TOBACCO CONTROL LAWS

Nicolás Parra Castro v. Superintendency of Industry and Commerce (Second Instance)

The plaintiff, a member of “Educar Consumidores” NGO, filed a lawsuit to order the Superintendency of Industry and Commerce (SIC) to inspect, monitor, and control the advertising and promotion of tobacco products and their derivatives. Specifically, the plaintiff requested that the judges order SIC to demand that Coltabaco and Philip Morris Colombia withdraw all advertising of IQOS (a heated tobacco product) devices. In the first instance, the Court denied the claim because the norms invoked by the plaintiff did not contain an imperative and enforceable mandate against the defendant. On appeal, the Court confirmed the previous decision since it also understood that the cited norms -although they established the general prohibition on the advertising and promotion of tobacco products and their derivatives - did not create a clear and concrete obligation that corresponded specifically to SIC.

Nicolás Parra Castro v. Superintendency of Industry and Commerce, File 25000-23-41-000-2019-00508-01, Council of State, Contentious-Administrative Chamber, Fifth Section (2019).

  • Colombia
  • Nov 14, 2019
  • Consejo de Estado, Sala de lo Contencioso Administrativo, Sección Quinta (Council of State, Contentious-Administrative Chamber, Fifth Section)
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Parties

Plaintiff Nicolás Parra Castro

Defendant Superintendencia de Industria y Comercio

Third Party

  • Corporación Colombiana de Padres y Madres (Red Papaz)

Legislation Cited

Law No. 1109 Approving the WHO Framework Convention on Tobacco Control

Law No. 1335

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

Related Documents

None

Type of Litigation

Enforcement Action by a Private Individual or Private Entity
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.

Tobacco Control Topics

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 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.
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.

Procedural Defect
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.

Type of Tobacco Product

Heated tobacco products (HTPs)

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.

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