Grand Justices Interpretation No. 577

According to Article 8 of the Tobacco Hazards Prevention Act, “the level of nicotine and tar contained in the tobacco products shall be indicated on the tobacco product containers”. However, the claimant, who is a Taiwanese tobacco industry, failed to indicate the level of nicotine on the tobacco product containers while importing three different brands of cigarette, and later sold them in the department store in Taipei. The department of health, therefore, fined the claimant TWD 100,000 for each brand, i.e. TWD 300,000 in total.

The claimant sued the authority, but the district court and the appeal court held that the fine was conformity with the regulation. Thus, the claimant submitted the case the case to the Constitutional Court (“the Court”) claiming that Article 8 of the Tobacco Hazards Prevention Act violate the Constitution.

The Council concluded that Article 8 of the Tobacco Hazards Prevention Act did not violate Article 11 (Freedom of expression) of the Constitution. The Court agreed, to advance the health of the people, the government could adopt some more restrictive means through legislation to serve the government objective, but within the meaning of "necessity" and "proportionality". The duty of disclose would help the people understand the content of the tobacco products properly, and help consumers make a rational and informed purchase by considering the harmful effect caused by smoking. And the Court considered, comparing to hold all levels of government agencies and schools responsible for antismoking education, the duty of disclose was a less restrictive measure.

The Council also held that there was no violation of Article 15 (Right to property) of the Constitution since the infringement to the product supplier's property, considering its social duty, was minor and tolerable, and the duty to disclose was not retroactive. Besides, to the products which have already entered the distribution channel but not yet been sold, there was a six months’ transitional period to save the tobacco product suppliers from immediate legal detriment incurred by the change of law.

"To improve the health of the people, the government shall promote health care and devote attention to social warfare programs such as Medicare. [...]  However, this duty of disclosure is not only helpful in providing consumers with material product information but also sufficient to achieve the government objective in safeguarding the health of the people, and is therefore consistent with the principle of necessity and the provisions set forth in both Articles 11 and 23 of the Constitution." Paragraph 2 of the holding.

"Although requiring the tobacco product suppliers to provide product information on the tobacco product package constitutes a restriction on their property rights, such product labeling nevertheless complies with the principles of good faith dealing and information transparency because the labeling concerns the health of the people and provides the necessary information regarding the content of the product. The duty to disclose product information on the tobacco product package is a social duty imposed upon the tobacco product suppliers in exchange for the property rights. " Paragraph 4 of the reasoning.