Argument: Right to Self-Determination

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Litejoy International v. Union of India [India] [July 11, 2019]

Litejoy International challenges a Drugs Controller General of India (DCGI) order calling for enforcement of a Ministry of Health and Family Welfare Advisory instructing states to undertake a ban on the sale (including online sale), manufacture, distribution, trade, import and advertisement of e-cigarettes, among other products. On March 18, 2019, a single judge of the Delhi High Court stayed the DCGI order’s implementation, holding that e-cigarettes do not fall within the definition of a ‘drug’, as defined under section 3(b) of the Drugs and Cosmetics Act 1940.

(Heard along with M/S Focus Brands Trading v. Directorate General of Health Services, W.P. (C) 2688/2019 and Piush Ahluwalia v. Union of India, W.P. (C) 2735/2019.)

Piush Ahluwalia vs. Union of India [India] [November 04, 2018]

Piush Ahluwalia challenged the Ministry of Health & Family Welfare's August 28, 2018 ENDS advisory.  The court dismissed the petition with the observation that the advisory is not binding.  

Petition for C M for Judicial Review and Answers for the State Hospitals Board for Scotland [United Kingdom] [August 27, 2013]

A patient at a state mental hospital in Scotland challenged the hospital’s comprehensive smoke-free policy, which prohibited him from smoking indoors and on the hospital grounds. The court found that the hospital’s policy was unlawful as applied to this particular patient but it did not overturn the smoking policy entirely. The court ruled that the hospital’s policy violated the patient’s human rights and the hospital failed to show an objective and reasonable justification for treating the patient differently from adult prisoners, who are able to smoke. The court refused to award damages to the patient. 

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.

5000 Citizens v. Article 3 of Law No. 28705 [Peru] [July 19, 2011]

Five thousand Peruvian citizens brought action before the Constitutional Court challenging the constitutionality of an article of the tobacco control law that completely prohibits smoking in certain public places, including outdoor areas of educational facilities.  They argued that these limits infringed on the right to personal autonomy, right to commerce, and right to economic freedom and that smoking should be allowed in outdoor areas of institutions for higher learning for adults and in special smoking areas. The Court dismissed the plaintiffs' suit and confirmed the constitutionality and legality of the law. The Court held that the law was strictly proportional, placing the right to health above the alleged violated rights, and that the smoking ban was the ideal means to comply with provisions of the Framework Convention on Tobacco Control (FCTC) that require protection from exposure to tobacco smoke. 

Vescovi, et al. v. Souza Cruz S A [Brazil] [January 10, 2011]

The plaintiffs sought damages under various tobacco control laws from defendant tobacco company, Souza Cruz, claiming that defendant's misleading advertisements led to their husband/father's consumption of tobacco products for many years and his eventual death. The Court held in favor of the tobacco company and dismissed the case, finding that the defendant had acted in compliance with the tobacco control laws.

Alegre v. Souza Cruz S A [Brazil] [December 30, 2010]

The plaintiff, Dina Ribeiro Mont Alegre, filed a lawsuit against Souza Cruz, a tobacco company, seeking damages for health problems she was suffering allegedly due to tobacco consumption. She claimed that when she began smoking, the advertisements were misleading and did not warn her about the possible health problems caused by the substances in the cigarettes. The Court ruled in favor of the tobacco company, finding that the consumer has the liberty of choosing to smoke and that, at the time the plaintiff had started smoking, tobacco companies were not obligated to warn consumers in their advertisements. Therefore, the Court exempted the defendant of any responsibility.

Associação Brasileira de Bares e Restaurantes, seccional São Paulo (ABRASEL-SP) v. Diretor Exectivo da Fundação de Proteção e de Defesa do Consumidor de São Paulo (PROCON-SP), et al. [Brazil] [September 13, 2010]

The Association of Bars sought to continue permitting clients to smoke in food establishments after the State of Sao Paulo passed a prohibition against the practice. Specifically, the plaintiff claimed that the law prohibiting smoking in restaurants was unconstitutional because São Paulo exceeded its powers when it legislated the matter. The defendants claimed that they rightfully legislated legal provisions complementary to the Constitution and the Framework Convention on Tobacco Control (FCTC), which Brazil has ratified. The defendants therefore claimed that the law passed in the State of São Paulo was constitutional and that the bars and restaurants had to provide a smoke-free environment.  The plaintiff appealed the decision of the lower court, but the higher court affirmed the constitutionality of the State of São Paulo's law.

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.

Correctional Service of Canada, et al. v. Mercier, et al. [Canada] [June 21, 2010]

The Correctional Service of Canada published a directive that prohibited prisoners from smoking in indoor and outdoor areas in federal prisons. Prisoners challenged the validity of the directive. The Federal Court ruled in favor of the prisoners. The Federal Court of Appeals held that the Commissioners' directive was within its power and upheld the ban.