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This page looks at common arguments in challenges to retail display bans in domestic courts. The retail display of products is a form of tobacco advertising, promotion, and sponsorship, and challenges to retail display bans therefore overlap with challenges to comprehensive bans on tobacco advertising, promotion and sponsorship. This page covers additional arguments that are specific to challenges to retail display bans, which may be framed slightly differently to challenges to bans on other forms of tobacco advertising, promotion and sponsorship.
1. Retail display bans under the WHO FCTC
Displaying tobacco products at the point of sale is a common means of promoting tobacco products, particularly in jurisdictions where other forms of advertising, promotion and sponsorship have been banned. Retail display bans aim to remove these forms of advertising and promotion by restricting the display of tobacco products and any related advertising or promotion at the point of sale, allowing for ‘only the textual listing of products and their prices, without any promotional elements’ (Article 13 Guidelines)
The article 13 guidelines note that ‘[d]isplay of tobacco products at points of sale in itself constitutes advertising and promotion. Display of products is a key means of promoting tobacco products and tobacco use, including by stimulating impulse purchases of tobacco products, giving the impression that tobacco use is socially acceptable, and making it harder for tobacco users to quit.’ They recommend a total ban on ‘any display and on the visibility of tobacco products at points of sale’. Display of tobacco products at point of sale is a form of advertising, promotion and sponsorship listed in the indicative list of forms of advertising in the appendix to the Article 13 guidelines.
2. Common grounds of challenge and responses
Retail display bans have been challenged on the grounds of
- Freedom of commercial speech/expression – either in terms of ability to communicate or consumers’ ability to receive marketing information
- Freedom of trade/movement of goods – specifically, the argument that retail display bans restrict the ability of new entrants to the market and therefore favour domestic products.
- Freedom of choice/competition in the market
- Private property rights in the marketing/branding used in the display
Responses that have successfully been used by parties include
- The restriction on freedom of commercial speech/expression is justified by public health - the interference is minimal because consumers are still able to receive information about brand names and prices and the value of speech relating to commercial marketing is low; while the public health benefits of reducing tobacco-related death and disease are large (See below BAT Panama; R v Mader’s Tobacco Store).
- There is no evidence that retail display bans favour domestic products, provided they apply equally to domestic and imported products. In particular, claimants have not been able to show on the facts that retail display bans favour incumbent brands. (See Philip Morris Norway)
- Retail display bans do not restrict freedom of choice or competition because consumers are still able to view and select brands at point of sale (See BAT Panama).
- Retail display bans do not infringe any relevant property rights (See BAT Panama)
- The public health justification for retail display bans is supported by evidence, including the evidence-based article 13 and its guidelines (See Philip Morris Norway, R v Mader’s Tobacco Store).
3. Illustrative case examples
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.
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.
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.
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 denormalizing tobacco meant that the potential benefits of the measure were high.