of the Constitution of the Republic of Lithuania and
of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 21-22 January 1997 conducted the investigation of Case No. 6/96 - 10/96 subsequent to the petition submitted to the Court by the petitioners - the Seimas of the Republic of Lithuania and a group of Seimas members - requesting to investigate if Articles 1 and 30 of the Law on Alcohol Control of the Republic of Lithuania, Articles 1, 3 and 11 of the Law on Tobacco Control of the Republic of Lithuania are in compliance with Articles 25, 29 and 46 of the Constitution of the Republic of Lithuania as well as whether the 2 February 1996 Resolution of the Government of the Republic of Lithuania No. 179 “On the Control of Advertising for Alcohol” is in compliance with Part 3 of Article 25 of the Constitution of the Republic of Lithuania. The Constitutional Court has established: I On 31 May 1996 the Constitutional Court received a petition of a group of Seimas members wherein it was requested to investigate whether Articles 1 and 30 of the Law on Alcohol Control (Official Gazette “Valstybës Þinios” No. 44-1073, No. 61-1527, 1995) and Articles 1, 3 and 11 of the Law on Tobacco Control (Official Gazette “Valstybës Þinios” No. 11-281, 1996) were in compliance with Articles 25, 29 and 46 of the Constitution, as well as if the 2 February 1996 Government Resolution No. 179 “On the Control of Advertising for Alcohol” (Official Gazette “Valstybës Þinios” No. 12-318, 1996) is in compliance with Part 3 of Article 25 of the Constitution. On 1 July 1996 the Constitutional Court received the 25 June 1996 Seimas Resolution “On appealing to the Constitutional Court with the request to investigate if Articles 1 and 30 of the Law on Alcohol Control as well as Articles 1, 3 and 11 of the Law on Tobacco Control are in compliance with the Constitution of the Republic of Lithuania”. After the Constitutional Court had decided to accept the petition of the Seimas and to institute preparation of the case on the grounds thereof, the validity of Paragraph 4 of Article 1 and Article 30 of the Law on Alcohol Control and Paragraphs 5 and 6 of Article 1, Item 6 of
and Parts 4 and 5 of Article 11 of the Law on Tobacco Control was suspended pursuant to Part 4 of Article 106 of the Constitution until the promulgation of the ruling of the Constitutional Court regarding this case. The Constitutional Court joined both petitions submitted by a group of Seimas members and the Seimas itself into one case by its 9 January 1997 decision. II The petition of the group of the members of the Seimas is grounded on the following legal motives. The disputed norms of the aforementioned laws prohibit advertisement for alcoholic beverages and tobacco products in Lithuania. To back this statement, quotations from Paragraphs 4 and 5 of Article 1 and Article 30 of the Law on Alcohol Control and Paragraphs 5 and 6 of
, Item 6 of
The petitioner alleges that there arise doubts if the aforesaid parts of legal acts are in compliance with respective articles of the Constitution.
of the Constitution provides that individuals shall have the right to have their own convictions and freely express them; Part 2 of Article 25 provides that individuals must not be hindered from seeking, obtaining, or disseminating information or ideas; Part 3 of Article 25 provides that freedom to express convictions, as well as to obtain and disseminate information, may not be restricted in any way other than established by law, when it is necessary for the safeguard of the health, honour and dignity, private life, or morals of a person, or for the protection of constitutional order. The petitioner indicates that in Lithuania the trade of alcohol and tobacco products is licensed, however, consumption and trade of alcohol and tobacco products as well as performing other operations with them is not prohibited provided established restrictions are followed. Hence, the petitioner concludes that dissemination of information concerning legal activities should not be prohibited unrestrictedly, however, according to “the presented definitions of advertisement for alcohol and tobacco products and those of indirect advertisement for alcohol products and indirect advertisement for tobacco products recognise that advertisement is not only the information directly connected with promotion of alcohol and tobacco products consumption but also the information connected, or that which is not connected at all, with production, import and sale of alcohol and tobacco products. Such definitions of advertisement are, first of all, defective because that they are particularly unspecified and abstract, therefore, on the grounds of such definitions, not only something which actually corresponds the universally adopted concept of advertisement may be recognised as advertisement but also any other information, too”. The petitioner alleges that categorical prohibition of advertisement, and, according to the content of the definitions, any information concerning alcohol and tobacco products is anti-constitutional and not acceptable. The petitioner admits that the freedom to information is not an absolute one and it may be restricted under principles provided for by Part 3 of Article 25 of the Constitution, i.e., only such information may be restricted whereby the health, honour, dignity, private life or morals of a person, or constitutional order is encroached. However, one may not broadly interpret the content of this constitutional norm and extend its applicability to any information which may be indirectly linked with consumption of alcohol and smoking. The motive of the opponents of advertising that any alcoholic beverages or any tobacco products, along