The cases below illustrate how graphic health warnings have been challenged since the WHO FCTC came into force; how parties have framed their defences to such challenges; and how courts have considered the issues at stake. The list is not exhaustive but rather shows examples of how issues have been framed in different legal challenges.

BAT Uganda Ltd v. Attorney General, et al. No. 46 of 2016 (Constitutional Court of Uganda, 2019)

The Constitutional Court of Uganda unanimously rejected a legal challenge brought by British American Tobacco (BAT) against the Tobacco Control Act 2015 of Uganda. The Act is a comprehensive tobacco control law implementing the WHO FCTC including provisions providing for graphic health warnings covering 65% of the principal display areas. Among other things, BAT challenged the Act as violating its rights to property. BAT argued that legislative requirements for graphic health warnings on tobacco product packaging violated its intellectual property rights, both as part of its constitutional right to property claim and separately under the World Trade Organization (WTO) agreements.

The Court found that:

• The 65% graphic health warnings were clearly designed to achieve the Act’s objectives and do not go beyond what is required; it is common in free and democratic countries to have larger warnings and ‘no cogent evidence’ was provided by BAT that the graphic health warning requirement was irrational, arbitrary or unjustifiable in light of the ‘glaring evidence’ in support of the warning requirements.
• There is no right to use a trademark, which provides only the right to exclude third parties from use. As such, graphic health warnings do not infringe on trademark rights, and in any case such limitations would be justified.

The Court dismissed the petition in its entirety and ordered BAT to pay costs.

Ceylon Tobacco v. Minister of Health (Sri Lankan Court of Appeal, 2014)

The Court of Appeal of Sri Lanka upheld regulations (made under the National Authority on Tobacco and Alcohol Control Act) requiring pictorial health warnings on tobacco packaging. However, it ordered that the size of the warnings be reduced from the 80% prescribed to between 50% and 60%.

The Court of Appeal found that the primary legislation provided authority to require pictorial health warnings, not just textual warnings as the tobacco company had argued. The Court held that ‘all necessary and relevant background facts need to be ascertained not only from within our country, but from also a global point of view since pictorial warnings on cigarette packs are accepted displayed and adopted all over the world, both in developed and developing countries'. It considered that ‘[i]t would never have been the intention of Parliament to exclude pictorial health warning since such a pictorial warning need to reach all category of persons. i.e the poor, rich, middle class, literate and illiterate, disabled and as well as children.' The Court took the WHO FCTC and the Article 11 Guidelines into account, stating that: ‘Our courts recognize international commitments and [relevant articles] of the Constitution endeavour to foster respect for international law and treaty obligation.' The Court held that ‘[h]ealth of each and every citizen of our country and all those living in Sri Lanka permanently or in a temporary capacity is paramount and need to be protected'. However, it decided that ‘20% of the space is not reasonably sufficient to present and exhibit a trademark', and ordered that the warning size be reduced, as subordinate legislation such as the challenged regulations needed to be consistent with statutory provisions contained in Sri Lanka’s domestic intellectual property statute.

In the matter of Article 122(1)(b) of the Constitution (Sri Lankan Supreme Court, 2015)

Following the decision in Ceylon Tobacco v Minister of Health, Sri Lanka’s National Authority on Tobacco and Alcohol Control Act was amended to authorise graphic health warnings covering 80% of the front and back of tobacco product packaging in the parent legislation (rather than the regulations). Ceylon Tobacco again challenged the graphic health warning requirements, arguing that the amendment was inconsistent with its intellectual property rights and that it was arbitrary. The Supreme Court of Sri Lanka upheld the legislation, finding no violation of the constitution. It considered that the legislative amendment did not affect Ceylon Tobacco’s intellectual property rights, that the legislature’s decision to adopt 80% graphic health warnings was not arbitrary but part of the government’s general power and discretion to set policy, and that the ‘maintenance and improvement of public health [was] indispensable to the very physical existence of the community’ and of ‘high priority’. It concluded that the legislation was within the power of Parliament and consistent with the Constitution.

Canada (Attorney-General) v. JTI-Macdonald Corp., et al. (Canada, 2007)

The Supreme Court of Canada upheld a law increasing the size of graphic health warnings on tobacco packaging from 33% to 50% and banning misleading promotional statements on packaging, as well as restricting tobacco advertising, promotion, and sponsorship more generally, discussed here. Several tobacco companies challenged these regulations, arguing amongst other things that the graphic health warnings requirements and ban on misleading statements unjustifiably limited their rights to freedom of expression under the Canadian Charter of Rights and Freedoms. The Court found that the ban on ‘false, misleading or deceptive' promotion and promotion ‘likely to create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions', did interfere with the guarantee of freedom of expression, but was justified as it was in the interest of public health and consumer protection. In doing so, the Court noted that the ‘exact wording of the impugned phrase' appears in the WHO FCTC, and held that the law did not go further than necessary to achieve the Government's objective. The Court considered that the 50% graphic health warning requirements did interfere with the freedom of expression but were justified, as the Government's goal was ‘pressing and substantial’, there was a rational connection between the regulation and its objects, and the warnings fell within a range of reasonable alternatives. In finding that the requirements were reasonable, the Court noted that the WHO FCTC ‘stipulates that warning labels "should" cover at least 50 percent and "shall" cover at least 30 percent of the package' (note: this case predates the adoption of the WHO FCTC guidelines on article 11).

C-547/14 – Philip Morris Brands SARL and Others (European Union, 2016)

The Court of Justice of the European Union upheld the validity of the Tobacco Products Directive (Directive 2014/40), which created a regime regulating, among other things, the packaging, labelling, and product contents and disclosure rules for tobacco products. The Directive included requirements for large graphic health warnings covering 65% of both the front and back of the external pack surface. In relation to the packaging and labelling requirements of the Directive, the Court found they were proportionate to the aim of the regulation in partially harmonising tobacco product regulation across the internal market while ensuring a high level of health protection, and to any interference with freedom of expression. In finding that the warnings were proportionate, the Court stated that ‘human health protection – in an area characterised by the proven harmfulness of tobacco consumption, by the addictive effects of tobacco, and by the incidence of serious diseases caused by the compounds those products contain that are pharmacologically active, toxic, mutagenic and carcinogenic – outweighs the interests put forward by the [tobacco companies].’ It noted that the Guidelines to Article 11 of the WHO FCTC recommended that Parties adopt warnings that cover ‘more than 50%’ of the pack, and that the choice of warning size in the Directive had been based on criteria derived from those recommendations. The Court considered that the WHO FCTC guidelines were based on the ‘best available scientific evidence’, and were ‘intended to have a decisive influence on the content of the rules adopted in the area under consideration’. The Court also ruled that Parties were free to adopt stricter regulations regarding those areas of the pack that were not harmonised by the Directive, including standardized packaging and colour restrictions on the remainder of the pack surface. The remaining aspects of this case are discussed here.