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This page looks at common arguments in challenges to tobacco-free generation legislation in domestic courts. Tobacco-free generation legislation proposes to create a "tobacco-free generation" generally by banning the supply of tobacco to those born in or after a specified year.
1. Tobacco-free generation legislation under the WHO FCTC
While the WHO FCTC does not explicitly refer to tobacco-free generation legislation as a measure to reduce the demand for or supply of tobacco, such legislation aligns with article 2.1 of the WHO FCTC. Article 2.1 encourages Parties to implement measures beyond those set out in the WHO FCTC and its protocols in order to better protect human health, and states that Parties are not prevented from imposing stricter tobacco control measures that are consistent with the WHO FCTC's provisions and adhere to international law. At the tenth session of the Conference of the Parties (COP), the COP established an expert group on "tobacco control measures that are forward-looking and could be contemplated within the scope of Article 2.1 of the WHO FCTC". The expert group is due to report to the 11th session of the COP.
Article 2.1 should be read in light of articles 3, 4, and 5 of the WHO FCTC. Article 3 of the WHO FCTC provides that the objective of the Convention is to "protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures… in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke." Article 4.4 provides that "Comprehensive multisectoral measures and responses to reduce consumption of all tobacco products at the national, regional and international levels are essential so as to prevent, in accordance with public health principles, the incidence of diseases, premature disability and mortality due to tobacco consumption and exposure to tobacco smoke." Article 5.1 provides that "Each Party shall develop, implement, periodically update and review comprehensive multisectoral national tobacco control strategies, plans and programmes in accordance with this Convention and the protocols to which it is a Party." Toward this end, Article 5.2(b) further provides that "each Party shall, in accordance with its capabilities… adopt and implement effective legislative, executive, administrative and/or other measures and cooperate, as appropriate, with other Parties in developing appropriate policies for preventing and reducing tobacco consumption, nicotine addiction and exposure to tobacco smoke."
Article 2.1 accordingly empowers Parties to adopt tobacco control measures and encourages them to continually strengthen tobacco control measures to fulfill the WHO FCTC’s objective of protecting present and future generations from the devastating health, social, environmental, and economic effects of tobacco (Article 3 of the WHO FCTC). Tobacco-free generation laws are one measure that some Parties have adopted in order to do so.
2. Common grounds of challenge and successful responses
Grounds of challenge against tobacco-free generation legislation so far include:
- Domestic conflict of laws – where opponents have argued that the relevant legislation is invalid as it is inconsistent with existing laws at a higher level of government.
- Age discrimination arguments – where opponents have argued that the relevant legislation is invalid as it discriminates based on year of birth.
Responses which have successfully been used against such challenges include (See Brookline (2024)):
- The relevant legislation complements, rather than conflicts with, higher government laws.
- Distinguishing based on year of birth is justifiable as it achieves the legitimate state interest of reducing tobacco consumption.
3. Illustrative case examples
There is currently limited case law in relation to tobacco-free generation laws in WHO FCTC Parties. However, the following cases from a non-Party to the WHO FCTC and from a local government unit in the Philippines illustrate some of the arguments that may be raised in legal challenges to such laws.
Six Brothers Inc v Town of Brookline (US, 2024)
The Massachusetts Supreme Judicial Court affirmed the validity of a by-law prohibiting the sale of tobacco products to individuals born on or after 1 January 2000 in the Town of Brookline (Town). The by-law effectively created an incremental ban on the sale of tobacco products in the Town over time. The by-law was challenged by retailers (Plaintiffs) who wanted to continue selling tobacco products in the Town to those aged 21 and older.
The Plaintiff raised two arguments that were dismissed by both the Massachusetts Superior Court at first instance and the Supreme Judicial Court on appeal. First, the Plaintiffs argued that the by-law was invalid as it conflicted with (i.e., was pre-empted by) a state law that raised the minimum age for purchasing tobacco products from 18 to 21. Second, the Plaintiffs argued that the by-law violated equal protection guarantees under the Massachusetts Declaration of Rights by creating an arbitrary age division that only allowed tobacco products to be sold those born before 1 January 2000.
On the issue of pre-emption, the Supreme Judicial Court interpreted the state law as retaining the authority of local governments to enact by-laws restricting the sale of tobacco products in their towns, including complete bans, as long as they did not conflict with the state law’s minimum age provision. The Supreme Judicial Court upheld the validity of the by-law as it found that its incremental prohibition on tobacco product sales in the Town over time did not conflict with this provision. Further, the Supreme Judicial Court concluded that the purpose of the state law, to prohibit the sale of tobacco products to those under 21, remained achievable alongside and thus did not pre-empt the by-law, as both laws aimed to protect against the harms of tobacco use, particularly among young people.
On the issue of equal protection, the Supreme Judicial Court held that the by-law did not discriminate based on year of birth as it did not burden a fundamental right or target a historically disadvantaged group. The by-law's classification based on year of birth was rationally related to the legitimate state interest of curbing tobacco use, especially among minors. The Supreme Judicial Court rejected the Plaintiffs’ argument that the 1 January 2000 cutoff date was arbitrary as drawing a line is a legislative necessity. Further, the by-law provided a rational alternative to an immediate and outright ban on the sale of tobacco products, as it provided a gradual adjustment period to those already addicted to tobacco, while giving retailers time to adapt. The by-law was therefore upheld valid as it did not violate equal protection guarantees under the Massachusetts Declaration of Rights.
Philippine Tobacco Institute v City of Balanga (Philippines, 2019)
The Philippine Tobacco Institute (PTI) challenged a local government ordinance, which proposed a tobacco-free generation by prohibiting the sale of tobacco products to any person born on or after 1 January 2000. PTI is an association of tobacco manufacturers that has a history of challenging Philippine government tobacco control measures that are aligned with the WHO FCTC. PTI argued that the ordinance was invalid as it contravened national legislation, violated the equal protection clause in the Philippine Constitution and was unduly oppressive.
The Regional Trial Court of Bataan ruled in favour of PTI, finding that the ordinance discriminated between adults born before and after 1 January 2000, and that it conflicted with national laws permitting the sale of tobacco to non-minors. It also found that a provision in the law extending criminal liability to parents and those exercising parental authority violated substantive due process rights.