Directorate of CPI of SIC v. Coltabaco S.A.S. et al.
In 2017, the Directorate of Consumer Protection Investigations of the Superintendency of Industry and Commerce (SIC) opened an investigation following a complaint to prompt SIC to stop marketing of IQOS, Philip Morris's heated tobacco product.
SIC dismissed the complaint after taking the following into consideration:
- The Ministry of Health asked for IQOS products to be treated as tobacco products.
- SIC focused on the fact that only the tobacco sticks for heated tobacco products, as opposed to the IQOS device, are mandated to have health warnings.
- According to SIC, IQOS does not fall under the authority of the tobacco control law in Colombia (Law No. 1335).
- IQOS marketing practices have not violated consumer protection regulations in Colombia.
Dir. of CPI of SIC v. Coltabaco S.A.S. et al., 17 -82520- -58-0, Bogotá, D.C. (2019).
Colombia
Dec 27, 2019
Directorate of Consumer Protection Investigations of the Superintendency of Industry and Commerce
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
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.
Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Thus, by virtue of the general principle of law that indicates that where the legislator did not make a distinction, it is not possible for the interpreter to create it, as well as the principle of legality of the faults and sanctions, which has implicit the principle of typicality, in merit of which exists an exclusive attribution by the Congress of the Republic, in its capacity as legislative body, to define clearly and specifically the "act, fact or omission constitutive of the behavior considered as offensive by the legal system, in a way that allows the people to whom the rules are aimed to know in advance to the commission of the implications of its breach" and; since it is not possible to the Superintendency of Industry and Commerce to give a scope different from that prescribed by Law 1335 of 2009, in view of the fact that in sanctioning matters, the description of the conduct that gives rise to the sanction must be precise, clear, and not give rise to doubts, it is clear for this Directorate, that it is not possible to apply Law 1335 of 2009 to the product called IQOS, since it falls outside the scope of competition prescribed by the legislator in the aforementioned normative provision and doing so could lead to the violation of the due process established in subsection 2 of article 29 of the Constitution, which provides that: “No one can be judged except in accordance with the pre-existing laws to the act that is imputed (...)”."
"In that vein, it is necessary to state now that despite the competence assigned to the Directorate of Investigations of Consumer Protection by article 12 numeral 9 of Decree 4886 of 2011, to examine the infractions contained in Law 1335 of 2009 and to apply the sanctions set forth there, in terms of advertising, packaging and prohibition of promotion and sponsorship of tobacco and its derivatives, it is considered by this Directorate that the IQOS device is not included in this prohibition since it does not constitute a tobacco product or derivative of it, according to the definition provided by the Law 1109 of 2006, "by means of which the WHO Framework Convention on Tobacco Control is approved”, which in its article 1 letter f provides the following:
"Article 1
List of expressions used
For the purposes of this Convention:
f) “tobacco products” means products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing...""
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In 2017, the Directorate of Consumer Protection Investigations of the Superintendency of Industry and Commerce (SIC) opened an investigation following a complaint to prompt SIC to stop marketing of IQOS, Philip Morris's heated tobacco product.
SIC dismissed the complaint after taking the following into consideration:
- The Ministry of Health asked for IQOS products to be treated as tobacco products.
- SIC focused on the fact that only the tobacco sticks for heated tobacco products, as opposed to the IQOS device, are mandated to have health warnings.
- According to SIC, IQOS does not fall under the authority of the tobacco control law in Colombia (Law No. 1335).
- IQOS marketing practices have not violated consumer protection regulations in Colombia.