with the information about them, is the same evil is an ungrounded one. The petitioner is of the opinion that the provision of Part 3 of Article 30 of the Law on Alcohol Control that the criteria for recognising the contents and arrangement of audio or visual information or the ways of transmission thereof as advertisement for alcohol and the procedure of control of compliance with the alcohol advertisement prohibition shall be established by the Government of the Republic of Lithuania, as well as the provision of Part 5 of Article 11 of the Law on Tobacco Control that the Government of the Republic of Lithuania shall establish criteria for recognition of tobacco advertising, according to visual and audio information content, design, and means of presentation, and shall establish the procedure for control of the ban on advertisement for tobacco products, is extremely defective from the legal point of view. Part 3 of Article 25 of the Constitution stipulates that freedom to express convictions, as well as to obtain and disseminate information, may not be restricted in any way other than as established by law. Laws mean the Constitution, constitutional laws and other laws. The petitioner points out that according to the disputed legal acts, the Government shall establish which information is to be recognised as advertisement and which is to be banned by implementing the rights delegated to it through substatutory legal acts - resolutions. Such a legal act, however, may not replace the law itself, nor may it create new norms of general legal character which could, by their power, compete with the norms of the law. Therefore the petitioner alleges that the possibility which has been established in the disputed legal acts to regulate legal relations that emerge from the inborn human right established in the Constitution to express convictions, as well as to obtain and disseminate information, by the acts having secondary legal power - Government resolutions - is to be recognised as contradicting the Constitution. In the opinion of the petitioner, on the grounds of the motives indicated, the 2 February 1996 Government Resolution No. 179 “On the Control of Advertising for Alcohol” is to be recognised as contradicting Part 3 of Article 25 the Constitution, too. Part 2 of Article 29 of the Constitution provides that a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or options. Hence the petitioner concludes that the Constitution guarantees not only the right for every person to have his convictions as to consumption of alcoholic beverages or expediency of smoking etc., but also that persons who have a negative standpoint as regards consumption of alcoholic beverages and smoking may not have any privileges with respect to those whose standpoint concerning analogous matters is indifferent or positive. In the opinion of the petitioner, a person who does not smoke or is a teetotaller is not by himself a greater social value than a person whose standpoint and behaviour are opposite. No one questions the right to disseminate information grounded on objective data about negative effects, harm, etc., of consumption of alcoholic beverages and smoking. However the petitioner is of the opinion that another part of the society which, in most cases, is more numerous than that of the opponents of consumption of alcoholic beverages and smoking may not be deprived of the opportunity to obtain information concerning legally sold alcoholic beverages, tobacco products, the importers and distributors, product quality, technology of manufacturing, chemical and other properties of the product. When the right to freedom is deprived, then individuals are deprived of the opportunity of choice. The petitioner alleges that the situation when the others decide for a person what information he is entitled to obtain and what information he is not entitled to obtain is characteristic of a totalitarian form of governance and is incompatible with the principles of creation of a democratic state. Part 3 of Article 46 of the Constitution provides that the State shall regulate economic activity so that it serves the general welfare of the people. The petitioner takes heed of the fact that when deciding the conformity of the disputed legal acts with the Constitution one must bear in mind that advertising in a market economy is one of the factors directly influencing production increase. The enterprises which gain subsistence by manufacturing alcoholic beverages and tobacco products, by their import and selling pay a great number of various taxes, e.g., profit, value-added, duty, excise taxes etc. New jobs are created, foreign capital is invested, etc. The more intensive this activity and the greater turnover, the more income is received by the budget, therefore more means can be allocated for social programmes, health care and similar needs. Items 1-11 of
of the Law on Alcohol Control establish principles of state alcohol control policy, whereas Items 1-8 of
The petitioner is of the opinion that in order to implement the objectives raised in the aforesaid items, means are required which are intended to be collected from the entities which gain subsistence from manufacturing of alcoholic beverages and tobacco products, as well as their import and selling, however, it is attempted by the said laws to do so that there were as little as possible of the said means. It is noted in the petition that unequal conditions of running businesses are created as certain entities which are occupied with legal activities have the opportunity to advertise themselves whereas other entities which also occupy themselves with legal economic activities are deprived of such an opportunity. The petitioner pays attention to the fact that Item 1 of
