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.

  • Sri Lanka
  • Feb 6, 2015
  • Supreme Court
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Parties

Plaintiff Attorney General (assisting Court in consideration of the Bill)

Defendant

Third Party

  • Ceylon Tobacco PLC (intervenor)

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"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. ...""