Challenge of Law on Tobacco Control and Alcoholism
Sixty members of Parliament requested that the Constitutional Council strike down two provisions of the alcohol and tobacco control legislation, which concerned a prohibition on tobacco advertisements. The Council struck down the two provisions, finding that, while measures taken to protect the population's health are constitutionally protected in the preamble of the Constitution, the measures at issue were not properly balanced against the industry's right to property and freedom of enterprise as protected under the Declaration of the Rights of Man and of the Citizen. The Council stated that the legislation amounted to an "arbitrary and abusive" restriction of free enterprise and imposed excessive limitations on the right to property when assessed against the legitimate aim of protecting 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.
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.
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.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Sixty members of Parliament requested that the Constitutional Council strike down two provisions of the alcohol and tobacco control legislation, which concerned a prohibition on tobacco advertisements. The Council struck down the two provisions, finding that, while measures taken to protect the population's health are constitutionally protected in the preamble of the Constitution, the measures at issue were not properly balanced against the industry's right to property and freedom of enterprise as protected under the Declaration of the Rights of Man and of the Citizen. The Council stated that the legislation amounted to an "arbitrary and abusive" restriction of free enterprise and imposed excessive limitations on the right to property when assessed against the legitimate aim of protecting health.