TOBACCO CONTROL LAWS

Three Private Individuals v. Baden-Württemberg & Berlin

A nightclub owner and two small pub owners challenged the constitutionality of the provisions of non-smoking laws in Baden-Württemberg and Berlin. The pub owners contended that the exceptions in the laws for restaurants with several rooms distort competition in favor of large establishments and endanger the economic existence of single-room establishments. The club owner argued that discotheque operators were being treated unfairly compared to restaurant owners because the latter had the option of establishing smoking rooms. The Court ruled against the laws, finding that the challenged provisions violated the complainants' fundamental right of occupational freedom.

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Three Private Individuals v. Baden-Württemberg & Berlin, 1 BvR 3262/07, 1 BvR 402/08; 1 BvR 906/08, Bundesverfassungsgericht [Federal Constitutional Court] (2008).

  • Germany
  • Jul 30, 2008
  • Federal Constitutional Court (Bundesverfassungsgericht)

Parties

Plaintiff

  • Discotheque Owner
  • Pub Owner in Tübinge
  • Pub Owner in Berlin

Defendant

  • Baden-Württemberg
  • Berlin

Legislation Cited

Berlin Non-Smoking Act

Non-Smoking Act of the Land Baden-Württemberg

Related Documents

Summary of case in English

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
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.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

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 Commerce
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.
Right to Equal Protection
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.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Work
A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.

Type of Tobacco Product

None

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