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Dir. of CPI of SIC v. Coltabaco S.A.S. et al. [Colombia] [December 27, 2019]
In 2017, the Directorate of Consumer Protection Investigations of the Superintendence of Industry and Commerce ("SIC") opened an investigation following a complaint to prompt the SIC to stop IQOS marketing. The SIC issued a decision in the pending administrative investigation dismissing the complaint.
The SIC closed their decision after taking the following into consideration:
- The Ministry of Health asks for IQOS products to be treated as tobacco products.
- The SIC focused on the fact that only the tobacco sticks for heated tobacco products, as opposed to the IQOS device, are mandated to have health warnings.
- According to the SIC, IQOS does not fall under the authority of the tobacco control law in Colombia (Law No. 1335).
- IQOS marketing practices have not violated consumer protection regulations in Colombia.
Esperanza Cerón Villaquirán et al v. Superintendencia de Industria y Comercio (SIC) [Colombia] [November 17, 2017]
Tobacco control advocates challenged the Superintendency of Industry and Commerce (Superintendencia de Industria y Comercio – SIC) resolutions that regulated point of sale tobacco product displays. Tobacco control advocates alleged that these resolutions violated the complete ban on advertising, promotion and sponsorship established through Law No. 1335. The Colombian State Council held that these resolutions violated Article 13 of the Framework Convention on Tobacco Control (FCTC) and its guidelines that state that product display should be considered a form of advertisement. Consequently, the State Council mandated the SIC to repeal the resolutions, which was done through Resolution No. 1/2018.
British American Tobacco Colombia v. Ministry of Health [Colombia] [September 24, 2015]
British American Tobacco (BAT) Colombia requested that the State Council annul a Ministry of Health administrative decision that did not approve the use of expressions “Click & On,” “Click & Roll,” “Krystal Frost,” “Filter Kings,” and “Frozen Nights” on tobacco products packages. The Ministry’s administrative decision considered such expressions a form of deceptive advertising and thus prohibited under Law 1335. A lower administrative court rejected BAT Colombia’s request, and the State Council, the highest judicial body for administrative matters, upheld the lower court’s decision. The State Council found the expressions to be deceptive advertising and that economic freedoms must be restricted for the protection of the right to health, the right to life and the public interest. Notably and responding to BAT’s allegation, the State Council found no expropriation of intellectual property. The Council observed that intellectual property rights need to be exercised in conformity to human rights obligations. Moreover, responding to the argument that similar expressions had been approved in the past, the Council found that there was no violation of good faith and noted that tobacco control measures are expected to increase in light of further evidence.
COLTABACO S.A. (PMI) v. Coljuegos [Colombia] [February 12, 2014]
Coljuegos, an administrative authority in charge of promotional games in Colombia, prohibited COLTABACO S.A., a Philip Morris International affiliated company, to continue using promotional strategies, such as raffles, at the point of sale, applying the general advertisement, promotion and sponsorship ban established by Law 1335 of 2009. This decision cites the Constitutional Court precedent (Caceres Corrales v. Colombia) and holds that the FCTC Guidelines should be considered subsequent agreements under the Vienna Convention on the Law of Treaties.
BAT - Colombia v. Coljuegos [Colombia] [February 12, 2014]
Coljuegos, an administrative authority in charge of promotional games in Colombia, prohibited British American Tobacco - Colombia to continue using promotional strategies, such as raffles, at the point of sale, applying the general advertisement, promotion and sponsorship ban established by Law 1335 of 2009. This decision cites the Constitutional Court precedent (Caceres Corrales v. Colombia) and holds that the FCTC Guidelines should be considered subsequent agreements under the Vienna Convention on the Law of Treaties.
Caceres Corrales v. Colombia [Colombia] [October 20, 2010]
Plaintiff Corrales challenged the constitutionality of legislative measures banning the advertisement and promotion of tobacco products, arguing that the measures violate the freedoms of economy and enterprise. The court emphasized the hazardous nature of tobacco, the necessity to protect the rights to life and health, and Colombia's obligations under the FCTC. Concluding that the rights of economy and enterprise are not absolute, the court held that the imposed restrictions are compatible with the freedom of enterprise and free private initiative and therefore not unconstitutional. Notable is the Court’s explicit use of the FCTC and the FCTC Article 13 Guidelines to interpret ambiguities in the national law. The Court also used the Guidelines to interpret the norms of the treaty and the obligations on the Parties pursuant to those norms. In addition, it is worth noting that according to the Court, commercial speech can be restricted in a higher degree than other speech because it is more closely linked to freedom of enterprise than to freedom of expression.
Ocampo Uribe v. Colombia [Colombia] [August 17, 2010]
Plaintiff, Ocampo Uribe, challenged the constitutionality of the prohibition of sale of tobacco products in packages containing less than ten cigarettes. According to the plaintiff, this prohibition violates the constitutional principle of individual autonomy as adults would be restricted from purchasing individual cigarettes. Also, according to the plaintiff, the prohibition violates the constitutional principle of solidarity, affecting street sellers, a vulnerable population. The court emphasized the hazardous nature of tobacco, the necessity that the economy promotes development, and the role of the FCTC. The court upheld the measure responding to the two main arguments: on the first, that the prohibition does not restrict tobacco consumption but tobacco sales; on the second, that it was not proved that the prohibition would substantially affect street sellers’ living conditions.
FCTC ex officio review by the Constitutional Court [Colombia] [August 29, 2007]
According to the National Constitution, the Colombian Constitutional Court must decide on the constitutionality of treaties and the laws that approve them. In compliance with this obligation, the Constitutional Court declared the WHO Framework Convention on Tobacco Control and the national law that approves it constitutional and considered the FCTC an essential international instrument to prevent and counteract the harmful consequences of tobacco consumption.