Ban on Trading Tobacco Products Near Educational and Healthcare Institutions – Constitutional

On Monday, 8 April 2019, the Constitutional Court of Moldova delivered a judgment confirming the constitutionality of Article 25 para. (6) of the Law no. 278 of 14 December 2007 on tobacco control (Application no. 52a/2019).

Circumstances of the case 

The case originated in an application lodged with the Court by Mr. Simion Grișciuc who at the material time was a Member of Parliament. 

The applicant alleged that the challenged provision does not ensure fair competition between the traders due to the fact that, in spite of banning the trade of tobacco and related products at a distance shorter than 200 m from educational and healthcare institutions, this ban is only applicable to business units with a surface smaller than 20m², it not covering the ones with a bigger surface. Thus, the applicant alleged that the challenged provision is in breach of Articles 9 para. (3), 16, 54 paras. (1) and (2), 126 para. (2) let. b) of the Constitution.

The Court’s assessment 

The Court assessed whether the challenged measure complies with the constitutional duty of the State to ensure fair competition between the traders [which derives from Articles 9 para. (3), 54 and 126 para. (2) let. b) of the Constitution]. It reviewed whether the challenged provision is prescribed by law, whether it pursues a legitimate goal and whether the differentiated treatment is objectively justified. 

As regards the quality of the law, the Court held that the challenged legislative measure is accessible and clear both with respect to business units that fall within its scope and with respect to the method of calculating the distance of 200 m which must be observed between the business units selling tobacco products and educational and healthcare institutions. 

Turning to the legitimate aim of the challenged measure, the Court noted that the regulation of the distance between business units willing to trade tobacco products and educational and healthcare institutions is based on scientific data, which says that the density of these units in the proximity of educational institutions is associated to a high level of smoking amongst pupils. Thus, by this measure, the legislator pursued two goals: protecting the health of young people and protecting the health of the community in general. 

When determining the existence of less restrictive alternative measures, the Court found that none of the alternative measures could be compared with the effects of the ban on the trading of tobacco products in the vicinity of protected groups, given that its peculiarity is represented by the imposition of a “protective area” between educational and healthcare institutions. 

As regards an objectively justified nature of the differentiated treatment, the Court assessed whether the stationary business units and the provisional business units are in a similar situation. 

In this respect, the Court observed that the temporary business units (i.e. pavilions, kiosks, booths) may operate under less rigid conditions than those imposed to stationary business units (i.e. shops, super-markets, mixed shops etc.). This therefore makes it possible for them to be placed in the most accessible places for protected groups and which are more crowded with members thereof, but to also have easily changed their location (i.e. observing the distance of more than 200 m). 

The Court also found that while tobacco products are not visible from the entrance of stationary business units, the reverse is true for temporary business units in that they ensure increased visibility for the wide public and particularly to the protected groups. The finding in question is in line with scientific data showing that persons going to educational institutions often tend to buy tobacco products from small business units, as they ensure more visibility to these products. 

The accessibility level of temporary business units is higher than in case of stationary business units. This ensures a greater selling volume than in case of stationary business units. This also allows for a greater selling volume of tobacco products than in shops, super-markets, mixed shops etc. Thus, having regard to the fact that tobacco products represent one of the main products for small business units, these units may be considered the most popular source for buying tobacco products among the members of the protected group. 

The Court also took into account the risk of tobacco products being traded to minors and considered that the stationary business units provide more safeguards (i.e. video cameras) than temporary business units. The Court stemmed from the presumption that stationary business units meet a higher degree of compliance with the ban on selling tobacco products to minors than the temporary business units and it thus considered that the existent differentiated treatment in this case is justified. 

It also noted that from the date the challenged ban had been adopted and the date it had taken effect, business units enjoyed a sufficient period of time (i.e. four years) to adapt to the new conditions imposed by the legislator. 

Overall, when assessing the challenged measure, the Court reached the conclusion that the temporary business units have available sufficient elements counterbalancing the disadvantage complained of by the applicant. Accordingly, the challenged measure is not in breach of Articles 9 para. (3), 54 and 126 para. (2) let. b) of the Constitution.

The Court’s conclusions 

Considering the foregoing, the Court rejected the application of Mr. Simion Grișciuc who was a Member of Parliament when lodging it with the Court. 

It declared constitutional Article 25 para. (6) of the Law no. 278 of 14 December 2007 on tobacco control. 

This judgment is final, it cannot be appealed, entering into force upon the date of adoption and shall be published in the Official Journal of Moldova.

This a courtesy translation of the original text available in Romanian language.