TOBACCO CONTROL LAWS

De Russis Vito Nicola, et al. v. U.S.L. RM/4, et al.

During an action seeking damages for harm caused by passive smoking in a hospital, post office, and restaurant, the Magistrate of Rome petitioned the Constitutional Court to determine whether a tobacco control law and the opinion of the Council of State violated the Constitution insofar as the law or opinion clarifying the law:  1) prohibited smoking within wards of hospitals but failed to address smoking elsewhere within hospitals; 2) prohibited smoking in educational facilities and places frequented by transport services but allowed smoking in public postal service facilities; 3) failed to ban smoking in restaurants; and 4) limited the applicability of the law to cases in which several people meet in a public place for a fixed time and a permitted purpose.  The Court held that the constitutional question was inadmissible, finding that the question was irrelevant to the underlying civil suit because the plaintiffs' claim for damages could be derived only from the Constitution's provision protecting the right to health in conjunction with the obligation to pay for damages under the Civil Code.  The Court also found the constitutional question to be irrelevant because, were the court to grant the petitioner's request, the defendants still could not be held liable for failing to perform a legal duty that did not exist or was not knowable at the time of the alleged infraction.

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De Russis Vito Nicola, et al. v. U.S.L. RM/4, et al., Judgment 202/1991, G. U. 15/05/1991, La Corte Costituzionale [Constitutional Court of Italy] (1991).

  • Italy
  • May 7, 1991
  • Constitutional Court of Italy (La Corte Costituzionale)

Parties

Plaintiff

  • Francesco Spiga
  • Vito De Russis

Defendant

  • Others
  • U.S.L. RM/4

Legislation Cited

Law No. 584 of November 11, 1975, Ban on smoking in determined sites and on public means of transport (as amended)

International/Regional Instruments Cited

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)

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.
Personal Injury
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)
Liability
Measures dealing with criminal and civil liability, including compensation. (See FCTC Art. 19)

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 Freedom of Association
Connected to the right to create organizations, e.g., labor unions.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
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.

Type of Tobacco Product

None

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