Courts have recognised that WHO FCTC implementation furthers the realisation of human rights. For example, measures which aim to protect people from the health consequences of tobacco consumption and exposure to tobacco smoke advance the fulfilment of the rights to life and health. A number of legal challenges have reaffirmed these connections between the WHO FCTC and human rights:

In BAT Uganda Ltd v Attorney General, et al. No. 46 of 2016 (Constitutional Court of Uganda, 2019), the Court unanimously rejected a legal challenge brought by British American Tobacco (BAT) against the Tobacco Control Act 2015 of Uganda. The Court found that the legislation was enacted with the objective of implementing the WHO FCTC and that Uganda was putting into effect the provisions of its constitution which protect the rights of its citizens including the right to life. Additionally, the Court found that the government of Uganda has a duty under the Constitution to ensure the right to a clean and healthy environment, which includes the right to clean air free from tobacco smoke and other air pollutants, and that the right to life “cannot be separated from the enjoyment of good health”.

In 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. The Court noted that smoking was addictive and caused irreparable harm and 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 held that the smoke free law was proportional to the constitutionally obligatory end of implementing the right to health.

In Legislative Consultation with Constitutional Division of the Supreme Court No. 2012-003918 (Costa Rica, 2012), the Constitutional Division of the Supreme Court of Justice of Costa Rica upheld legislation which included provisions that created a comprehensive ban on advertising, promotion and sponsorship of tobacco products and prohibited smoking in enclosed public places and certain private places. The Court found that the WHO FCTC, as an international convention with the goal of protecting public health, was an instrument which had the purpose of protecting fundamental rights. The Court also found that the prohibition protected non-smokers’ right to health. The Court noted that the legislation implemented the WHO FCTC and was, therefore, in line with the objective of ensuring public health in line with its international obligations on human rights matters.

The tobacco industry often invokes commercial rights and interests, such as freedom of commerce, trade, and enterprise, and property (including intellectual property) rights in challenging tobacco control measures. In some cases, tobacco companies may also invoke personal rights of consumers of tobacco products, or of persons employed by the tobacco industry. Legal challenges may also be based on procedural rights. A number of courts have examined these claims and their relationship with public health and WHO FCTC implementation.

Freedom of enterprise, commercial speech, and property rights

In Judgment C-830/10, 20 October 2010, Constitutional Court of Colombia (Colombia, 2010), the Constitutional Court of Colombia held that a comprehensive ban on the advertising and promotion of tobacco products did not violate freedom of enterprise. The Court considered that freedom of enterprise was not an absolute right and could be validly limited by the state for social objectives, the purpose of the right being to strike a balance between free market principles and state intervention. The Court considered that a restriction on freedom of enterprise was justified because the purpose of the advertising ban was to protect public health and the environment and contributed to the protection of the fundamental rights of life, health, and physical integrity, as well as collective guarantees to a healthy environment.

In British American Tobacco and Ors v Department of Health, EWHC 1169 (High Court, England and Wales, 2016) and British American Tobacco (UK) Limited and Ors v UK Department of Health, EWCA Civ 1182 (Court of Appeal, England and Wales, 2016), various tobacco companies and tipping paper manufacturers challenged the United Kingdom’s tobacco standardized (plain) packaging laws. The High Court of England and Wales dismissed the challenge on all grounds. The complainants appealed to the Court of Appeal which upheld the High Court’s decision in its entirety. The Court of Appeal rejected arguments that the plain packaging regulations violated protections for property rights under Article 1, Protocol 1 of the European Convention on Human Rights (ECHR) and Article 17 of the Charter of Fundamental Rights of the European Union (CFREU).

