The Lion Brewery Ceylon Ltd., et al. v. Hon. Attorney General, et al.
The leading manufacturers/producers of tobacco and alcohol products sued the Attorney General and others challenging the constitutionality of the “National Authority on Tobacco and Alcohol” Bill. The Bill advises the government on the implementation of the Tobacco and Alcohol Policy and recommends measures to minimize harm and eliminate the illicit trade arising from the consumption of tobacco and alcohol products. The Bill also creates new offences, particularly with regard to the sale of tobacco and alcohol products and the promotion of such sale by means of advertising and sponsorship of sports and cultural events. The manufacturers argue that the production and sale of tobacco and alcohol, directly affected by the Bill, are lawful trades unlike the illicit trade in alcohol and drugs and that since the lawful trade is sought to be restricted in the manner set out in the Bill, it is discriminatory and denies them the freedom of expression and equal protection of the law as guaranteed by the Constitution. The Court found that specific provisions of the legislation were inconsistent with the Constitution but, taken as a whole, the legislation is valid. The Court noted that it is the duty of the State to take such measures as envisaged in the Bill in the face of the proven risk to public health resulting from the use/consumption of tobacco and alcohol products.
The Lion Brewery Ceylon Ltd., et al. v. Hon. Attorney General, et al., S.C. (S.D) Nos. 13-22/05, Supreme Court of the Democratic Socialist Republic of Sri Lanka (2006)
Sri Lanka
Jan 16, 2006
Supreme Court of the Democratic Socialist Republic of Sri Lanka
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.
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution.
(See FCTC Art. 16)
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.
Regulatory measures may lead to an increase in illegal sales, such as counterfeit products. The industry may also argue that such illicit trade will reduce tobacco tax revenue.
Tobacco is a legal product and the tobacco industry is a legal industry.
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 two fold contention in our view cannot overcome the basic premise that the consumption or use of tobacco and alcohol are harmful to health. Whether it is in the guise of promoting a choice or making an informed decision of what should be purchased, since the end result is going to be harmful to public health the restriction in our view would in any event be permissible in terms of Article 15(7) of the Constitution. Further, on the question whether a prohibition on the advertisement of any article, could per se constitute a restriction on the freedom of speech and expression, it is relevant to cite the findings of the Supreme Court of India in the case of Hamdard Dawakhana vs Union of IndiaAIR 1960 S.C page 544. In this case it was held that a total prohibition on advertisement imposed by the Drug and Magic Remedies (Objectionable Advertisement) Act was not inconsistent with the corresponding Article 19 (1)(a) of the Indian Constitution. It was held that if the prohibition merely deprives a trader from commending his wares it would not fall within the freedom of speech as guaranteed by the Constitution. The Supreme Court of India adopted a useful observation made by Justice Mc.Kenna in John. W.Rast vs Van Deman & Lawis Co., 1915 60 U.S.Lawyers Ed.679 at 690 where it was stated as follows: "Advertising is merely identification, and description appraising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase." It was further held that advertising does not come within the objective of the freedom of speech which is intended to safeguard the natural right of an organized freedom loving society to impart and acquire information about a matter of common interest. We are inclined to accept this statement as to the ambit of the freedom of speech and expression and hold that advertising does not come within its scope."
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 leading manufacturers/producers of tobacco and alcohol products sued the Attorney General and others challenging the constitutionality of the “National Authority on Tobacco and Alcohol” Bill. The Bill advises the government on the implementation of the Tobacco and Alcohol Policy and recommends measures to minimize harm and eliminate the illicit trade arising from the consumption of tobacco and alcohol products. The Bill also creates new offences, particularly with regard to the sale of tobacco and alcohol products and the promotion of such sale by means of advertising and sponsorship of sports and cultural events. The manufacturers argue that the production and sale of tobacco and alcohol, directly affected by the Bill, are lawful trades unlike the illicit trade in alcohol and drugs and that since the lawful trade is sought to be restricted in the manner set out in the Bill, it is discriminatory and denies them the freedom of expression and equal protection of the law as guaranteed by the Constitution. The Court found that specific provisions of the legislation were inconsistent with the Constitution but, taken as a whole, the legislation is valid. The Court noted that it is the duty of the State to take such measures as envisaged in the Bill in the face of the proven risk to public health resulting from the use/consumption of tobacco and alcohol products.