TOBACCO CONTROL LAWS

Confederação Nacional do Turismo v. São Paulo

The National Confederation of Tourism filed a lawsuit against a São Paulo (state-level) tobacco control law regulating smoke-free places. The judge considered that the action was impaired because, after the claim was filed, a federal law was enacted which regulated smoke-free places in a more comprehensive manner. The newly enacted federal law banned smoking lounges, which the challenged state law had already done.

Confederação Nacional do Turismo v. Estado De São Paulo, Ação Direta de Inconstitucionalidade 4.249, Supremo Tribunal Federal [Federal Supreme Court] (2019).

  • Brazil
  • Dec 3, 2019
  • Supremo Tribunal Federal (Federal Supreme Court)
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Parties

Plaintiff Confederação Nacional do Turismo - CNTUR

Defendant

  • Assembleia Legislativa do Estado de São Paulo (Legislative Assembly of the State of São Paulo)
  • Governador do Estado de São Paulo (Governor of the State of São Paulo)

Legislation Cited

Law No. 9.294 (as amended)

Law No. 12.546 of December 14, 2011

Constitution of Brazil

Law No. 13.541 (state law)

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

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

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 a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

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