For decades cigarette smoking has been a polemical and controversial subject, either due to the damages attributed to tobacco consumption or to the restrictive policies applied to the product. In Brazil, until the end of the 1980s, opposition to smoking was led by feeble regional civil society movements that, at that time, were disorganized. However, in the recent years, inspired by international anti-smoking movements, the Brazilian anti-smoking movement gained momentum and overcame obstacles, earning the sympathy of society, federal, state and municipal governments, as well as medical entities and well-structured and politically articulated non-governmental organizations.
In December 2011, this subject went back to center stage, in view of the enactment of the Law 12,546/2011, originating in Provisional Measure 540/2011, which amends Law 9,294/1996, addressing the increase in cigarette prices and taxes, and establishing a series of restrictions for the tobacco industry, among other matters. The initiatives of Law 12,546/2011 are the prohibition, in the whole country, of cigarette smoking in enclosed places, the so-called "smoking rooms", either private or public; the inclusion of a health warning in addition to the existing ones, occupying 30% of the front face of cigarette packs; and the most polemical measure, the prohibition on cigarette advertisements.
Currently, commercial cigarette advertisement is limited to posters, panels and billboards inside the points of sale; upon the enactment of its enabling regulation, the new law will definitively extinguish tobacco advertisement, either commercial or institutional. Originally, the bill created an exception to such restriction, allowing institutional advertisement of tobacco industries. However, such exception was vetoed by the President by sanctioning the law.
More recently, a new dispute involving the Brazilian tobacco sector has monopolized the discussions within the media and the society. In March, the Brazilian Health Surveillance Agency passed a resolution restricting the use of additives in tobacco products marketed in Brazil. In sum, the norm bans the use of any synthetic and natural substances with flavoring or fragrance properties in all tobacco derivative products. The resolution has provided a period of 12 months to manufacturers change the production process for the tobacco derivative products and another 6 months to withdraw the flavored cigarettes from shop shelves.
This movement within the Brazilian legislative takes place at a time when similar antismoking legislations have been passed in other countries, either by the implementation of "plain packages", meaning packages with no logo, promotional text or attractive colors, or by the imposition of more prominent warning images and messages on the health damages caused by smoking in cigarettes packages. Such measures have raised inflamed discussions, which quite often ends up in judicial litigations, among governmental authorities and manufactures, which argue that such measures violate their fundamental rights of freedom of expression, right to information, intellectual propriety, among others.
In Brazil, freedom of expression and the right to information are prerogatives protected by the Federal Constitution. From the freedom of expression and the right to information arises another right that is protected under the Brazilian Federal Constitution, the right to publicity. Packages and advertisements are the main means available for consumers to receive information on the characteristics of the existing products, the elements that differentiate them, the innovations introduced to them and any other information that makes it possible for the individuals to make informed choices, and to be aware of the risks of using or consuming a certain product. Furthermore, publicity is the most efficient means that can be used by manufacturers to disseminate their brands and sell their products.
Packages are also an essential component of competition, for they are the means through which consumers identify and individualize the products, by means of brands, visual identity, and choose the products in a simple way, without confusion. Said that, the role of cigarette packages becomes essential in a scenario where the channels available for interaction with consumers are legally limited and the market is taken over by smuggled and counterfeit products. Although it does not completely ban the printing of manufacturer or product brands on the packs, the introduction of new health warning message occupying 30% of the front face significantly reduces the space available for manufacturers to apply visual identity and their products' brands.
Moreover, the Consumer Protection Code imposes on advertisement the duty to communicate or inform consumers about the nature, features and qualities of the product, without hiding the risks to the health resulting from its consumption. It must also refrain from inducing the consumer to act in a way that is harmful or dangerous to health or safety. Therefore, once they are well informed about a certain products' characteristics, features and damages that it may cause, the individuals are free to choose what they want to consume, and the State has the role of informing about the risks connected with such product.
Cigarettes are a legal product and the effective communication of its risks to health must be widely disseminated to the whole consumer public. However, what is being discussed here is not the convenience or pertinence of such restrictions, but rather the impact such restrictions would have on freedom of expression, consumers' freedom of choice, intellectual property rights and legitimate competition.
Based on the foregoing, we ask to what point can the State intervene on the constitutional freedoms to protect the consumer's well being? When considering prohibiting tobacco advertisement in Brazil, is the Brazilian government violating the constitutional rights to freedom of expression and to the advertiser's intellectual property, as well as consumers' right to information?
It is certain that, in view of the conflict of individual choice, fundamental rights and government and health analysis, we will still have a lot of discussion of this subject not only in Brazil but in other countries as well.
Authors: Tatiana Campello Lopes - partner at the law firm Demarest e Almeida Advogados and Guilherme Cacciari Veloni - associate at the law firm Demarest e Almeida Advogados
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