The Columbia Global Freedom of Expression Prize Winner 2018 – Significant Legal Ruling
Significant Legal Ruling: “Sugary Drinks” Decision (Decision T-543/17)
The “Sugary Drinks” Decision, of August 25, 2017, rendered by the Constitutional Court of Colombia found that prohibiting the NGO Educar Consumidores from broadcasting a commercial about the health risks of sugary drinks amounted to prior restraint. According to the Decision, the prohibition violated the consumers’ right to receive information about the health risks of sugary drinks.
Educar Consumidores launched the commercial in August 2016 as part of an advocacy campaign to impose a 20% tax on sugary drinks. Postobón S.A., a large beverage company, filed a complaint with the Colombian Consumer Protection Agency (CCPA), arguing that the commercial was misleading. Borrowing almost identical language from the corporation’s complaint, the CCPA held that “consumers had the right to truthful information, not messages that were ‘misleading, imprecise and confusing’” and ordered the commercial off the air. The Agency also barred Educar Consumidores staff from speaking publicly about the links between sugar consumption and health or even about official research on the same topic, conducted by the Ministry of Health, under threat of a $250,000 fine. Lastly, the NGO was forced to submit any future advertising related to the consumption of sugary drinks “so preventive control over the information [could] be carried out.” Two legal petitions were launched challenging the orders. Educar Consumidores argued that its right to freedom of expression had been violated when CCPA censored the commercial. The second challenge, initiated by members of the Alliance for Food Health, including the Colombian NGO Dejusticia, argued that the CCPA’s orders violated the consumers’ rights to receive information about the health risks of of sugary drinks.
A year after the commercial had been ordered off the air, the “Sugary Drinks” Decision restored the right of consumers to receive information about the effects of sugary drinks on their health by striking down CCPA’s orders. The Decision referenced extensively international, regional and international freedom of expression standards. It cited the International Covenant for Civil and Political Rights, the United Nations Human Rights Committee, the Inter-American Convention on Human Rights, the African Commission of Human and People’s Rights, and the US First Amendment, in addition to Colombian jurisprudence.
At the heart of the Decision is the notion set out by the Inter-American Court of Human Right that “a society that is not well informed is not truly free.” It recognized that freedom of expression includes not only the right to express one’s thoughts but also the right to seek, receive, access, and disseminate information. The Decision also highlighted the essential role of freedom of expression and information vis-à-vis the protection of consumer rights and of public health. The Decision determined that any limitation on freedom of expression must be subject to a strict scrutiny test and content neutral, and it applied the international three-part test (legality, legitimate aims, necessity and proportionality). It insisted that prior censorship is strictly prohibited.
José Luis Castro, the President of the public health organization Vital Strategies that works with Educar Consumidores, exclaimed that striking down the prohibition was “a victory for evidence-based, proven health policy over the commercial interests of the sugar-sweetened beverage industry. It’s a milestone in the protection of consumer rights, which we hope will reverberate across the wider region and around the world, wherever policy decisions on sugary drinks are under consideration.”
His words cannot ring more true. According to the World Health Organization, globally, over 400 million people are suffering from diabetes. Further, some 340 million children and adolescents between the ages of 5 and 19 are overweight and obese. Despite these figures, companies selling junk food and sugary drinks are seeking to limit access to information about the health risks of the products that they sell. Earlier this year, as part of the renewed negotiations over NAFTA (the free-trade agreement between the US, Canada and Mexico), American food and soft-drink companies lobbied the US administration to limit the ability of the three Governments to warn consumers about the dangers of junk food, including sodas and sugary drinks.