Constitutional Court
13 February 1997
Facts
The case was initiated by the Parliament and a group of Parliament members, who asked to investigate whether the norms of the Laws on Alcohol Control and the Law on Tobacco Control, which prohibit the advertisement of alcoholic beverages and tobacco products in Lithuania, do not contradict the Constitution, as well as whether the Government's resolution, which establishes the criteria for the classification of information as an alcoholic advertisement, is not in conflict with the Constitution.
Complaint
The applications were based on the grounds that the dissemination of information about legal activities should not be unconditionally prohibited, but that the statutory definitions also recognise information not related to the consumption of alcohol or tobacco products as advertising. There is an uneven playing field for economic operators. Denying the right to information deprives the choice of a less harmful product and therefore does not contribute to health protection. Persons who have a negative attitude towards drinking or smoking cannot be privileged over those who hold a different opinion. It is questionable whether people's health can take precedence over freedom of information, even if that information has the characteristics of advertising. Accordingly, the applicants consider that the contested provisions of the law are contrary to the Constitution. It was also argued that the provisions of the Government resolution are unconstitutional because the freedom of a person to seek, receive and impart information of an advertising nature about alcohol products is restricted by a lower level legal act (not law).
Court’s ruling
The Court found that alcoholic beverages and tobacco products are special purpose goods because their consumption harms human health. This is confirmed by specific medical studies and statistics. The purpose of advertising is to create a favourable image of the products and to encourage, directly or indirectly, their consumption. The law does not prohibit all information on alcoholic beverages and tobacco products but imposes a restriction on commercial information on the products. The scope of the restriction on freedom of information is not defined in the Constitution, but the criteria of legality and necessity in a democratic society should be considered in determining the scope of the restriction. The State regulates economic activity in such a way that it serves the common good, and therefore differentiated regulation of economic activity is possible. Economic activities may be evaluated by the authorities in terms of their benefits to society, but the well-being of the nation should not be perceived in purely material (or financial) terms, nor should it be pursued in a way that is harmful to health. The ban on tobacco and alcohol advertising cannot be seen as discriminating against people or giving them privileges, as such bans do not affect particular groups of people but society as a whole. On the other hand, such a ban is intended to protect consumers from biased information. However, the wording of the contested legislation would allow information which is not directly related to products and their use to be declared product advertising. This would amount to an unjustified, and therefore not allowed restriction on freedom of information.
The law establishes the system of advertising prohibition control bodies and the basis for their competences, empowers the Government to draw up control programmes, to regulate the control procedure, and to supervise the activities of the relevant bodies. This is in line with the competence of the Government, but the mandate to determine the criteria for classifying information as advertising essentially implies the right to decide what information will be considered as advertising and therefore prohibited. This is a delegation of the right to restrict product advertising to the Government.
The Court held that declaring information which has no direct connection with products and their consumption to be advertising, as well as delegating to the Government the task of determining the criteria for classifying information as advertising, is unconstitutional. Freedom to hold opinions and to receive and impart information may not be restricted except by law if necessary to protect health, honour and dignity, private life, morals or the constitutional order.