TOBACCO CONTROL LAWS

Judicial Review of Articles 113, 114 and 199 of Law No. 36 of 2009, Ruling in Case 34

Several petitioners who farmed tobacco or otherwise were employed by or represented the Indonesian domestic tobacco industry argued that provisions of the Health Law addressing tobacco products would cause a decrease in production which would infringe on their right to work.  Petitioners also challenged that tobacco was unfairly targeted as opposed to other "similar" addictive products, such as food, coffee or sports drinks.  The court examined the constitutional issue of "whether the obligation inclusion of health warnings on cigarettes is discriminatory, does not guarantee a decent living, and not provide a fair legal certainty." The Court found that the law was compatible with the petitioner's right to work, because they would still be able to continue their trade and that the right to health took priority over the other less definite constitutional rights asserted by petitioners. Upholding the graphical warning requirement, the Court stated that graphical warnings "will further ensure the fulfillment constitutional rights of citizens of Indonesia, especially the consumer and/ or potential consumers of cigarettes to obtain information about the dangers of smoking, as consumers and / or prospective customers." 

Application for Judicial Review of Elucidation of Article 114 of Law No. 36 of 2009 About Health, Ruling in Case 34 - PUU-VIII/2010, Indonesia, 2011

  • Indonesia
  • Oct 18, 2011
  • Constitutional Court of the Republic of Indonesia
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Parties

Plaintiff

  • Abdul Aziz H. Hafidz SPD; Secretary of the Tobacco Growers Association (APTI), DPD Java East;
  • Ahmad Maftuh; Director, PR (Cigarette Company) Coffee Mathuk
  • Amin Subarkah; Chairman of the Indonesian Tobacco Farmers Association (APTI), DPD East Java
  • Arise; Farmers Tobacco;
  • Drs. Muslim Thalabudin KH.; Chairman of the Indonesian Tobacco Farmers Association (APTI), Sumenep;
  • H. Parmuji; Farmers Tobacco;
  • H. Supriyadi; Farmers Tobacco
  • Hanif; Farmer
  • Hodri; Director, PR (Cigarette Company) Diva Top Independent
  • Mashadi Waluyo; Director, PR (Cigarette Company) Sekar Melati TF
  • Moh. Tafri H; Occupation: Chairman of the Indonesian Tobacco Farmers Association (APTI), Pamekasan;
  • Salim; Farmers Tobacco / Head of the Village
  • Sosiowati; Director, PR (Cigarette Company) Daughter of Mountain
  • Suparno; Worker PT. Gudang Garam
  • Suryadi; Member of the SPSI / Carrier Tobacco Workers
  • Vishnu Nurtanto Brata, S.E.; Chairman of the Indonesian Tobacco Farmers Association (APTI), DPD Central Java

Defendant

Legislation Cited

Law No. 36 of 2009 Concerning Health

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

Related Documents

Constitutional Court Decision No. 34 - Bahasa

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

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)

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 Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
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.
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.
Cultural Norms
A discussion on cultural attitudes around tobacco, specifically that tobacco use is an accepted part of the culture.

Type of Tobacco Product

None

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