Slatkine, et al. v. Grand Conseil of the Canton of Geneva
Ivan Slatkine and others sued the Grand Conseil of the Canton of Geneva regarding the constitutionality of a popular initiative titled “Second-hand smoke and health.” The initiative highlights the hazards linked to second-hand smoke and the need to protect the staff of public establishments as well as the persons frequenting them. The legislative commission of the Grand Conseil (Commission) declared the initiative to be unconstitutional in part because it sought an outright ban of smoking in all public places. The Commission remedied the provision by carving out an exception for residential premises intended predominantly for private use. Slatkine and others filed a constitutional complaint, asking the court to find the ban unconstitutional as it is against worker protection and personal freedom. They also argued that the Commission’s exception was against the intent of the authors. The Court explained that the exception did not distort the authors’ intentions because it maintained the prohibition of smoking in nearly all public places. Further, the Court dismissed the argument that the exception is contrary to superior law or infringes on personal freedom. Notably, the Court cited Article 8 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC), which calls for smoke-free public places. The Court stated that as soon as the Treaty was ratified, recognition of the harmful effects of tobacco smoke will constitute an international obligation for Switzerland. The Court upheld the provision.
Slatkine, et al. v. Grand Conseil of the Canton of Geneva, 1P.541, Swiss Federal Supreme Court (2007)
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.
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.
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
None
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"The Grand Conseil considers that smoking is not a basic manifestation of personality development and is hence not protected by Art. 10 para. 2 Cst. For the same reason Art. 13 Cst. is not applicable, except in the specific cases of either imprisonment or a long stay in a healthcare establishment or a hotel. Similarly, economic freedom could be invoked only in very specific cases (establishments devoted to smoking) that implementing legislation could take into account. Absent a fundamental right, requirements concerning legal basis and proportionality are inapplicable. As a subsidiary matter, the Grand Conseil considers that the amended version of the initiative is sufficiently clear as regards the principle and scope of the smoking ban, and that the necessary exceptions could be detailed in implementing legislation. In its view, the initiative is undeniably in the public interest since it sets forth measures designed to safeguard public health, and no other measure is equally effective in that respect. Furthermore, the ban is consistent with the postulate of the WHO Framework Convention on Tobacco Control of 21 March 2003."
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.
Ivan Slatkine and others sued the Grand Conseil of the Canton of Geneva regarding the constitutionality of a popular initiative titled “Second-hand smoke and health.” The initiative highlights the hazards linked to second-hand smoke and the need to protect the staff of public establishments as well as the persons frequenting them. The legislative commission of the Grand Conseil (Commission) declared the initiative to be unconstitutional in part because it sought an outright ban of smoking in all public places. The Commission remedied the provision by carving out an exception for residential premises intended predominantly for private use. Slatkine and others filed a constitutional complaint, asking the court to find the ban unconstitutional as it is against worker protection and personal freedom. They also argued that the Commission’s exception was against the intent of the authors. The Court explained that the exception did not distort the authors’ intentions because it maintained the prohibition of smoking in nearly all public places. Further, the Court dismissed the argument that the exception is contrary to superior law or infringes on personal freedom. Notably, the Court cited Article 8 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC), which calls for smoke-free public places. The Court stated that as soon as the Treaty was ratified, recognition of the harmful effects of tobacco smoke will constitute an international obligation for Switzerland. The Court upheld the provision.