Laura LlambÍ, Diego Rodriguez, Beatriz Goja, Adriana Rodriguez, Ana Lorenzo
Over the past few decades, Uruguay has secured great achievements in tobacco control, followed in turn, by favourable health outcomes. After becoming the first indoor-smoke-free country in the Americas region in 2006, a comprehensive tobacco control law was passed in 2008. By this time, the Uruguayan government had already enacted the world’s largest pictorial health warning labels and implemented regulations which permitted only one variant per brand, which is still a unique regulation at present. After various unsuccessful domestic legal challenges against these regulations, Philip Morris International (PMI) set a request of arbitration in 2010 with the International Centre for Settlement of Investment Disputes (ICSID) under the Uruguay-Switzerland bilateral investment treaty. The company claimed that the one variant per brand and the pictorial health warnings infringed the intellectual property provisions protected by this trade agreement.
After 6 years , the ICSID rejected PMI’s claims and ruled that Uruguay had the sovereign right to protect public health over any other corporate commercial rights. During this 6 year period, strong alliances were built between government, civil society, advocates and academic experts, as well as strong support provided by the international tobacco control community.
In 2020, plain packaging of tobacco products was implemented in Uruguay, a policy which has proved to protect consumers and future smokers from misleading terms, increasing risk perception and avoiding fancy design features attractive to kids. Countries which implemented plain packaging before Uruguay, have reported tobacco industry strategies in reaction to it. Design features, logos and imagery were introduced inside packs as well as design changes to the cigarette sticks as a last marketing vehicle between industry and consumers. With this in mind, Uruguay’s plain packaging regulations included comprehensive standardisation of the inside of packs, cigarette sticks themselves and prohibition of extra contents. Uruguay has long been regarded as a global tobacco control leader and these regulations were consistent with such leadership.
That is why it was shocking when, 2 years later, on September 2nd, 2022, the Uruguayan government announced a decree to modify the plain packaging regulation, allowing branding, logos, colours, textures and other features in the inside of packs. This decree was the fourth of several changes in tobacco regulation in the present administration (other changes include the revoking of the heated tobacco products (HTP) sales ban; elimination of a ban on tobacco industry tax waivers, dismissing a proposal of pictorial health warnings on HTP packaging, and allowing the Vapers Association to promote vaping, in a country where e-cigarette sales are banned) which tobacco control experts and civil society have opposed, and appear contrary to the provisions of the WHO Framework Convention for Tobacco Control. The decree had strong support from officials from several ministries, including the Ministry of Health, together with suspected front groups which promoted misleading arguments about contraband tobacco, the illegal tobacco market and unemployment as a direct result of tobacco control policies. Fifty-eight institutions including academic groups, scientific societies, medical unions, civil society and well-respected scientific leaders from other fields publicly opposed this decree, which was described as a “step backwards in Public Health”. A week after the decree was passed, the President of Uruguay disclosed to the media, that the decree was enacted in response to local tobacco industry requirements.
Civil society did not stay quiet. The Uruguayan society of tobacco studies (Sociedad Uruguaya de Tabacologia – SUT), a scientific multidisciplinary civil society organisation which has played an active role in Uruguay’s tobacco control achievements to date, including the PMI bilateral treaty challenge, filed a lawsuit just a few weeks later. The legal challenge had two different strands. First, an appeal for revocation was presented to the President of Uruguay, but the deadline for the President to act in this regard has now passed, meaning that the case will have to be solved at an administrative court, which could take years to reach a decision. The second strand was a direct appeal for protection or “amparo” filed at a Family Court. These kinds of appeals for amparo have immediate suspensive effects but are unlikely to be successful in Uruguay. SUT’s arguments were mostly based, not in tobacco control national law or international treaties but on the Child and Adolescent National Code. This Code explicitly states that government should protect children and adolescents from the stimuli of tobacco and other drugs. Considering that branding, logos, design features are associated with smoking behaviour, including smoking uptake among youth, a comprehensive, evidence-based case was presented. On October 19th, the Family Court ruled in favour of SUT’s claim, meaning that the decree allowing in-packet marketing features cannot go ahead until higher courts come to a final decision.
This case illustrates once again, in the same country, how an engaged local civil society is fundamental to successfully defending public health policies and people’s rights from tobacco industry interference regardless of government administrations.
Professor Laura LlambÍ, is the Head of Internal Medicine and Tobacco Cessation Unit at the University of the Republic in Uruguay. Diego Rodriguez is the Coordinator at the Internal Medicine and Tobacco Cessation Unit at the University of the Republic in Uruguay. Beatriz Goja is the President of the Uruguayan Society of Tobacco Studies, whilst Adriana Rodriguez is the former President and Ana Lorenzo is a current member.