of the Law on Alcohol Control provides that in the Republic of Lithuania advertising of alcoholic beverages shall be prohibited only in the radio and television programmes produced at Lithuania’s radio and TV stations. Yet advertising of alcoholic beverages in the radio and television programmes produced at foreign radio and TV stations is not prohibited. For that reason the petitioner concludes that Lithuanian economic entities are evidently placed at a greater disadvantage if compared to foreign economic entities. Alongside, the petitioner alleges that it is possible to contend whether creating better conditions of economic activity to the entities of your country would be in conformity with international standards, nevertheless discrimination of one’s own economic entities is incomprehensible and unjustified. Besides, one must not forget that foreign entities do not pay taxes into the budget of the Republic of Lithuania. The petitioner affirms that restriction of capacities of certain economic entities, as well as making various obstructions to them, along with decreasing incomes to the budget, is inconsistent with public needs. During the judicial investigation V. Barkauskas, an advocate, the representative of a group of Seimas members, reiterated the arguments which had been presented in writing and emphasised that consumers do not receive important information because of the ban on alcohol and tobacco advertising, they are deprived of the opportunity to choose a product which is less harmful to health. Thus the representative is of the opinion that such a ban does not help to preserve one’s health in such a case. As for the Government Resolution, its Item 2 is most doubtful. In the opinion of the representative, this resolution contradicts Part 3 of Article 25 of the Constitution not only by its form but also by its content. III The following motives were set forth in the introductory part of Seimas resolution on appealing to the Constitutional Court. In the process of discussion and adoption of the Law on Alcohol Control and the Law on Tobacco Control arguments were given concerning non-compliance of some norms of these laws with the Constitution. The harm which is inflicted to health by immoderate consumption of alcohol and smoking, as well as necessity to restrict advertising of alcohol and tobacco products, is beyond doubt, however unconditional ban on information contradicts provisions of the Constitution. According to Part 2 of Article 25 of the Constitution, individuals must not be hindered from seeking, obtaining, or disseminating information or ideas. Part 3 of Article 25 of the Constitution provides that freedom to obtain and disseminate information may not be restricted in any way other than as established by law. In the opinion of the petitioner, the Law on Alcohol Control and the Law on Tobacco Control prohibit to obtain and disseminate information while the Government is commissioned to establish the procedure for the control of ban on advertising. When the case was being prepared to the court hearing, R. Virbalis, an adviser of the Chairman of the Health Care Committee of the Seimas, a representative of the Seimas, virtually assenting to the arguments set forth in the request of the group of the members of the Seimas and the Seimas Resolution explained the following. The ban on advertising provided for in Article 30 of the Law of Alcohol Control does not mean total prohibition of supplying information about alcoholic beverages for consumers. However, the provision that “advertising of alcoholic beverages shall be prohibited in other ways or by other means of broadcasting audio or visual information, including indirect advertising of alcoholic beverages” predisposes restriction of supplying information of certain character which may be regarded as advertisement for consumers. The provision “the criteria for recognising the contents and arrangement of audio or visual information or the ways of transmission thereof as advertisement for alcohol and the procedure of control of compliance with the alcohol advertisement prohibition shall be established by the Government of the Republic of Lithuania” of the Law on Alcohol Control conditions a certain indecisiveness as to distinguishing between information and advertisement. The representative points out that the definition of indirect advertisement presented in Article 1 of the Law on Alcohol Control also conditions restriction of supplying of information of certain character about alcoholic beverages for consumers. The petitioner turns his attention to the fact that the provision of Article 11 of the Law on Tobacco Control that tobacco advertising shall be prohibited conditions restriction of supplying of information of certain character about tobacco products to consumers, even though the definition of advertisement for tobacco products and that of indirect advertisement for tobacco products does not distinguish between information and advertisement sufficiently enough. The representative is of the opinion that these considerations permit to conclude that the said provisions of respective articles of the Law on Alcohol Control and the Law on Tobacco Control could be specified more exactly. During the court hearing the representative of the Seimas R. Virbalis supported the arguments which had been set forth in writing and added that the provision of Item 4,
