Nobleza Piccardo, a BAT affiliate, challenged the constitutionality of a sub-national law that established a complete ban on tobacco advertisement, promotion and sponsorship in the Province of Santa Fe. The tobacco company argued that this measure violated freedom of expression and commercial freedoms and that sub-national governments were not entitled to legislate in these matters. The Argentine Supreme Court ruled in favor of the sub-national tobacco control law, finding that this ban was a reasonable restriction of commercial freedoms. Considering the impact of tobacco use, the Court connected these measures to be obligations derived from the right to life and the right to health. With regards to freedom of expression, the Court found that commercial speech is not entitled the same level of protection as political or social speeches. The Court also understands that health is an area of concurrent power and thus shared by both the federal and the sub-national governments. Notably, even though Argentina has not ratified the FCTC, the Court uses it as an international standard for tobacco control policies.
Nobleza Piccardo S.A.I.C. y F. c/ Provincia de Santa Fe, 188/2006 (42-N)/CS1, Corte Suprema de Justicia (2015)
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.
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.
The subject matter of the case should be dealt with at a state level or national level.
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.
"The same attitude should be adopted with respect to the approach to Art. 8 of Law 12.432, concerning the prohibition of promotion and sponsorship of sports and cultural events, and of taking part in them with apparel containing advertising for companies and/or brands engaged in the production and/or distribution of tobacco and its derivatives. Although it differs from the letter of Art. 8 of the national regimen, prohibiting “manufacturers and merchants of products made from tobacco to engage in sponsorship and underwriting of brands at any type of public activity or event, and through any communications medium,” it appears to be an appropriate restriction as
a curtailment of certain sporting activities, considering that it falls – for the reasons set forth heretofore – within the purview of the provinces to authorize them in the domain of their respective jurisdictions. In consequence, the complaint invoked on this score can also not be upheld."
"From the foregoing legal decisions cited by way of example, it can be gleaned that in comparative law there is a tendency towards upholding the prima facie validity of legislative measures aimed at restricting, and even banning – as in the case of the current proceedings – the commercial advertising of tobacco products. The common features of these different decisions are related to the admissibility of such restrictions, based on the public health effects caused by tobacco consumption; the possibility that for these constitutionally valuable purposes, restrictions can be imposed on business and on the protected domain of commercial speech; and the need to exercise a judgment of proportionality to determine the validity of the balancing of means and ends, in terms of the limitation imposed on advertising for tobacco and the discouragement of consumption, particularly in consideration of subjects of special protections."
"The Constitutional Court of the Federal Republic of Germany, for its part, in considering the different regulations in this field, characterized the obligation of the tobacco companies to place warnings on their products on the danger to health posed by smoking as a relatively mild interference. On the other hand, it found that a total ban of any kind of tobacco products would constitute a severe interference. On the side of contrary arguments bearing on the hazards of smoking, is the importance of the reasons that justify a high level of interference (BVerfGE 95, 173, decision of the Second
Federal Constitutional Court, of January 22, 1997, Alexy Robert, "La construcción de los derechos fundamentales,” Ed. ADHoc, Buenos Aires, 2012, pages 27 and following)."
"In the framework of French constitutional oversight, in its Decision N° 90-283 DC of January 8, 1991, the Constitutional Council declared Art. 2 of the law for the control of tobacco and alcoholism, which prohibits any publicity or advertising, directly or
indirectly, of alcohol or tobacco products, as well as any free distribution thereof, to be in accordance with the French Constitution. According to the Council, a legislative decision of this nature is constitutional, since it is based on (i) the state’s authority, also existing in French law, to regulate advertising of goods and services; and (ii) a limitation of this nature has a direct impact on the guarantee of the constitutional principle of protection of the public health. It was affirmed, moreover, that the ban could not be construed as impinging on free enterprise, inasmuch as restrictions can also be imposed on this right in connection with the public interest and, in any case, the legislation analyzed does not place restrictions on the production, distribution and sale of tobacco resources."
"With regard to the right to health, the Court has said that it is closely related to the right to life, and this is the first right of the individual that is recognized and guaranteed by the National Constitution; man is the axis and core of the entire legal system, and as an end in himself – over and above his transcendent character – his person is inviolable and constitutes a fundamental value, with respect to which the remaining values always have an instrumental character (Judgments: 329:4918).
The guardianship of this right is responsibility enshrined by the National Constitution, and included in the provincial Constitution (Arts. 5 and 121), and by international treaties that have such a hierarchy (Art. 75, sub-paragraph 22, of the Constitution; Art. 12, sub-paragraph c of the International Covenant for Economic, Social and Cultural Rights; sub-paragraph 1 of Arts. 4 and 5 of the American Convention on Human Rights –the Pact of San José, Costa Rica; sub-paragraph 1, of Art. 6 of the International Covenant on Civil and Political Rights; and also Art. XI of the American Declaration of the Rights and Duties of Man, and Art. 25 of the Universal Declaration of Human Rights; Judgments: 330:4647, and case CSJ 670/2006 (42-S)/CS1 "Sánchez, Elvira Norma v. Instituto Nacional de Servicios Sociales para Jubilados y Pensionados y otro,” judgment of May 15, 2007)."
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.
Nobleza Piccardo, a BAT affiliate, challenged the constitutionality of a sub-national law that established a complete ban on tobacco advertisement, promotion and sponsorship in the Province of Santa Fe. The tobacco company argued that this measure violated freedom of expression and commercial freedoms and that sub-national governments were not entitled to legislate in these matters. The Argentine Supreme Court ruled in favor of the sub-national tobacco control law, finding that this ban was a reasonable restriction of commercial freedoms. Considering the impact of tobacco use, the Court connected these measures to be obligations derived from the right to life and the right to health. With regards to freedom of expression, the Court found that commercial speech is not entitled the same level of protection as political or social speeches. The Court also understands that health is an area of concurrent power and thus shared by both the federal and the sub-national governments. Notably, even though Argentina has not ratified the FCTC, the Court uses it as an international standard for tobacco control policies.