In the matter of Article 122(1)(b) of the Constitution
The Sri Lankan President sought judicial review of the constitutionality of a bill that would amend the tobacco control law to specify that pictorial health warnings should cover 80% of each tobacco pack, as well as increasing the fine for non-compliance. A tobacco company, Ceylon, intervened in the case. The tobacco company argued that the threat of illicit trade outweighed the health risks, but the court disagreed and noted that dependence on tobacco is harmful whether legal or illegal. The tobacco company argued that 80% pack warnings were unreasonably large and violated intellectual property laws, but the court disagreed, noting that attending to public health is of high priority, "perhaps the one at the top." The court also noted that the ability of tobacco companies to engage in lawful trade and use its trademarks would not be hindered by the amendments. The WHO Framework Convention on Tobacco Control is positively cited throughout the decision. The Court held that the amendments did not violate any constitutional provisions.
In the matter of Article 122(1)(b) of the Constitution, S.C. (SD) No. 2/2015.
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.
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)
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.
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
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.
Subsequent regulations exceed the scope of the originating law.
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.
"One of the objects of Act No. 27 of 2006 as stated in the preamble to the said Act is to "identify the policy on protecting public health in order to eliminate harms relating to tobacco and alcohol". A policy once formulated is not good for ever. The Government has the power to change the policy. The executive power is not limited to frame a particular policy. ... It should not however be arbitrary and capricious. ... Thus, the covering the area of 80% of both front and back sides of every packet, package or carton contacting cigarettes and other tobacco products cannot be considered arbitrary and capricious."
"In the determination of S.C. (S.D.) No. 13 - 22/05 (National Authority on Tobacco and Alcohol Bill) it was held that "the Petitioners who are from the alcohol and tobacco industries and trade do not dispute the findings disclosed in these publications that manage from specialized Agencies of the United Nations; their contention is that the health risk of the illicit trade is far worse and the restrictions sought be placed on the lawful trade would aggravate the health risk resulting from the illicit trade. This argument fails to account for the basic premise that the harmful impact of alcohol, tobacco and for that matter drug, whether the source of supply of such substance is lawful or illicit, is a common pattern of use, addiction and dependence. Undoubtedly, the health risk of illicit use is worse. But, the behavioural tendency of use, addiction and dependence being the same, the lawful trade and the illicit trade would have the effect aggravating such behavioural tendency. The user would have recourse to the licensed source as well as illicit sources when the behavioural trend is set in motion. Hence, from the point of public health, there is a harmful interlink. ...""
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.
The Sri Lankan President sought judicial review of the constitutionality of a bill that would amend the tobacco control law to specify that pictorial health warnings should cover 80% of each tobacco pack, as well as increasing the fine for non-compliance. A tobacco company, Ceylon, intervened in the case. The tobacco company argued that the threat of illicit trade outweighed the health risks, but the court disagreed and noted that dependence on tobacco is harmful whether legal or illegal. The tobacco company argued that 80% pack warnings were unreasonably large and violated intellectual property laws, but the court disagreed, noting that attending to public health is of high priority, "perhaps the one at the top." The court also noted that the ability of tobacco companies to engage in lawful trade and use its trademarks would not be hindered by the amendments. The WHO Framework Convention on Tobacco Control is positively cited throughout the decision. The Court held that the amendments did not violate any constitutional provisions.