TOBACCO CONTROL LAWS

Dutch Non-Smokers Association CAN v. Netherlands

A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters.  In this decision the Court applied FCTC Article 8 to the Dutch law.  The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception.  The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC.  The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.

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Dutch Assoc. CAN/State of Netherlands, HR, 26 March 2013, Case Number: 200.111.618/01

  • Netherlands
  • Mar 26, 2013
  • Court of Appeal of The Hague
View Case History

Parties

Plaintiff Dutch Non-Smokers Association CAN (Club Active Non-smokers)

Defendant State of the Netherlands (Ministry of Health, Welfare and Sport)

Legislation Cited

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)
WHO FCTC Article 8 Guidelines

Related Documents

Original Dutch Version of Court Ruling Conclusion of Advocate General

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.
Action against Government to Advance the Public Interest
An individual or organization may sue their own government in order to advance or protect the public interest. For example, an NGO may sue the government claiming the government’s weak tobacco control laws violated their constitutional right to health.

Tobacco Control Topics

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

Substantive Issues

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 a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Work
A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Non-Mandatory WHO FCTC Guidelines
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.

Type of Tobacco Product

None

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