Foundation for the Development of Sustainable Policy (FUNDEPS) submits Amicus Curiae in tobacco-related cases in Argentina and Colombia

The department of human rights submitted two Amicus Curiae briefs, enabling public participation in court cases, in discussions concerning health protection and tobacco control. FUNDEPS seeks to promote legal frameworks and protect the human right to health.

Argentina

In the case of “Inter-American Heart Foundation – Argentina versus the Government of the City of Buenos Aires under the Amparo Action of Protection”, FUNDEPS constituted as a “friend of the Court” in the appeal case presented before Room I of the Appeals Chamber in the Civil and Commercial Court of the City of Buenos Aires.Through Amparo, CIF Argentina, a Non-Profit Organisation working in public politics concerning chronic non-communicable diseases, demanded that the Government of the Autonomous City of Buenos Aires take direct measures to effectively comply with provisions by the Law of Tobacco Control in the Autonomous City of Buenos Aires.

In the first instance, Judge Lidia E. Lago rejected the appeal, arguing that the Amparo Action of Protection was intended only for those cases in which constitutional rights are violated in a clearly arbitrary or unlawful manner. The judge accepts that, in this case this requirement was not fulfilled; therefore the Amparo procedure was not relevant, despite non-compliance of regulations causing direct damage to the human right to health of Buenos Aires citizens.

Before the adverse ruling, FIC Argentina appealed the adjudication and FUNDEPS appeared as a “friend of the Court”, supporting the arguments of the appellant. In this manner, FUNDEPS warned against the use of tobacco products and the industry’s focus on young people. Reference was also made to the content and scope of the right to health, the collective face of the right to health, the operating of direct damage prevention within the Argentinean legal system and the role of the judiciary in defending, promoting and protecting human rights.This case still remains unresolved to this day. We at FUNDEPS are hoping for a favourable ruling under this framework and that the right to health be protected, urging the Government of the City of Buenos Aires to respect Human Rights Covenants, the National Constitution, the autonomous city of Buenos Aires Statute and the local legal framework.

Colombia

In Colombia there was a request for nullification of two circulars of the Colombian Superintendency of Industry and Commerce (SIC), which regulates the display of tobacco products. The main argument is that articles 14, 15 and 16 of the 2009 Colombian law 1335 impose a general prohibition on the publicity and promotion of tobacco. The display of tobacco products (regulated by the circulars) is a form of this promotion, for which it should be banned. Adding to this domestic regulation, on 9th July 2008 the WHO framework agreement on tobacco control was enforced, incorporating the possibility of international responsibility of Colombia.

Alongside FIC Argentina, FUNDEPS submitted an amicus curiae brief with the objective of supporting this request to nullify the circular letters of the Superintendence of Trade of Colombia, emphasising how the display of tobacco products is used throughout the entire region as a clear form of marketing. References to the impact of these techniques on health are also incorporated within the analysis, particularly concerning the level of initial consumption in children and adolescents as well as the impediment of cessation in adult smokers.The document carried out a study of the international legal framework which implements the highest standards of the right to health and in particular those documents that specifically categorise the display of products as a form of publicity. In the same way, arguments frequently used by the tobacco industry were presented and answered; arguments with the objective of opposing those measures which tend to restrict these market techniques and aim to guarantee better protection of the right to health. Finally, scientific evidence was enclosed, with respect to positive impacts of this policy type.

At FUNDEPS we celebrate the collaborative efforts of civil society organisations, which seek to ensure adequate health protection, in particular against the tobacco epidemic. In this regard, we trust that the circular letters will be declared void by the Council of State and that it serves as a background record so that the region advances in legal frameworks that duly protect the human right to health.

More information:

– Amicus Curiae brief submitted in Argentina

– Amicus Curiae brief submitted in Colombia

Contact:

Juan Miguel Litvachkes
juanlitvachkes@fundeps.org

Gianella Severini
gianeseverini@fundeps.org

Translated by: Samantha Pearton