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Public Ministry of Rio de Janeiro v. Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli [Brazil] [November 02, 2020]

The Public Ministry in Rio de Janeiro presented a civil action against Rock World SA, Souza Cruz Ltda, and Vega Fina Tabacaria Eireli for illegal advertising in the festival "Rock in Rio" 2017. On November 2, 2020, the court concluded that the defendants engaged in unlawful advertising during the festival. The illegal advertising included (i) visually ostentatious advertising of smoking products and (ii) "mobile sellers.” On the other hand, the sale of a kit that included cigarettes and a lighter with the logo of "Rock in Rio" was not recognized as an illegal practice. The defendants were sanctioned as follows – (1) Defendants were fined R$ 2,000,000.00 for collective moral damages. For individual material and moral damages, each consumer will need to prove individually the actual damage suffered. (2) Defendants must carry out counter-advertising in partnership with public universities and hospitals informing consumers about the risks, prevention, and treatment of Chronic Obstructive Pulmonary Disease (COPD), and smoking cessation.

In addition to bringing this enforcement action against the illegal advertising that took place at the Rock in Rio 2017, the Public Ministry sought an interim judgment barring illegal promotional activities at the then upcoming Rock in Rio 2019 festival. In response to this request, the court issued a series of orders restricting the promotional activities at the 2019 festival.

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Rio de Janeiro [Brazil] [December 20, 2019]

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against Rio de Janeiro's tobacco control law on smoke-free environments, which banned smoking in public or private collective environments. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court noted that local regulations could be more restrictive than the federal regulation. Further, the judges established that (i) freedom of commerce must be interpreted together with the principle of consumer protection and (ii) restrictions on products that are potentially dangerous are legitimate.

Confederação Nacional do Turismo v. São Paulo [Brazil] [December 03, 2019]

The National Confederation of Tourism filed a lawsuit against a São Paulo (state-level) tobacco control law regulating smoke-free places. The judge considered that the action was impaired because, after the claim was filed, a federal law was enacted which regulated smoke-free places in a more comprehensive manner. The newly enacted federal law banned smoking lounges, which the challenged state law had already done.

National Confederation of Industry (Confederação Nacional da Indústria) v. ANVISA [Brazil] [February 01, 2018]

In 2012, Brazil banned tobacco additives and flavors. The National Confederation of Industry (Confederação Nacional da Indústria) challenged the ban. The Supreme Federal Tribunal, Brazil’s highest court, upheld the 2012 regulation and affirmed the Brazilian Health Regulatory Agency’s (ANVISA) right to regulate tobacco products. The court held that freedom of enterprise does not prevent Brazil from imposing conditions and limitations on private activities. The court found that while businesses have rights, they must be compatible with other fundamental and constitutional rights. In the case of tobacco control, these fundamental and constitutional rights include the right to health and the right to information. The court further held that the risks associated with tobacco consumption justify the tobacco market being subjected to intense health regulations.

Because the court failed to reach a majority (5-5 tie), the decision is not binding on other tribunals, and, by not reaching a majority, the court rejected the constitutionality claim against the ANVISA regulation (“Resolução da Diretoria Colegiada da ANVISA 14/2012”). Although the decision is not binding because of a lack of quorum, it is unlikely that subsequent challenges to the regulation would be decided differently.  (Note that the decision is in Portuguese with five pages translated into English. The English translation is located in "Related Documents.")

Sinditabaco v. ANVISA [Brazil] [December 17, 2012]

A Brazilian tobacco lobbying group, Sinditabaco, brought an action to stop the National Health Surveillance Agency, ANVISA, from implementing a rule to ban the use of additives and flavorings in cigarettes.  The group argued that ANVISA did not have the legal authority to make the rule and that the rule was not supported by any scientific evidence as to the health effects of the flavorings.  The group claimed the rule would affect over 95% of tobacco users and presented a petition signed by various stakeholders in the tobacco product supply chain claiming that it would cause billions of dollars of losses.  The legal representatives of ANVISA were not present at the hearing on the issue.  The court agreed to grant the preliminary injunction stopping the implementation of the rule, pending a hearing on the merits of the case.

Souza Cruz v. ACT Brazil [Brazil] [September 28, 2012]

Souza Cruz, a tobacco company, sought to prevent ACT Brazil, a public health NGO, from publishing a video criticizing the placement of tobacco products near candies, gum and other products popular with children. Souza Cruz argued that the video suggested the company was encouraging the criminal act of selling cigarettes to minors.  The court ruled that the video did not target the company specifically but was instead generally advocating for greater restrictions on point of sale placement of tobacco products.  The court found there was no injury to the company sufficient to justify a restriction on freedom of expression. This is a decision of the appellate court agreeing with the trial court to deny the injunction sought by the tobacco company.

Souza Cruz v. ACT Brazil [Brazil] [September 05, 2012]

Souza Cruz, a tobacco company, sought to prevent ACT Brazil, a public interest NGO, from publishing a video criticizing the placement of tobacco products near candies, gum and other products popular with children. Souza Cruz argued that the video suggested the company was encouraging the criminal act of selling cigarettes to minors.  The court ruled that the video did not target the company specifically but was instead generally advocating for greater restrictions on point of sale placement of tobacco products.  The court found there was no injury to the company sufficient to justify a restriction on freedom of expression.

Ministério Público, et al. v. Souza Cruz SA [Brazil] [August 04, 2011]

The plaintiffs brought a lawsuit against Souza Cruz, a tobacco company, seeking damages for the death of their father, who allegedly developed a habit of smoking because of heavy advertisement and lack of information on the contents and side effects of cigarettes. The lower court dismissed the case and the plaintiffs appealed to the higher court with the intervention of the Public Prosecutor's Office. The plaintiffs argued that they were not given due process of law to produce evidence before the court and claimed damages. The higher court found that the plaintiffs’ father had smoked out of free will and that he had sufficient information on the consequences of tobacco consumption.  The Court affirmed the lower court's decision and dismissed the appeal.

Chaves v. Souza Cruz S/A [Brazil] [July 26, 2011]

The plaintiff brought an action against Souza Cruz, a tobacco company, seeking damages for all the health problems allegedly resulting from his use of tobacco products. He alleged that he was induced into smoking cigarettes by the defendant's misleading advertisements. The lower court decided in favor of the tobacco company, finding that the plaintiff had exceeded the statutory time limit to bring the claim. The plaintiff appealed to the higher court, arguing that he had not been given the right to due process of law -- the right to produce evidence -- and that the statutory time limit did not apply. The higher court decided in favor of the tobacco company, stating that the plaintiff had been given the opportunity to produce evidence and that the statutory time limit did apply to the case.

Bernhardt v. Philip Morris Brasil S A [Brazil] [March 22, 2011]

The plaintiff filed a lawsuit against Souza Cruz, a tobacco company, seeking damages for the death of his spouse, who he alleged died from health conditions associated with consuming the defendant's tobacco products, which allegedly resulted from the defendant's misleading advertisements portraying healthy and athletic people smoking. The lower court dismissed the case and the plaintiff appealed to this appeals court. The Court decided in favor of the plaintiff and ordered the defendant pay damages.