The cases below illustrate how retail display bans and point of sale advertising bans 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.

Nueva Walmart de México v Mexico (Mexico, 2023)

Mexico's Fourth Collegiate Court in Administrative Matters of the First Circuit upheld the dismissal of Walmart Mexico's challenge to a decree amending Mexico's tobacco control law, which imposes a total ban on the promotion, advertising and sponsorship of tobacco products, including at point-of-sale, among other things.

Walmart Mexico sought to suspend the decree so that it could continue operating its business as usual, which included displaying tobacco products at the point-of-sale. At first instance, the District Judge refused to suspend the decree. Walmart Mexico appealed the District Judge's decision, arguing that the purpose of point-of-sale display is to make consumers aware of information about tobacco products, including the damage caused by tobacco consumption and its secondary effects. Walmart Mexico also argued that the District Judge's reference to the WHO FCTC overlooked that it does not promote or advertise tobacco products, nor sponsor any tobacco brands.

The District Judge's decision was upheld on appeal, denying suspension of the decree. In particular, the Court rejected Walmart Mexico's argument that the only way consumers can be informed about the harmful effects of smoking is through point-of-sale display, as such information can be disseminated through other means, including the media and internet. The Court also rejected Walmart Mexico's contention that it does not promote or advertise tobacco products as the placement of tobacco products on shelves, counters, displays and at point-of-sale, among other areas, is a form of advertising and promotion. In so doing, the Court reaffirmed the importance of Mexico's international obligations under the WHO FCTC and recognised that retail display bans implement article 13 of the WHO FCTC.

British American Tobacco Panama v. Executive Decree No. 611 (Panama, 2014)

The Supreme Court of Justice in Panama ruled that a decree made by the executive extending an existing legislative ban on tobacco advertising, promotion and sponsorship to the display of tobacco products at the point of sale was consistent with the Constitution of Panama. British American Tobacco (BAT) Panama had argued that the Decree infringed constitutional protections for freedom of commercial expression, rights to private property, and constitutional protections for free choice, free competition and the free market. BAT also argued that the decree exceeded the power of the executive, because the parent legislation provided for restrictions on tobacco advertising, promotion, and sponsorship but did not explicitly mention retail display.

The Supreme Court rejected all of these arguments. It found that the right to freedom of expression was not absolute. Limitations on freedom of expression were justified because the measure sought to guarantee health, a need and right of all persons, and because the retail display ban implemented international commitments to preserve world health. It found that there was no infringement of the right to private property as BAT was still able to use, commercialise, contract and engage in other activities with its tobacco products. It found that the Decree was within power because retail display was a form of promotion, which was provided for in the legislation. Finally, it found that the legislation did not in any way impede principles of free choice, free market, or free competition – both sellers and buyers could still participate independently in a market based on supply and demand and governed by common rules.

British American Tobacco Panama et al. v. Panama (Panama, 2016)

British American Tobacco Panama (BAT) and other tobacco companies filed an action in the Administrative Chamber of the Supreme Court of Justice of Panama seeking a declaration of nullity with respect to Decree No. 611. The decree prohibits tobacco product displays at the point of sale as part of a comprehensive ban on tobacco product advertising, promotion and sponsorship. BAT argued that the decree violates various laws including the right to property by preventing use of its trademark and consumers' rights to access product information and freedom of choice.

The Court upheld the legality of the decree and found that BAT and the tobacco companies were not prevented from registering or using their trademarks. The Court also found that the rights of consumers to information and freedom of choice were not violated because mandatory labels and warnings made consumers aware of the nature, composition, content, weight, origin, expiration date, and toxicity of tobacco products. In coming to its decision, the Court was guided by the WHO FCTC and the Guidelines for Implementation of Article 13 in determining the application of a total prohibition of tobacco product advertising, promotion and sponsorship.

R v Mader's Tobacco Store (Canada, 2013)

The Provincial Court of Nova Scotia upheld a ban on point of sale display of tobacco products. The law allowed a plain-text list of types of cigarettes sold and their prices, and allowed customers to view tobacco products on request. The Court considered the ban to be a justified interference with freedom of expression because customers could still easily access information about a retailer's tobacco products and so the impairment on expression was minimal, the expressive activity involved was not closely linked to the core values protected by the constitutional right to free expression, and the legislation had a rational connection with the objective of reducing tobacco consumption and therefore tobacco-related disease, disability and death. The Court cited the WHO FCTC and noted that ‘it is abundantly clear that there is recognition on an international level that tobacco use is harmful and that a ban on tobacco advertising (including displays) is a legitimate means by which to achieve the goal of reduced tobacco consumption’. The Court also acknowledged that while the display ban was one component of a comprehensive strategy to reduce tobacco consumption, and its effects therefore may not be measurable in the short term, the addictive nature of tobacco and the role of retail display bans in removing cues for smoking and denormalising tobacco meant that the potential benefits of the measure were high.

Philip Morris Norway v Health and Care Services of Norway (Norway, 2012)

The Oslo District Court held that a ban on the display of tobacco products was not a measure ‘equivalent to a quantitative restriction’ on the free movement of tobacco products into Norway under the European Economic Agreement ('EEA') (which is supervised in part by national courts). Norway had long had a comprehensive ban on advertising, promotion and sponsorship; the retail display ban sought to remove an exception for display of products at the point of sale.

Philip Morris Norway had argued that the measure was equivalent to a quantitative restriction because it discriminated against imports from other EEA states as opposed to domestic products. Although Norway does not have any domestic brands of tobacco products, and the retail display ban applied to all tobacco products regardless of origin, Philip Morris argued that the measure favoured formerly Norwegian brands which had since been acquired by multinational companies. Philip Morris argued that the retail display ban prevented advertising, and therefore froze the market in favour of established brands as compared to new brands entering the market. Philip Morris argued that such established brands were more likely to have been formerly Norwegian.

The Court held that the measure was not equivalent to a quantitative restriction, because it did not affect the marketing of products from other EEA states to a greater extent than the marketing of domestic tobacco products. It considered that the comparison between incumbent and new brands was irrelevant provided there was no discrimination between exports and domestic brands (of which there were none in Norway); and that in any case there was no evidence that the ban favoured established brands, nor any evidence that new brands were more likely to be ‘foreign’.

It also held that the ban was suitable and necessary to the protection of public health, and that no less interventionist measure could have yielded a corresponding result. The Court found that tobacco use was highly injurious to health, and that there was evidence to support the effectiveness of a retail display ban. The Court emphasised that the evidence supporting a measure did not need to be 'scientifically certain' for the measure to be proportional to a legitimate aim, as long as there was a 'reasonable degree of consensus' about the effectiveness of the measure. It considered that in the case of the display ban, there was a reasonable degree of consensus around the effectiveness of a display ban in reducing smoking, as demonstrated in the documents of various international organisations, such as the WHO FCTC Article 13 guidelines, and by expert evidence adduced by Norway. The Court also recognised that tobacco control measures work over the long term and as part of a broad spectrum of complementary measures, and therefore rejected Philip Morris’ argument that it was necessary for Norway to demonstrate changes in short-term econometric analyses of the measure. Finally, the Court noted that partial display bans would not have had the same effect in removing advertising and denormalising tobacco products, and could not therefore be considered an equally effective alternative.