Argument: Right to a Healthy and Safe Environment

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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.

Confederação Nacional do Turismo et. Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná [Brazil] [August 24, 2020]

The National Confederation of Tourism, together with the National Confederation of Commerce of Goods, Services, and Tourism, filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that state legislative assembly did not exceed its competence to legislate public health. The Court concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

Confederacao Nacional do Comercio de Bens, Servicos e Turismo v. Paraná [Brazil] [August 24, 2020]

The National Confederation of Commerce of Goods, Services, and Tourism filed a lawsuit against the Paraná (state-level) tobacco control law, which prohibits smoking in public or private collective environments in the state of Paraná. The Court unanimously held that the state legislative assembly did not exceed its competence to legislate public health. The Court also concluded that the state law did not offend fundamental freedoms since it did not prohibit the exercise of the individual's right to consume tobacco products. Furthermore, the Court affirmed that the restriction of using tobacco products in collective enclosed environments respected the rights of non-smokers and the adequate protection of health.

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.

[Unnamed Actor] v. México [Mexico] [October 02, 2019]

An agent from the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) confiscated electronic cigarettes from the plaintiff under Article 16(VI) of the General Law on Tobacco Control, which states: "It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products." The plaintiff filed an Amparo action challenging the interpretation of Article 16. The Ministers of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) decided unanimously that it is unconstitutional to ban the sale of electronic cigarettes while, on the other hand, the sale of tobacco products is allowed in Mexico. The Court considered that even though the law seeks to protect the right to health, this cannot be done at the cost of an excessive affectation of other goods and rights. The Ministers agreed that prohibiting the sale of electronic cigarettes while the sale of tobacco products is allowed violates the right to equality, and that the measure is not the least restrictive to guarantee other constitutionally protected rights. As a result, they revoked the order from COFEPRIS and ordered the return of the seized goods to the plaintiff.

This ruling applies only to the plaintiff who was a party to this case. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the third such decision by the Second Chamber.

Jaunait Consulting v. México [Mexico] [July 02, 2019]

The Supreme Court of Justice of the Nation (SCJN) determined that electronic cigarettes cannot be banned under the interpretation of Article 16(VI) of the General Law on Tobacco Control, which states: "It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products." The Court found that this interpretation is unconstitutional since (i) the sale of tobacco products is allowed, and (ii) banning non-tobacco products without a proper justification violates the principles of equality, legality, proportionality, and non-discrimination.

This ruling applies only to the plaintiff who was a party to this case, Juanait Consulting. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the first such decision by the First Chamber.

Vapeadores de México v. México [Mexico] [November 15, 2017]

Vapeadores de México asked the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) to whether the import, distribution, and sale of e-cigarettes and e-liquids required the issuance of an authorization or license and/or health permit and what requirements must be met. COFEPRIS responded that the General Law on Tobacco Control does not contemplate that and that the importation and sale of those products are banned under the scope of Article 16(VI), which states: "It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product, that contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products." Unhappy with the response, Vapeadores de México filed an Amparo action alleging violations of the constitutional principles of equality, legality, and non-discrimination.

The Ministers of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) decided in unanimity that it is unconstitutional to ban the sale of electronic cigarettes while, on the other hand, the sale of tobacco products is allowed in Mexico. The Court upheld previous courts' decisions, considering that even though the law seeks to protect the right to health, this cannot be done at the cost of an excessive affectation of other goods and rights. The Ministers agreed that prohibiting the sale of these products in order to protect public health and the environment violates the right to equality and the proportionality principle since, at the same time, the sale of tobacco products is allowed.

This ruling applies only to the plaintiff who was a party to this case, Vapeadores de México. However, if the same court issues five judgments with identical holdings, the decision would be binding nationally. This is the second such decision by the Second Chamber.

2326169 Ontario Inc. v. City of Toronto [Canada] [June 13, 2017]

Hookah lounge owners appealed a lower court decision upholding a city by-law that banned hookah use in licensed establishments.  The Court of Appeal held that the lower court's ruling was correct and dismissed the appeal.  

Suo Moto Case No. 11 [Pakistan] [October 19, 2016]

This is the final order in a “Suo Moto” case that commenced in 2006. The Court directs that the concerned departments in all provinces ensure that the ban on import and use of flavored/non flavored sheesha (tobacco and tobacco free) and related substances is strictly and effectively implemented.