British American Tobacco Panama v. Panama

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.

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).

  • Panama
  • Aug 3, 2016
  • Supreme Court of Justice of Panama - Administrative Chamber

Parties

Plaintiff

  • 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

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Law No. 45 of October 31, 2007 "Which dictates regulations on consumer protection and defense of competition and another provision" provides in its article 36, numeral 1, that the supplier is obliged to inform clearly and truthfully to the consumer about the characteristics of the product or service, which must be consigned on the packaging, container, vessel or the product label on the shelf of the commercial establishment. The legal norm also contemplates that said information must be on the label and in the Spanish language when it comes to medicines, agrochemicals and toxic products and food products that require specific warnings or precautions that represent a danger to human health, that is, derived products of tobacco. Under this framework, the Court is of the opinion that, although it is true that the display of tobacco products and their derivatives is prohibited in dispensers, stands and any other shelves located in the points of sale, by means of Executive Decree No. 611 of June 3, 2010, however, the right of consumers to information is not violated because when he is going to purchase the tobacco product, he gets its characteristics before consuming it, that is, he knows in advance its nature, composition, content, weight, origin, expiration date, toxicity, and warnings."
"Now, the marketing and promotion of tobacco and its derivative products may increase their sales, however, it is noted that in parallel it would increase the death of people for such consumption, which is scientifically proven by the World Health Organization (WHO), hence, as we have noted previously, in May 2003 the World Health Assembly unanimously adopted the WHO Framework Convention on Tobacco Control, and the Republic of Panama was one of the first countries to ratify it through Law 40 of July 7, 2004."
"Given these facts, the Chamber is of the opinion that when Article 14 of Law 13 of January 2008, on the total prohibition of advertising, promotion and sponsorship of tobacco products, was regulated, on a first time, by Executive Decree No. 230 of May 6, 2008, the placement of derivative products in the dispensers and shelves of the points of sale, with their respective health warnings and pictograms, was allowed, adopting at that time the measures contemplated in the WHO Framework Convention on Tobacco Control, where the display and visibility of tobacco products at points of sale was not included. Subsequently, in order to comply with the new guidelines assumed in said Convention approved in Durban, South Africa, on November 17-22, 2008, the Panamanian State amended Executive Decree No. 230 of May 6, 2008, and issued Decree No. 611 of June 3, 2010, challenged regulation, prohibiting the display of tobacco products and their derivatives in dispensers, stands and any other shelf located at the points of sale; modification that has not exceeded the limits of regulatory power because it was carried out within the spirit of the Formal Law, Law No. 13 of January 24, 2008, since, in Article 14, it establishes a total prohibition of advertising, promotion and Unofficial Translation sponsorship of tobacco products, and the guidelines of the WHO Framework Convention on Tobacco Control stated that the display of tobacco products at points of sale is itself a form of advertising and promotion."