The Grand Justices of the Judicial Yuan rendered Judicial Interpretation No. 794 of August 28, 2020 (hereinafter, the “Interpretation”), holding that the provision of Article 9, Subparagraph 8 of the Tobacco Hazards Prevention Law (hereinafter, the “Law”) does not violate the gist of the protection of freedom of speech and equal rights under the Constitution.
According to the facts underlying this Interpretation, Applicant A is a tobacco company that sponsored a public interest project of Foundation B. Since the citizens petitioned that Applicant A had allegedly violated the provisions of the Tobacco Hazards Prevention Law, the Health Promotion Administration of the Ministry of Health and Welfare (previously the Bureau of Health Promotion of the Department of Health before its restructuring) forwarded the petition information to the Department of Health of Taipei City Government for investigation. The Department of Health of Taipei City Government held, as a result of its investigation, that by providing financial donations and volunteer services to sponsor the project, and by disclosing the sponsorship information to the media, the Applicant promoted its corporate image and increased the favorable impression of the public on its products and their willingness to purchase the products. This directly or indirectly resulted in the promotion and marketing of tobacco products or enhanced the image of smoking in violation of Article 9, Subparagraph 8 of the Law (hereinafter, the “Provision at Issue”), and the Applicant was fined in accordance with Article 26, Paragraph 1 of the same law. Dissatisfied, the Applicant filed an administrative appeal, which was subsequently rejected. As a result, the Applicant brought an administrative action, which was later dismissed by a final decision, before applying to the Grand Justices for constitutional interpretation.
This Interpretation points out that, as explained in Judicial Interpretation Nos. 414, 577 and No. 744, the freedom of speech for the information provided in product advertisements is protected under Article 11 of the Constitution only when such information is not false, untruthful or misleading, and when the purpose of legitimate transaction is intended in order to assist the consumer in making economically reasonable choices. In order to safeguard the receipt of true and complete information by the consumers, prevent misleading product advertisements or labeling or further other vital public interests, to avoid misleading advertising or labeling of goods, or to further other important public interest purposes (such as the protection of national health), the State may conduct legislation to adopt means that are substantively connected to achieving the above-mentioned objectives and restrict product advertisements. In addition, as explained in Judicial Interpretation Nos. 722, 745, 750 and 791, the equal rights under Article 7 of the Constitution do not ipso facto prohibit differential treatments by the State. Whether the differential treatments under the law are consistent with the protection of equality depends on whether the purposes of the differential treatments are constitutional and whether there is a certain degree of correlation between the classification so adopted and the achievement of the normative objectives. If laws and regulations involve characteristics of individuals which are difficult to change, such as race, gender, sexual orientation, or people who are subject to various de facto or de jure exclusion or discrimination, or who are socially isolated minorities and politically disadvantaged, such laws and regulations shall be subject to stricter or more stringent review standards. Conversely, if the classification under laws and regulations is different from the aforementioned classification and the differential treatments do not involve important basic rights related to the development of personality and human dignity of the individuals, a lenient standard may certainly be applied. The right to equality under Article 7 of the Constitution is not violated if the legislative purpose is to pursue a legitimate public interest and the classification is reasonably related to the accomplishment of the purpose.
This Interpretation further states that the legislative purposes of the first part of Article 1 of the Law are to avoid tobacco hazards and protect national health. Therefore, the purposes of restricting the advertising and promotions of tobacco products are to reduce the use of tobacco products, prevent tobacco hazards, and safeguard national health. These purposes pertain to the pursuit of important public interests and are constitutional. In addition, in case of a tobacco operator’s act to provide sponsorship by indicating its corporate name, if the direct or indirect purpose or effect is to advertise or promote the use of tobacco products to unspecific consumers, this would constitute a promotion prohibited by the Provision at Issue to avoid a tobacco operator’s factual advertising or promotion of tobacco products under the pretext of sponsorship, which may create a negative impact on the denormalization of tobacco products and undermine the policy of preventing tobacco hazards. Therefore, since there is a substantial connection between the restrictive means under the Provision at Issue and the achievement of the legislative purposes, the Provision at Issue is also constitutional. Therefore, the Provision at Issue does not violate the gist of protecting the freedom of speech under the Constitution. In addition, although the Provision at Issue imposes restrictions on tobacco operators with the identity of the party expressing the intent used for classification, still this is not a classification reviewed under strict criteria. In addition, since the effects of various foods, tobacco products, and alcoholic beverages on human health vary, and it is difficult to provide a basis for comparison. Even though the Applicant asserted that goods which may potentially undermine human health such as tobacco products, alcohol or betel nuts should be used as targets of comparison, still tobacco products are harmful not only to the health of the smokers themselves. In fact, the harm caused by inhaling secondhand smoke created by smoking is different from that caused by goods such as betel nuts and alcohol. Therefore, there is a reasonable connection between the classification based on the identity of a tobacco operator and the pursuit of national health. In conclusion, the objectives of the Provision at Issue are justified with a reasonable connection between the classification and the objectives, and the gist of protecting equal rights under Article 7 of the Constitution is not violated.