Legislative Consultation with Constitutional Division of the Supreme Court
This decision is an official consultation by ten legislators to the Constitutional Court regarding the constitutionality of Costa Rican tobacco control legislation. After the legislature approved the legislation but before the President signed the law, legislators officially consulted the Constitutional Court asking them to assess if the procedure followed by the leadership of the Legislative Assembly was appropriate and whether the legislation met constitutional standards. The petitioners claim that the Legislative Assembly members used a nonexistent regulatory and Constitutional procedure. Additionally, the petitioners argue that the restrictions regarding advertising, promotion and sponsorship; price and tax measures; smoke free measures; contents and disclosure measures; illicit trade; and other such measures are disproportionate and unreasonable. The Court declared the law constitutional and explained that the country has the power to place effective restrictions on tobacco, all with the goal of protecting public health.
Legislative Consultation with Constitutional Division of the Supreme Court, No. 2012-003918, Constitutional Division of the Supreme Court (2012)
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.
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.
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.
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
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.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
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.
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.
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.
[Citing FCTC Preamble and Objective] "Thus, there is no doubt that the measures questioned in the enquiry are in keeping with the objective assumed by our country to place effective restrictions on tobacco, all with the goal of protecting public health, which was already confirmed by this Constitutional Tribunal."
"We deduce from the above international norm [FCTC ARTICLE 16] that there are clearly identifiable and legitimate grounds in the provisions drafted by the lawmaker, which consists of putting up barriers to the commercialization of tobacco products, such as the type the questioners show (setting a minimum number of units for retail sale), in order to prevent or block their acquisition by minors. Given the above, the objections formulated here are inadmissible, as well."
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.
This decision is an official consultation by ten legislators to the Constitutional Court regarding the constitutionality of Costa Rican tobacco control legislation. After the legislature approved the legislation but before the President signed the law, legislators officially consulted the Constitutional Court asking them to assess if the procedure followed by the leadership of the Legislative Assembly was appropriate and whether the legislation met constitutional standards. The petitioners claim that the Legislative Assembly members used a nonexistent regulatory and Constitutional procedure. Additionally, the petitioners argue that the restrictions regarding advertising, promotion and sponsorship; price and tax measures; smoke free measures; contents and disclosure measures; illicit trade; and other such measures are disproportionate and unreasonable. The Court declared the law constitutional and explained that the country has the power to place effective restrictions on tobacco, all with the goal of protecting public health.