The unconstitutionality claim focused on Article 3 of the law, which prohibits smoking in all health and educational establishments, public institutions, indoor work spaces, enclosed public spaces and any means of public transport, effectively making these areas 100% smoke free environments. The failed claim argued that the clause, by imposing an absolute ban on tobacco consumption in certain areas, violated smokers’ right to personal autonomy, as well as the rights to commerce, economic freedom, and freedom from discrimination.
In its decision, the Court found that the measures imposed by Law 28705 constituted a legitimate limitation on smokers’ right to personal autonomy because allowing smoking would interfere with other individuals’ liberty and personal autonomy. While the Court found that the rights to commerce and economic freedom were limited by the measure, it stated that the limitation is permissible because it passes the proportionality principle test and the rights themselves are not absolute. In referring to the suitability and proportionality of the law’s measures, the Court writes (quoting from the O’Neill Institute’s amicus), “the legislative measure in question is ‘not only constitutionally valid, but also necessary from an International Human Rights Law perspective due to the obligation to protect the right to health of the citizens of the Republic of Peru.’” Additionally, rather than using purely legal analysis, much of the reasoning used to support the Peruvian Court’s decision in this case was based on scientific data from the World Health Organization, outlined in the amicus.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.