioso Administrativo [Supreme Court of Justice - Administrative Chamber] (2016).
- Aug 3, 2016
- Supreme Court of Justice of Panama - Administrative Chamber
- British American Tobacco Panamá S.A.
- G. & R. Internacional S.A.
- Habanos Panama S. A.
- Obrigada Panama S.A.
- Philip Morris Panama Sociedad en Comandita por Acciones
Defendant Health Ministry
Law No. 13 of January 24, 2008 “Which Adopts Measures to Control Tobacco and its Harmful Effects on Health” Executive Decree No. 611 of June 3, 2010
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
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)
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 Property
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.
Intellectual Property Violation
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.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
Decree No. 611 establishes that Panama's ban on the advertising, promotion and sponsorship of tobacco products includes a ban on tobacco product display at the point of sale. BAT Panama SA and other tobacco companies filed suit requesting an order declaring Decree No. 611 illegal, arguing that it violated the right to property including intellectual property and consumers’ right to access information. The Administrative Chamber of the Supreme Court of Panama upheld the decree finding that there was no violation of trademark rights as trademark registration and use still were allowed. The court also found that consumers’ right to access information was assured through the use of the textual listing of products and their prices and through health warnings on packages. Notably, the court used the FCTC guidelines to interpret FCTC obligations with regard to tobacco advertisement, promotion and sponsorship.