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Intimidating governments with litigation or the threat of litigation

One of the strategies used by the tobacco industry to influence political processes is the use of litigation and the threat of legal action to block, delay, or weaken tobacco control measures adopted by governments.1

The logic behind this strategy is twofold. On the one hand, lawsuits impose financial costs and institutional strain on governments, especially those in lower-income countries, which may lack the resources to sustain lengthy and costly legal disputes. On the other hand, the mere threat of litigation can lead governments to retreat from planned regulations, an effect known in the literature as “regulatory chill.”2

At the global level, two cases have become emblematic. The first was the lawsuit brought by Philip Morris Asia against Australia after the country pioneered, in 2011, the adoption of plain packaging for tobacco products. The second was the case brought by Philip Morris International against Uruguay over that country’s tobacco control laws. In the Uruguayan case, international arbitration lasted six years and cost the government around US$ 10 million in legal fees.[3] Despite the favorable outcomes for Uruguay and Australia, whose laws were upheld by the courts, the chilling effect on other countries was real: six countries in the Americas, including Brazil, attempted to introduce plain packaging through legislative proposals that were eventually delayed or withdrawn, in part under the influence of industry arguments and litigation threats.3

In Brazil, the use of litigation by the tobacco industry to block public policies has a well-documented history. The most notable case involves Resolution No. 14/2012 of the Collegiate Board of the Brazilian Health Regulatory Agency (Anvisa), which banned the use of flavoring additives in tobacco products, making Brazil the first country in the world to adopt this measure. Although issued in 2012, the resolution never fully entered into force: the industry appealed to the courts and obtained injunctions that suspended its effects for years. In 2018, the Federal Supreme Court (STF) dismissed the Direct Action of Unconstitutionality (ADI 4874) filed by the National Confederation of Industry (CNI), recognizing Anvisa’s authority to regulate the matter. However, due to quorum requirements, the decision did not have binding effect, which opened the way for more than 40 new cases in federal courts.[4,5] Only in 2022, after more than a decade of legal disputes, did the courts reaffirm the legality of the measure.4 5

The industry has also challenged in court the legality of health surveillance fees charged by Anvisa on tobacco products, as well as contesting health warnings on cigarette packaging.6

A development of this strategy in Brazil shows how industry arguments can circulate across different institutional spheres and reach the judicial system even when the industry is not the direct plaintiff. In January 2026, the Federal Public Prosecutor’s Office in Uberlândia filed a Public Civil Action (ACP) against the federal government and Anvisa, challenging the ban on electronic smoking devices (ESDs) and calling for a more permissive regulatory model.7 The case originated from a citizen’s complaint, and both the complaint and the lawsuit reproduce arguments widely disseminated by the tobacco industry, such as the alleged “ineffectiveness of the ban,” “international examples of successful regulation,” the “economic benefits of legalization,” and claims of “institutional omission by Anvisa”—all of which have been challenged by experts and by the agency itself in a technical note submitted to the prosecutor’s office.8 This case illustrates how the strategy of judicialization can go beyond direct industry action: the arguments it promotes take on a life of their own, circulate across different arenas of public debate, and can be translated into legal actions brought by third parties, with the same effect of pressuring or reversing public health policies.

In all these cases, the pattern is the same: using the judicial system, directly or indirectly, to consume state time and resources.

These examples indicate that litigation is not, for the tobacco industry, a means of seeking justice, but a deliberate tactic to delay public health policies. For this reason, it is essential that governments are prepared to face these disputes, that the judiciary is informed about the Framework Convention on Tobacco Control (WHO FCTC) and its guidelines, and that regulatory decisions are protected from commercial interference, in line with Article 5.3 of the Convention.9

“TOP 10” Strategies for the Tobacco Industry in Brazil in 2024

06/02/2025

Document listing the TOP 10 tobacco industry interference.

Referência

“TOP 10” Estratégias da Indústria do Tabaco no Brasil em 2024. Cetab/Ensp/Fiocruz, Rio de Janeiro, 6 fev. 2025.

 

Highlights 24 - Fiocruz on alert with Bill 5008/2023

29/05/2024

Highlights with topics considered important with the aim of promoting debates and decision-making in the field of tobacco control. In this edition, the agenda is about: updating legislation on electronic smoking devices (DEF) in Brazil. The Resolution of the Collegiate Board - RDC No. 855, of April 23, 2024, maintains the prohibition of manufacturing, importing, selling, distributing, storing, transporting and advertising these devices and other news about interference by the tobacco industry.

Referência

KORNALEWSKI, Alex Medeiros; CARVALHO, Alexandre Octavio Ribeiro de; BARATA, Danielle; HASSELMANN, Luis Guilherme; TURCI, Silvana Rubano. Destaques do Observatório sobre as Estratégias da Indústria do Tabaco. Cetab/Ensp/Fiocruz, Rio de Janeiro, maio, 2024. Acesso em: 29 maio 2024.

 

Highlights18

31/07/2023

Highlights with topics considered to be of note in order to promote debates and decision-making in the context of tobacco control. In this edition, the agenda deals with: the Tobacco Industry's lobby for the Regulation of Electronic Smoking Devices (EDSs); tax reform: an important step for Public Health; a critical look at the tobacco industry and DEFs: a growing danger for passive smokers indoors.

Referência

KORNALEWSKI, Alex Medeiros; CARVALHO, Alexandre Octavio Ribeiro de; BARATA, Danielle; HASSELMANN, Luis Guilherme; TURCI, Silvana Rubano. Destaques do Observatório sobre as Estratégias da Indústria do Tabaco. Cetab/Ensp/Fiocruz, Rio de Janeiro, jul. 2023. Acesso em: 31 jul. 2023.