STF prohibits the use of additives that give aroma and flavor to cigarettes; opposing argument relied on the opinion of an FCA professor
The Brazilian anti-smoking movement recorded an important victory on February 1st, when the Federal Supreme Court (STF) vetoed the use of additives in cigarettes, including those that impart aroma and flavor to the product. According to entities supporting the ban, the purpose of using these substances is to make tobacco more palatable, thus encouraging increased consumption, especially by children and adolescents. The arguments against the interests of the tobacco industry were reinforced by opinions from the professor at the Faculty of Applied Sciences (FCA) at Unicamp, Luís Renato Vedovato, who is also a member of the University's Human Rights Committee.
The Supreme Court's ruling on the matter ended a dispute that began in 2011, when the National Health Surveillance Agency (Anvisa) issued a resolution prohibiting the use of additives in cigarettes. The measure was based on an international treaty formulated in 2003, of which Brazil is a signatory, which suggests that countries prevent the use of these substances. According to Anvisa's standard, which gave companies one year to adapt to the requirements, the inclusion of additives in cigarettes would only be possible if the manufacturer explained the reason and their characteristics.
However, one day before the resolution came into force, the STF minister, Rosa Weber, granted an injunction suspending its effects, in response to a Direct Action of Unconstitutionality (ADI) proposed by the National Confederation of Industry (CNI). “The STF’s decision only came now. Of the ten ministers voting [Luís Roberto Barroso declared himself unable to vote], five were in favor of maintaining Anvisa's resolution and another five were against it. As a result, the ban on the use of additives was maintained”, explains Professor Vedovato.
However, according to him, as the decision was not taken by the majority of members of the Supreme Court, the CNI or tobacco companies can present new actions to the lower courts of the Judiciary. “The fact is that the Supreme Court’s position represented a very important victory for the anti-smoking movement. We cannot forget that the other party had already obtained an injunction and has strong economic power, which makes it easier to cover the high costs of an action of this magnitude. To give you an idea, I went to Brasília nine times throughout the process”, says the FCA professor, who gave the oral argument at the STF representing the World Anti-Tobacco Association.
Pediatric disease
The use of additives that give aroma and flavor to cigarettes, says the professor, represents a risk to people, especially children and adolescents. “The fruit-flavored additive, for example, makes cigarettes more palatable, especially for young people, who end up becoming addicted to tobacco more quickly. A 2010 report by the Surgeon General [USA] shows that 90% of smokers try smoking before the age of 18. Precisely for this reason the World Health Organization considers smoking not only a serious public health problem, but a pediatric disease”, he points out.
In previous years, Vedovato points out, the North American Judiciary was aware of internal documents from the tobacco industry, which indicate how important this issue is for the sector's operations. One of the phrases found in the documentation is as follows: "Several children, when they start, don't like the taste of cigarettes and start coughing. But a cigarette with a flavor, say cherry, may seem better. And it may kill the bad taste of cigarettes. ] for them so they can start sooner."
The arguments presented by tobacco companies in favor of the use of additives, continues the professor, are not sustainable in the face of reality. According to him, the sector claimed that the ban on additives could affect the cigarette trade in Brazil and, consequently, cause unemployment. “It turns out that 88% of Brazilian tobacco production is destined for export. In other words, stricter regulation will not have that much impact on the internal market”, he considers.
Another claim from the segment is that it is an important tax payer. The justification is also contested by the FCA professor. According to data from the Instituto de Efectividad Clinica y Sanitária (Latin America), the tobacco industries annually collect around R$13 billion from public coffers. “Analyzed in isolation, these figures seem grand. However, diseases related to tobacco use cost the Brazilian State approximately R$56,9 billion annually. In other words, there is a difference of almost R$44 billion, which comes out of taxpayers' pockets. This is without taking into account the additional expenses of families on medicines and patient care”, he states.
The professor remembers that the Brazilian Constitution determines that health is a right for everyone and a duty of the State. “Now, if health is a right for everyone, the State has the obligation to regulate products that pose a risk to the well-being of the population”, he understands. In fact, the underlying issue of the STF judgment was precisely related to the competence of the regulatory agencies, in this case Anvisa.
If the Supreme Court had overturned the resolution, according to Vedovato, it would have been the same as saying that Anvisa cannot perform the role for which it was created, that is, regulating products and processes that may pose a risk to the health of the population. “This would not only affect Anvisa’s activities, but would also set a precedent for challenging the competence of other regulatory agencies”, points out the FCA professor.
Justice against the grain
Anvisa's CEO, Jarbas Barbosa, considered the STF's decision a victory for the body. “It was an important victory to ensure that Anvisa can regulate cigarettes. There are several initiatives by the tobacco industry, such as the inclusion of additives that disguise the flavor, which can induce children and adolescents to try cigarettes and become smokers. This could reverse the trend of reducing smoking seen over the last 25 years in our country, with a very serious impact on public health. We will continue to present the technical and legal arguments whenever there are new actions,” he declared.
In addition to Brazil, other countries also prohibit the use of tobacco additives. Canada, Spain and Germany, for example, overcame the obstacles imposed by internal discussions and opted for this stance. If in this aspect Brazil is aligned with developed nations, in another it leaves something to be desired, as Vedovato observes. He refers to the position of Brazilian Justice, which has gone against the grain of the judiciary of other countries.
Here, no action proposed by ex-smokers seeking compensation from the tobacco industry for the damage caused by cigarettes has been successful to date. “In other countries, granting compensation to ex-smokers or their families is already a reality. The message given by the Court, in these cases, is the following: whoever manufactures a product that can cause harm to someone must take more care both with this production and with its dissemination”, ponders Vedovato. According to him, one of the objectives of the Unicamp Human Rights Committee is to reflect and propose issues outside the scope of Law, in order to contribute to the actions of the MP and to the decisions of the Judiciary.
