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In a clear victory for public health and tobacco control, on October 19, 2022, Uruguay’s judiciary suspended the application of Executive Decree 282/022 — which regulated the country’s tobacco plain packaging Law 19.723 — on grounds that it unlawfully and unconstitutionally jeopardized children and adolescents’ rights and infringed upon Uruguay’s national legal framework and its international obligations under international health and human rights law.
The landmark decision was the result of a constitutional lawsuit aimed at protecting fundamental rights filed by the Uruguayan Tobacco Control Society (Sociedad Uruguaya de Tabacología — SUT) challenging the flexibility in practice of tobacco plain packaging norms. SUT argued that, under the guise of fighting the illicit tobacco trade, the government modified the existing regulation to allow tobacco companies to brand their products and include distinctive characteristics on the cigarettes and in the cigarette pack interior. This flexibility in practice also allowed tobacco companies to use packaging materials and structural designs beyond hard-cardboard and “flip-top” openings, which were previously prohibited. Thus, the decree allowed the marketing of tobacco products, contravening the Framework Convention on Tobacco Control (FCTC) and the implementing Uruguayan legislation.
Relying extensively on international human rights law, the ruling clearly establishes that children and adolescents’ rights must prevail over corporate interests, making this a remarkable precedent for tobacco control, public health, and human rights. The ruling states that “regardless of their motivation, the measures that are adopted in relation to cigarette packs must always take into consideration the best interests of children and adolescents, avoiding infringements of their right to health and protecting an environment free of tobacco smoke, and against tobacco consumption inducements” (unofficial translation with emphasis added).
Moreover, the decision expands on the interrelated and indivisible nature of human rights, reflected in the fact that violations of the right to health also constitute a breach of children and adolescents’ rights to life, to dignity, and to develop and thrive both physically and mentally. The judgment analyzes Uruguay’s legal framework under its international commitments, both in relation to tobacco control, as mandated by the FCTC, and under the Convention of the Rights of the Child and other human rights treaties. Thus, it concludes that the state infringes upon the law when its efforts to combat illicit tobacco trade fail to take into consideration the impacts of these measures on human rights, especially the right to health and the best interests of children and adolescents.
The ruling engages with complex evidence behind plain packaging of tobacco products, stressing that the “freedom of action” for tobacco companies to decide on certain aspects of the cigarette pack is, in itself, a violation of the provisions on plain pack. This acknowledges that the core issue at stake is not whether there is evidence available that the changes introduced by the decree will have actual impacts on the health of children and adolescents, but instead that tobacco companies will take advantage of even the most minimal amount of leeway to market their products. This is specifically forbidden under the FCTC, the Uruguayan implementing law, and the applicable national and international human rights framework.
The decision is also noteworthy with respect to the judicial protection of the right to health, as it addresses its preventive dimension in a context in which most litigation efforts are related to access to health care. The preventive dimension of the right to health includes the prevention of noncommunicable diseases through obligations that, in the context of tobacco, are clearly defined in the FCTC, but are also more broadly captured in the 2030 Agenda for Sustainable Development. As stressed in the ruling, this dimension of the right to health is particularly relevant when diffuse interests and collective rights — such as children and adolescents’ rights — are at stake.
The Uruguayan ruling also adopts a rights-based approach to procedural matters, granting SUT standing to represent children and adolescents’ collective rights by means of a legal avenue that had been limited in the past, in a country known for its restrictive approach to standing issues. Significantly, the judge supports this decision on the specific facts of the case, but also acknowledges that allowing meaningful civil society participation in the defense of diffuse interests can foster accountability and bolster the democratic system. This is a welcome development in the context of a legal system that is otherwise largely closed to such collective rights claims.
Another remarkable feature of the decision is the reversal of the burden of proof in the context of health-related claims. This reversal was clear when the judge required the government to provide evidence that the decree would not be harmful to health. Because the government failed to take into account the harms that its new regulation could pose to the health of children and adolescents — and did not provide relevant evidence showing an adequate consideration of such harms — the judge reached the conclusion that the burden of proof was not met.
The judgment is an important precedent for Uruguay and the Latin American region. It shows that the judicial protection of the right to health must go way beyond access to health care claims and focus also on shielding preventive policies and regulations from arguments based on economic interests. It also protects such policies and regulations from the interference of powerful industry actors that consistently use sophisticated tactics to undermine public health efforts. Through a comprehensive framing of the case under international and regional human rights law standards, the decision sheds light on complex legal and technical evidence on tobacco control to ultimately uphold what should be obvious: human rights, and the right to health, must prevail over economic interests. Although the decision is subject to appeal, the Uruguayan government should take this opportunity to reconsider and be consistent with its historical role as the champion of tobacco control in the Americas.
The full text of the decision — Sentencia Nro. 150/2022 — can be found here.