On Article 1, Protocol 1 of the ECHR, the Court found that the plain packaging regulations were a ‘control of use’ rather than a ‘deprivation of property’. The Court also rejected arguments that plain packaging impaired the ‘essence’ of the right to property under Article 17 of the CFREU. The Court reiterated that the essence of a trademark right was the negative right to exclude others from using similar marks, not to use the trademark. The Court also found that, like Article 1 Protocol 1 of the ECHR, Article 17 of the CFREU recognised that property rights were not absolute and could be regulated for public interest purposes. The Court found that the regulations are proportionate to their public health aims.

In British American Tobacco South Africa (Pty) Ltd v Minister of Health (South Africa, 2012), the Supreme Court of Appeal of South Africa held that a comprehensive ban on advertising and promotion of tobacco products, including by one-to-one communications between consumers and tobacco manufacturers, importers, wholesalers and retailers, did not violate the constitutional right to freedom of expression, which protects commercial speech in South Africa. The Court noted that the protection of public health interest is one of the fundamental rights that can override the interest of an individual including the freedom of expression. It held that the right to freedom of expression was not absolute. The limitation on the tobacco company's speech was reasonable and justifiable, because public health considerations and South Africa's obligations to implement a comprehensive advertising ban under WHO FCTC Article 13 outweighed the economic interests of tobacco companies and the interests of smokers as a group. In reaching its decision, the Court weighed the low value of commercial speech that seeks to promote a harmful and addictive product against the fundamental rights to health care and a healthy environment under the South African constitution.

Personal rights of consumers

In Miroslav Grcev and Stamen Filipov to the Constitutional Court (Former Yugoslav Republic of Macedonia, 2009), the Constitutional Court of Macedonia held that a ban on smoking in public places did not infringe the right to personal autonomy because it does not prevent smokers from accessing public places or interfere with their decision to smoke. Instead, it merely regulates smoking in public places by taking into account the constitutional duty of smokers not to jeopardise the life and health of others. In arriving at its decision, the Court relied on the importance of WHO FCTC implementation, and the right to health enshrined in the ICESCR.

In British American Tobacco South Africa (Pty) Ltd v Minister of Health (South Africa, 2012), the Supreme Court of Appeal of South Africa held that a comprehensive ban on advertising and promotion of tobacco products, including by one-to-one communications between consumers and tobacco manufacturers, importers, wholesalers and retailers, did not violate the constitutional right of tobacco consumers to “receive or import information or ideas” under the right to freedom of expression. The Court found that consumers could still access information about tobacco products at the point of sale, such as information about new products and package changes. The Court noted that the purpose of the ban was to protect public health and ultimately held that “limiting the right to freedom to receive or import information to consenting adult tobacco consumers on one-to-one communication with manufacturers or wholesalers [was] reasonable and justifiable”.

Procedural rights

In British American Tobacco v Cabinet Secretary for the Ministry of Health and Others (Court of Appeal of Kenya, 2017 and Supreme Court, Kenya, 2019), British American Tobacco (BAT) challenged the Tobacco Control Regulations (2014) as a whole. BAT argued, among other things, that provisions limiting interactions between public officials and the tobacco industry were discriminatory in violation of the constitutional right to freedom from discrimination. The Court of Appeal rejected this argument and found that limiting interactions between the tobacco industry and public authorities was not discriminatory. The Kenyan Constitution does not prevent distinctions based on legitimate public policy grounds. The Court was satisfied that the limitation of BAT’s rights was justifiable, reasonable and necessary under the Kenyan Constitution to ensure the enjoyment of rights and fundamental freedoms by all individuals.

The Court of Appeal also found that limiting interactions between the tobacco industry and public authorities did not violate the right to fair administrative action or the right to public participation. There was no infringement of the right to fair administrative action because the government had acted consistently with procedural requirements and rights set out in the Statutory Instrument Act and the Constitution. The Court of Appeal also found that BAT had had an adequate opportunity to make its views known through the stakeholder consultation process that had been held by the government and that BAT’s right to public participation was, therefore, not infringed.

The Court of Appeal's decision was upheld by the Supreme Court of Kenya.