The cases below illustrate how bans on smoking in public places and workplaces 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.

National Confederation of Commerce of Goods, Services, and Tourism and National Confederation of Tourism v. Paraná, Direct Action of Unconstitutionality 4.351; National Confederation of Commerce of Goods, Services, and Tourism v. Paraná, Direct Action of Unconstitutionality 4.353 (Federal Supreme Court of Brazil, 2020)

The National Confederation of Commerce of Goods, Services, and Tourism, and the National Confederation of Tourism, brought a joint case against the State of Paraná in Brazil in relation to a tobacco control law that bans smoking in public or private collective environments. The National Confederation of Commerce of Goods, Services, and Tourism also brought a separate case against the State of Paraná in respect of the same law.

In both cases, the Federal Supreme Court of Brazil unanimously found that the legislative assembly of Paraná did not exceed its mandate to legislate for the protection of public health. The Court also found that the law did not offend fundamental freedoms because it did not prohibit an individual's right to use tobacco products, and that it respected the rights of non-smokers and the protection of health. Ultimately, the Court upheld the legislation.

Claim of unconstitutionality filed by over 5000 citizens against Article 3 of Law No. 28705, Docket 00032-2010-PI/TC, 19 July 2011 (Constitutional Court of Peru)

A group of five thousand individuals brought a legal action against a law which banned smoking in all enclosed public spaces and in open spaces of health and education institutions. The group argued that the ban unreasonably restricted the right of smokers to free personal development, as well as the right to free enterprise and free private initiative.

The Court held that neither of these rights was absolute. They could be narrowed for other constitutionally valid ends, including health. The Court noted that smoking was addictive and caused irreparable harm, and the restriction on personal autonomy and free enterprise/private initiative was minimal, as it only regulated where smoking could take place. The Court emphasised the importance of the right to health under the Peruvian constitution and international law, finding that the WHO FCTC was a human rights treaty with ‘constitutional rank’, because it outlined the content of a state’s duty to protect the right to the highest attainable level of health. The Court found that it was therefore not only constitutionally valid to implement the WHO FCTC, but constitutionally obligatory.

The Court found that the smoke-free law was proportional to this constitutionally obligatory end of implementing the right to health, because it was suitable to reducing tobacco use; there was scientific evidence that a public smoking ban would be effective in reducing smoking and exposure to tobacco smoke; there was no equally effective alternative; the harm from smoking was large; the utility from smoking was non-essential; and banning smoking in public places was a minor limitation on freedom of commerce and autonomy. The Court rejected an argument that there should be an exception for smokers-only establishments; it found that the law was not just aimed at the protection of non-smokers but also had the purpose of encouraging smokers to quit and limiting the occupational exposure of employees. The Court considered it valid to limit the second-hand exposure of employees even if they were smokers themselves, as second-hand workplace exposure would still expose workers to significantly more health risks than they would face from their own personal behaviour and the smoker would not necessarily have the bargaining power to refuse such working conditions. The Court also rejected an argument that the open-air spaces of health and educational establishments should be excluded, as the aim of denormalising smoking in such establishments was a valid consideration.

Miroslav Grcev and Stamen Filipov to the Constitutional Court (Former Yugoslav Republic of Macedonia, 2009) 

The Constitutional Court of Macedonia heard a challenge to a ban on smoking in public places, which also banned smoking in private sector catering facilities and required private sector hotels to have smoking rooms limited to no more than 30% of the total number of rooms. The Court held that the smoking ban did not infringe on the right to personal autonomy or the right to free market decision-making. The law did not infringe the right to personal autonomy because it did not prevent smokers from accessing public places, nor did it interfere with the personal decision to smoke. Instead, it merely regulated smoking in public places so as to take into account the constitutional duty of smokers not to jeopardise the life and health of others. The Court also found that the smoking ban in private sector catering facilities and the restriction on smoking rooms in hotels did not violate the right to free market decision-making, as this right was not absolute and was subject to other constitutional rights and duties. In arriving at its decision, the Court relied on the importance of WHO FCTC implementation, and the right to health as enshrined in the International Covenant on Economic, Social and Cultural Rights.

Case 2158-2009 of the Constitutional Court of Guatemala (Guatemala, 2009) 

The Constitutional Court of Guatemala held that a ban on smoking in enclosed public places did not violate the constitutional freedom of commerce, the right to personal security, or the right to equality, and was within the power of the legislature. The Court emphasised that health was a fundamental right, recognised in international treaties and in the Guatemala Constitution, and that the State had a constitutional duty to oversee the health of its people as a public good. Signature, ratification, and implementation of the WHO FCTC was part of the State’s public policies to fulfil this fundamental right. The Court emphasised that the State was required under article 8 of the Convention to implement effective measures to protect people from exposure to tobacco smoke.

The Court found that the ban did not interfere with freedom of industry and commerce. The measure was not aimed at regulating the manufacture, production, distribution, and marketing of tobacco products, but rather aimed at regulating consumption to protect the right to health of consumers and non-smokers. The Court also found that the law was sufficiently precisely defined and therefore did not interfere in any way with personal security rights; that an exception for a small number of smoking rooms in hotels did not discriminate against other establishments; and that the legislature had the power to set fines for breaches of the law.