TOBACCO CONTROL LAWS

Gonçalves v. Souza Cruz S/A

The plaintiff, Cleomar Teresinha, brought an action against Souza Cruz, a tobacco company, seeking damages for the health problems she developed as a result of the consumption of the company's tobacco products since she was thirteen. She claimed that the tobacco company did not warn the consumers about the health consequences brought by smoking and aired misleading advertisements in violation of the Brazilian Constitution and consumer protection law. The lower court dismissed the case on the grounds that the plaintiff failed to prove the connection between tobacco consumption and her health problems. The plaintiff appealed to the higher court, which ruled in favor of the plaintiff and ordered the company to pay damages.

Cleomar Teresinha Gonçalves v. Souza Cruz, No. 70015107600, Nona Camera Civel da Tribunal de Justica, Rio Grande do Sul [9th Civil Chamber of the Court of Justice of the State of Rio Grande do Sul] (2008).

  • Brazil
  • Aug 27, 2008
  • Court of Justice of the State of Rio Grande do Sul, 9th Civil Chamber (Nona Camera Civel da Tribunal de Justica, Rio Grande do Sul)
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Parties

Plaintiff Cleomar Teresinha Gonçalves

Defendant Souza Cruz S/A

Legislation Cited

Consumer's Defense Code, Law No. 8.078/90 (Código de Defesa do Consumidor, Lei n° 8.078/90)

Federal Constitution of Brazil

Related Documents

None

Type of Litigation

Personal Injury
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.

Tobacco Control Topics

Industry Interference
Measures to protect health policies from the commercial or other vested interests of the tobacco industry. (See FCTC Art. 5.3)
Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
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)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)
Sales to or by Minors
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution. (See FCTC Art. 16)

Substantive Issues

Right to Health
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.
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 Life
A violation of the right to not be killed by another person. Arguments may also be similar or tied to right to health arguments.
Right to Self-Determination
Smokers’ rights groups may claim that governments interfere with consumers’ freedom of choice when they regulate tobacco use.
Consumer Protection Violation

Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.

Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

None

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