Ana María Palacio Valencia (PhD), International Legal Consultant
On 5 March 2020, Panama’s Supreme Court dismissed a constitutional action (Constitutional Amparo) brought against the Ministry of Health by the media outlet La Prensa.
La Prensa had requested that the Court revoke a fine of PAB 10,000 (around USD 10,000) imposed by the Ministry of Health for violating a 2008 prohibition of any advertising, promotion, and sponsoring of tobacco and its products, including through indirect or subliminal means. The Supreme Court dismissed the challenge and upheld the fine.
The Ministry of Health’s decision to fine La Prensa
The Ministry of Health fined the company in early 2019 after finding that an article titled ‘Opening of New Alternatives for Adult Smokers’ published in La Prensa’s financial magazine was sponsored by Philip Morris Panama.
The Ministry of Health found that the article was in breach of the 2008 ban because its comments on Panama’s draft measures for tobacco control constituted tobacco advertising, promotion or sponsorship.
In support of its decision, the Ministry also emphasised that the article was likely to confuse the public by making misleading claims about the safety of heated tobacco products and about the impact of tobacco control measures on illicit trade.
First, the Ministry argued that the article had incorrectly stated that alternative products have been scientifically proven to be a better option than continuing to smoke. The Ministry of Health explained in its submission to the Supreme Court that the new alternatives referred to in the article were known in the global markets as heated tobacco products. The Ministry argued that claims in the article that these products are less harmful to health or that they involve less exposure to toxicants when compared to traditional cigarettes might cause people to incorrectly believe that these products are safe. According to the WHO, there is no scientific evidence to prove claims of reduced risk regarding heated tobacco products.
Under Panama’s precautionary approach to public health, the distribution of heated tobacco products has been prohibited in Panama since May 2018.
The Ministry of Health also defended its decision on the basis that the article made the false assertion that: “if the scientific evidence on heated products were considered, Panamanians would have a better option to reduce the harm caused by the consumption of cigarettes, contributing positively to public health in the country”. The Ministry argued in its decision and later submission to the Court that there was not enough evidence that these new forms of tobacco are better alternatives than smoking because their time in the market is insufficient to assess their long-term effects on the population’s health.
Second, the Ministry reasoned that the article’s claim that draft regulatory measures could create additional opportunities for the illegal market of tobacco products could confuse the public. The Ministry maintained there is no evidence that tobacco control measures applicable in Panama have increased the illicit trade of tobacco products. The Ministry noted that estimates of illegal trade by the tobacco industry involve a conflict of interests.
La Prensa’s challenge to the fine
La Prensa challenged the decision to enforce the ban on tobacco advertising, promotion and sponsorship. It alleged several breaches of its constitutional rights, particularly due process and freedom of expression and information. It claimed that the Directorate of Public Health within the Ministry imposed the fine in violation of La Prensa’s fundamental right to a due process because it did not allow the company an opportunity to defend itself during the administrative procedure.
According to La Prensa, the article was journalistic in nature and fell within the scope of the economic activity. La Prensa alleged that the article provided only opinions and considerations about the proposed regulation. It claimed that the article was an exercise of its freedom of expression and information rather than sponsoring, promotion or publicity of tobacco products. The company also argued that the prohibition was designed for advertising companies and the persons benefiting from such advertising, promotion or sponsoring. La Prensa contended that its actions fall within the scope of the legal prohibition because it did not perform deliberate acts of promotion, advertising or sponsoring of tobacco products.
The decision of the Court
In its judgement, the Supreme Court only addressed the claim of violation of due process, finding that a different jurisdiction needed to tackle other claims because they referred to the legality of the measure imposed by the Ministry of Health.
The Court found that the Ministry acted in accordance with the requirements encompassing the fundamental right to a due process as set in its previous judgments. It asserted that the measure was imposed by the competent authority, following the applicable administrative laws and procedures, including the prohibition of penalising a person more than once for the same contravention. The Court maintained that the Ministry acted under the scope of its public administrative powers for imposing fines.
The Court also found that, when acting ex officio, the public authority has the powers to declare an infringement based on its inspection record or recognition, notwithstanding the legal recourses applicable to the administrative decision. The Court established that, following the due process standard in Panama, the Ministry’s decisions was duly reasoned and supported by the total prohibition of advertising, promotion and sponsoring of tobacco products.
One magistrate dissented, arguing that there was a violation of due process. He interpreted that the Sanitary Code regulations required the Ministry to allow La Prensa an opportunity to defend itself during the administrative procedure imposing the fine. La Prensa also appealed the administrative fine. This decision was pending at the time the Supreme Judicial Court dismissed the constitutional action.
Significance of the decision
This decision upholds Panama’s ability to enforce its comprehensive ban on advertising, promotion, and sponsorship in light of the evolving tactics of the tobacco industry, including in promoting novel tobacco products. It also provides an example of one of the ways in which the tobacco industry seeks to circumvent bans on tobacco advertising, promotion and sponsorship, by publishing ‘advertorials’ that ostensibly constitute legitimate political expression, but in fact are sponsored publications with the goal of promoting a tobacco product.
 Judgement of the Judicial Supreme Court of Panama, (Plenary), 5 March 2020.