Massalin Particulares S.R.L. v. Ministry of Health
In March 2023, the Ministry of Health (MOH) issued Resolution 565/2023, banning the importation, distribution, sale and advertising of heated tobacco products (HTPs), including related devices. Massalin Particulares, a Philip Morris subsidiary, filed an administrative complaint against the HTP ban. They contended the MOH had overstepped its powers, acted beyond the established legal framework, and violated the right to economic freedom. Plaintiff alleged that the Resolution is inadequate in protecting public health as it bans HTPs without demonstrating that they are more dangerous than other over-the-counter products, including conventional cigarettes. The MOH upheld the comprehensive ban on HTPs and their accessories, asserting that it was in line with legal obligations and aimed at safeguarding public health.
Massalin Particulares S.R.L. v. Ministry of Health, RESOL-2023-4105-APN-MS, City of Buenos Aires (2023)
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 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.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.
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.
"It should be emphasized that Law No. 25,675 (General Environmental Law) establishes that when
there is a danger of serious or irreversible damage, the absence of scientific information or certainty
shall not be used as a reason to postpone the adoption of cost-effective measures to prevent the
degradation of the environment or, in this case, public health.
That the aforementioned precautionary principle has its population and ecological analogy in one of
the foundations of medical ethics -the principle of non-maleficence, primum non nocere- and contains
many of the attributes of good practice in public health, such as primary prevention and the recognition
that unforeseen and undesirable consequences of human actions are not infrequent.
Therefore, when there is no certainty but there are indications of possible harmful effects, actions must
be taken in advance (precautionary measures) to avoid potential damage."
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.
In March 2023, the Ministry of Health (MOH) issued Resolution 565/2023, banning the importation, distribution, sale and advertising of heated tobacco products (HTPs), including related devices. Massalin Particulares, a Philip Morris subsidiary, filed an administrative complaint against the HTP ban. They contended the MOH had overstepped its powers, acted beyond the established legal framework, and violated the right to economic freedom. Plaintiff alleged that the Resolution is inadequate in protecting public health as it bans HTPs without demonstrating that they are more dangerous than other over-the-counter products, including conventional cigarettes. The MOH upheld the comprehensive ban on HTPs and their accessories, asserting that it was in line with legal obligations and aimed at safeguarding public health.