TOBACCO CONTROL LAWS

Challenge of Law on Tobacco Control and Alcoholism

Sixty members of Parliament requested that the Constitutional Council strike down two provisions of the alcohol and tobacco control legislation, which concerned a prohibition on tobacco advertisements. The Council struck down the two provisions, finding that, while measures taken to protect the population's health are constitutionally protected in the preamble of the Constitution, the measures at issue were not properly balanced against the industry's right to property and freedom of enterprise as protected under the Declaration of the Rights of Man and of the Citizen. The Council stated that the legislation amounted to an "arbitrary and abusive" restriction of free enterprise and imposed excessive limitations on the right to property when assessed against the legitimate aim of protecting health.

Décision n° 90−283, Conseil Constitutionnel (1991).

  • France
  • Jan 8, 1991
  • Conseil Constitutionnel (Constitutional Council)
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Parties

Plaintiff 60 members of the opposition

Defendant

Legislation Cited

Related Documents

None

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)

Substantive Issues

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.
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.

Type of Tobacco Product

None

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