A public health organization (CAN) challenged a provision of the Tobacco and Smoking Products Act that permitted the establishment of smoking rooms in catering facilities. CAN argued that Article 8(2) of the WHO Framework Convention on Tobacco Control (FCTC) has direct effect and, therefore, this exception to the smoking ban should be considered non-binding because it conflicts with a higher law - the FCTC. The District Court ruled that FCTC Article 8(2) did not have direct effect and, therefore, could not be invoked in this case. CAN appealed this ruling.
On appeal, the Court concluded that FCTC Article 8(2) has direct effect and rejected the State's argument that the exception in the law is intended as a transitional measure. The Court stipulated that the FCTC Article 8 Guidelines "must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC." Taking the Guidelines into account, the Court concluded that it is clear that separate smoking rooms "do not provide adequate protection against exposure to tobacco smoke" and, therefore, the exemption for smoking rooms in catering establishments is "contrary to Article 8(2) of the WHO FCTC."
Dutch Non-Smokers Association CAN (Club of Active Non-Smokers)/The State of the Netherlands (Department of Public Health, Welfare and Sport) [Hof][Hague Court of Appeal], 13 February 2018, Case Number: 200.205.667/01
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.
Measures to reduce or eliminate exposure to tobacco smoke.
(See FCTC Art. 8)
Substantive Issues
None
Type of Tobacco Product
None
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.
"It is clear from the aforementioned that the parties to the WHO FCTC have reached agreement ('consensus') on the way in which Article 8(2) must be interpreted and implemented if parties are to comply with their treaty obligations. The fact that parties have presented this agreement under the term 'Guidelines' and that the Guidelines are not in themselves legally binding or decisive for the interpretation of Article 8 paragraph 2 of the WHO FCTC, does not detract from the fact that these Guidelines must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC..."
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.
A public health organization (CAN) challenged a provision of the Tobacco and Smoking Products Act that permitted the establishment of smoking rooms in catering facilities. CAN argued that Article 8(2) of the WHO Framework Convention on Tobacco Control (FCTC) has direct effect and, therefore, this exception to the smoking ban should be considered non-binding because it conflicts with a higher law - the FCTC. The District Court ruled that FCTC Article 8(2) did not have direct effect and, therefore, could not be invoked in this case. CAN appealed this ruling.
On appeal, the Court concluded that FCTC Article 8(2) has direct effect and rejected the State's argument that the exception in the law is intended as a transitional measure. The Court stipulated that the FCTC Article 8 Guidelines "must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC." Taking the Guidelines into account, the Court concluded that it is clear that separate smoking rooms "do not provide adequate protection against exposure to tobacco smoke" and, therefore, the exemption for smoking rooms in catering establishments is "contrary to Article 8(2) of the WHO FCTC."