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Japan Tobacco International and Others v. Ministry of Health (plain packaging laws) [France] [December 23, 2016]

Legal challenges to the plain packaging of tobacco products laws dismissed. 

On December 23, 2016 the Conseil d’Etat (the Council of State, the highest administrative jurisdiction in France) dismissed six legal challenges that were brought against the tobacco products plain packaging laws. Previously, in January 2016, the Constitutional Council had also upheld the law as in accordance with the constitution, on a referral from members of parliament.

In brief, six cases were brought challenging the regulations - four by the tobacco companies, one from the confederation of tobacco retailers, and one from a tobacco paper manufacturer. The Conseil d'Etat dismissed all the claims and held that:

1. The ban on using figurative, semi-figurative signs, and logos on packaging of tobacco products was valid because the brand and variant name is still permitted allowing the identification of the product.
2. Plain packaging constitutes an infringement of property rights, but that this infringement is justified in the light of the objective pursued (public health) and because the measure regulates the use of trademarks but does not completely ban them.
3. There was no 'deprivation' of property rights.
4. For the same reasons, the Conseil d'État held that the national legislation is a quantitative restriction on the importation of goods but this is in conformity with European Union law because the introduction of such restrictions is permitted where they are justified by a public health objective and the protection of human life. The court held that in this case, the challenged provisions must be considered as unable to do anything other than, over time, reduce the consumption of tobacco. The evidence in the case file also showed that neutral packaging would reduce the attractiveness of tobacco products. The measures were therefore proportionate and justified.

A summary of the decisions from the two separate courts is attached in French and English in the section on "Related Documents". 

British American Tobacco Panama v. Panama [Panama] [August 03, 2016]

Decree 611 establishes that Panama's ban on the advertising, promotion and sponsorship of tobacco products includes a ban on tobacco product display at the point of sale. BAT Panama SA and other tobacco companies filed suit requesting an order declaring Decree 611 illegal, arguing that it violated the right to property including intellectual property and consumers’ right to access information. The Administrative Chamber of the Supreme Court of Panama upheld the decree finding that there was no violation of trademark rights as trademark registration and use still were allowed.  The court also found that consumers’ right to access information was assured through the use of the textual listing of products and their prices and through health warnings on packages. Notably, the court used FCTC guidelines to interpret FCTC obligations with regard to tobacco advertisement, promotion and sponsorship.

Nobleza Piccardo v. Provincia de Santa Fe [Argentina] [October 27, 2015]

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. 

British American Tobacco of Peru S.A.C. v. Congress of the Republic [Peru] [July 22, 2015]

British American Tobacco of Peru sued the Congress of the Republic, challenging the prohibition on sales of tobacco packages containing less than 10 cigarettes alleging that such a prohibition violates the freedom of enterprise and industry. This decision, from a Civil Chamber, rejects British American Tobacco’s appeal of the initial decision which had rejected the lawsuit. The Chamber agrees with the first decision and finds that the measures comply with the proportionality principle.

In the matter of Article 122(1)(b) of the Constitution [Sri Lanka] [February 06, 2015]

The Sri Lankan President sought judicial review of the constitutionality of a bill that would amend the tobacco control law to specify that pictorial health warnings should cover 80% of each tobacco pack, as well as increasing the fine for non-compliance.  A tobacco company, Ceylon, intervened in the case.  The tobacco company argued that the threat of illicit trade outweighed the health risks, but the court disagreed and noted that dependence on tobacco is harmful whether legal or illegal. The tobacco company argued that 80% pack warnings were unreasonably large and violated intellectual property laws, but the court disagreed, noting that attending to public health is of high priority, "perhaps the one at the top."  The court also noted that the ability of tobacco companies to engage in lawful trade and use its trademarks would not been hindered by the amendments. The WHO Framework Convention on Tobacco Control is positively cited throughout the decision.  The Court held that the amendments did not violate any constitutional provisions. 

FIC Argentina v. Buenos Aires City Government [Argentina] [August 15, 2014]

A tobacco control NGO sued the Buenos Aires city government arguing that the lack of implementation of the local tobacco control law, with regards to smoke-free environments, violated the right to health. Furthermore, considering the violations of the law were higher in places like bars and night clubs, the NGO argued that workers in those places had lower standards of protection of their right to health. The judge rejected the lawsuit considering there was no illegal or arbitrary act from the local government. In addition, the judge stated that courts should not replace political decisions.

British American Tobacco of Peru S.A.C. v. Congress of the Republic [Peru] [July 24, 2014]

British American Tobacco of Peru sued the Congress of the Republic, challenging the prohibition on sales of tobacco packages containing less than 10 cigarettes alleging that such a prohibition violates the freedom of enterprise and industry. This decision, from the Specialized Constitutional Court of Lima, rejects British American Tobacco’s claim, after performing a proportionality test of the measure.

British American Tobacco Panama v. Executive Decree No. 611 [Panama] [May 28, 2014]

Decree 611 establishes that Panama's ban on the advertising, promotion and sponsorship of tobacco products includes a ban on tobacco product display at the point of sale. BAT Panama filed an unconstitutionality claim requesting an order from the court declaring the Decree void.  BAT Panama argued that the Decree violated the rights to freedom of expression and private property, among other rights. The Supreme Court upheld the Decree, noting, among other things, that even freedom of expression could be restricted if needed to protect public health.

B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Sal's Restaurant, Inc. v. Dep't of Health, Bureau of Health Promotion and Risk Reduction (Pennsylvania) [United States] [April 04, 2013]

A restaurant owner challenged the Pennsylvania Department of Health’s determination that the restaurant did not comply with the requirements for an exception to Pennsylvania’s Clean Indoor Air Act to allow smoking in the bar section of their establishment.  The law banned smoking in indoor public places, but allowed certain exceptions.   The establishment had a bar area, a dining area and a shared hallway with bathrooms for both areas.  The bar area was separated by swinging saloon style doors that did not cover the entire doorway, thus allowing smoke to filter into the shared hallway.  The establishment sought an exception to allow smoking in the bar area but the state agency determined that the bar did not meet the enclosed requirement to prevent smoke from getting out of the smoking area.  The court held that despite attempts to comply with the requirements, the restaurant still did not fulfill the statute and was not compliant by the statutorily required time.  The court affirmed the state agency’s ruling denying the application for exception to the non-smoking law.

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