of the Law on Alcohol Control, as well as the definition of indirect advertisement in Article 1 of the Law on Tobacco Control, does not distinguish between information and advertisement sufficiently enough, therefore they should be specified more exactly. IV In the course of preparation of the case for the court hearing, E. Ðileikis, a consultant at the Legal Division of the Seimas, a representative of the Seimas, explained that Article 25 of the Constitution consolidates different values. Bearing in mind that the norms of different parts of the said article constitute an indivisible whole, it is possible to assert that from the standpoint of harmonious co-existence between the public and the state a certain value which is provided for by Article 25 of the Constitution pales into insignificance before another value. In other words, by legally regulating co-ordination of the values which are provided for in Article 25 of the Constitution and which come into conflict in reality, it is necessary not to violate the essence of the indivisible whole of this article and to seek to rationally co-ordinate clashing constitutional values, i.e., not to provide any of these values with absolute primacy with respect to the other. The representative emphasises that provided such a rational co-ordination (“balancing”) principle of clashing legal values, the principle which is widespread in democratic states under the rule of law, were followed and providing one underscored that “human rights and freedoms are the highest legal value” while “protection of common interests in a democratic state may not deny the right of an individual to information as such”, then it should be considered that virtual prohibition by laws of even the smallest possibility to disseminate and obtain information having signs of advertisement about alcohol and tobacco products, i.e., to provide human health, as a constitutional value, with the absolute primacy with respect to another constitutional value - human right to freely seek, obtain and disseminate information. All the more that absolute ban on advertising alcohol and tobacco products is rare in west European countries. In the opinion of the representative, Article 30 of the Law on Alcohol Control and Articles 3 and 11 of the Law on Tobacco Control which virtually ban any opportunity emerging from Article 25 of the Constitution to seek, obtain and disseminate information having signs of advertisement about tobacco and alcohol products are to be qualified as violating the indivisible whole of Article 25 of the Constitution, i.e., as contradicting the said article. The representative states that it is also possible to perceive the non-compliance of Article 30 of the Law on Alcohol Control and Articles 3 and 11 of the Law on Tobacco Control with Article 25 of the Constitution from another standpoint: the legislator when deciding ways to protect people’s health from harmful influence of alcohol and tobacco products must opt for such legal measures which could convincingly be substantiated, i.e., those which would not raise doubts if considered from the standpoint of the practice of modern states that the legislator subjectively and imperfectly restricts the human right emerging from Article 25 of the Constitution to freely seek, obtain and disseminate information with signs of advertisement about tobacco and alcohol products. Assessing objectively the possibilities of different types of mass media to exert influence upon the evolution of society, one may assert that the press, television and radio should be treated differently by legally regulating dissemination and obtaining of information which is harmful to human health. Bearing this in mind and grounding himself on the provision “greater demands are made of Radio and Television than of other means of mass media for their especially great influence upon the broad audience” of a ruling of the Constitutional Court the petitioner alleges that the absolute and adequate ban on advertising of alcohol and tobacco products through the press, television and radio is a deficient one. All the more that in west European states, in the opinion of the representative, absolutely identical ban on advertising of alcohol and tobacco products through the press, television and radio is not widespread. The representative noted that in the doctrine of human rights and freedoms the right to freely disseminate and obtain information is treated as one of the freedoms of communication which in most part determines free and open communication in the society along with creating of public opinion - one of fundamental attributes of modern democracy. According to Mykolas Riomeris, a professor of Lithuanian constitutional law, the system of a democratic state is based on the domination of public opinion. In other words, it is important from the standpoint of democracy that public opinion had an opportunity to develop freely. The representative alleges that bearing this in mind and noting that public opinion shapes itself with reference to reality as a whole, along with different spheres of reality, including alcohol and tobacco products, it is doubtful whether the precondition of free and open shaping of public opinion about alcohol and tobacco products is not violated when the state virtually unconditionally prohibits advertising of such products. As in reality alcohol and tobacco products prevailing in the western world are advertised, and which neither could be acquired by Lithuanian consumers in Soviet times, nor could the consumers know about them, and following the provision that most consumers in Lithuania consume relatively cheap alcohol and tobacco products chiefly manufactured in Lithuania and rarely advertised, then, in the opinion of the petitioner, Article 30 of the Law on Alcohol Control and Articles 3 and 11 of the Law on Tobacco Control which prohibit the smallest advertising opportunity emerging from Article 25 of the Constitution violate the guarantees consolidated in the said article of