TOBACCO CONTROL LAWS

Flavour of America S.A. v. Paraguay

The petitioners filed an appeal for legal protection, challenging the constitutionality of two administrative decrees that implemented Article 8 and Article 11 of the FCTC. The Court held that the Executive Branch’s decrees established duties, obligations, and restrictions not allowed under the National Constitution, the law ratifying the FCTC, or the Sanitary Code. According to the Court, the FCTC contained only “programmatic” clauses and not “self-enforcing” provisions. As a result, in the case of a framework convention, the law that approves it must necessarily be regulated by another law enacted by Congress. That Law can then be regulated by a decree issued by the Executive Branch. The Court stated that there is no express legislative delegation that enables the Executive Branch to regulate Articles 8 and 11 of the FCTC by decree, especially when there are already prior and subsequent laws entirely in force.

Flavour of America S.A v. Paraguay, Acuerdo y Sentencia 529, Corte Suprema de Justicia de Paraguay [Supreme Court of Paraguay](2018)

  • Paraguay
  • Jul 12, 2018
  • Corte Suprema de Justicia, sala constitucional (Supreme Court of Justice, Constitutional Chamber)
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Parties

Plaintiff Flavour of America S.A.

Defendant Executive Branch

Legislation Cited

Decree No. 4174

Decree No. 4106

Law No. 2969

Constitution of Paraguay

Sanitary Code

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

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)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)

Substantive Issues

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 Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
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.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

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