Korea Electronic Cigarette Association v. Ministry of Health and Welfare
Korea Electronic Cigarette Association v. Ministry of Health and Welfare, Case 2020 Heungma 365, Constitutional Court (March 2020).
- Republic of Korea
- Mar 17, 2020
- The Constitutional Court
Plaintiff Korea Electronic Cigarette Association
Defendant Ministry of Health and Welfare
The Constitutional Court Act
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
Measures to protect health policies from the commercial or other vested interests of the tobacco industry. (See FCTC Art. 5.3)
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 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 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.
Type of Tobacco Product
E-cigarettes and other ENDS products
Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.
The Korea Electronic Cigarette Association challenged the constitutionality of the Ministry of Health and Welfare’s guidance urging the public to stop using e-cigarettes at least until a safety management system could be put into place and research into human toxicity was completed. The Constitutional Court ruled in favor of the Ministry of Health and Welfare, holding that the guidance did not infringe on e-cigarette companies' constitutional rights. The ministerial guidance did not amount to an "exercise of government power" because it had no direct legal effect on the rights and duties of the people and is, therefore, not subject to adjudication on a constitutional complaint.