free and open shaping of public opinion about alcohol and tobacco products. The representative paid his attention to the fact that the criteria for recognising information as advertisement for alcohol was established by the 2 February 1996 Government Resolution No. 179 “On the Control of Advertising for Alcohol” and this means that the human right emerging from Article 25 of the Constitution to seek, obtain and disseminate information having signs of advertisement about alcohol products is restricted by a substatutory act and not by a law, which violates Part 3 of Article 25 of the Constitution. Therefore such a Government resolution is to be assessed as contradicting Part 3 of Article 35 of the Constitution. During the process of judicial investigation E. Ðileikis expressed doubts as to priorities of fundamental human rights and freedoms with respect to each other. It is notably doubtful whether people’s health may have primacy over the freedom to information even though the said information has signs of advertisement. The disputed Government Resolution competes with its significance with the law. It contradicts Part 3 of Article 25 of the Constitution. The representative is of the opinion that, alongside, difficulties occur in this case because the law-making institution - the Seimas - passed the law and later had doubts as to the compliance of its legislation with the Constitution. Instead of amending the law, it appealed to the Constitutional Court. V When the case was being prepared for the court hearing, V. Savickis, an adviser of Prime Minister, A. Nevas, a consultant at the Office of the Government, both are the representatives of the Government, presented the following arguments regarding the formulated statements in the petitions to the Constitutional Court. Implementing the requirement of Article 30 of the Law on Alcohol Control to establish criteria for recognising the contents and arrangement of audio or visual information or the ways of transmission thereof as advertisement for alcohol, the Government adopted its 2 February 1996 Resolution No. 179 “On the Control of Advertising for Alcohol”. The legislator opted for a rather controversial means of restriction of alcohol and tobacco advertising. On the one hand, both laws attempt to distinguish between the definitions “advertisement” and “information”, on the other hand, Article 1 of both laws present the definitions of the notions “advertisement” and “indirect information” which virtually include any information concerning alcohol and tobacco products. Both laws, having established the ban on advertising of the aforesaid products, commission the Government to establish what information is allowed (i.e. what information is not advertisement). Contradictions arise due to the fact that the content of advertisement is also made up by some information, regardless whether it is audile or visual. Part 3 of Article 25 of the Constitution provides that “freedom to express convictions, as well as to obtain and disseminate information, may not be restricted in any way other than established be law, when it is necessary for the safeguard of the health, honour and dignity, private life, or morals of the person, or the protection of constitutional order”. Thus the Constitution does not provide for restrictions of information dissemination by substatutory acts. The representatives allege that it is evident from the arguments set forth that the legislator created a legal situation due to which the Government had no possibilities to adopt the resolution which, according to its content and form, would not violate Part 3 of Article 25 of the Constitution. Alongside, Part 3 of Article 25 of the Constitution provides for only such restrictions of information which, in attempt to protect people’s health, are “necessary”. In the opinion of the representatives, such clearly formulated “necessary” restrictions by the state must be established by law. The representatives allege that were the formulations of the Law on Alcohol Control and the Law on Tobacco Control understood as total ban on alcohol and tobacco products, they would contradict not only Article 25 of the Constitution but also most international obligations which, according to Article 138 of the Constitution, must be carried out by the Government and which “shall be the constituent part of the legal system of the Republic of Lithuania”. During the court hearing the representatives of the Government reiterated their arguments presented in writing and emphasised that the Government by no means intends to promote alcohol and tobacco consumption, however, it would approve of clear amendments of the law whereby regulations of restrictions on advertising were provided for yet they would not prohibit to enjoy the constitutional right to inform consumers and the consumers would not be prohibited from accomplishment of their right to choose alcohol and tobacco products of better quality. VI Vytenis Andriukaitis and Kazimieras Kuzminskas, the representatives of the opposing group of the members of the Seimas who stated that they are supportive of the provisions of the disputed laws and presented their arguments regarding the motives formulated by the petitioners, spoke in the court hearing. The following specialists spoke in the hearing of the Constitutional Court: Prof. Antanas Goðtautas, Head of the Laboratory of Medical Psychology at the Institute of Cardiology; Tomas Stanikas, an assistant lecturer at the Chair of Prophylactic Medicine at Kaunas Academy of Medicine, the co-ordinator of the tobacco control in Lithuania under the World Health Organisation; Vytautas Silickas, a deputy Director General of the State Public Health Centre; Giedrë Þilinskienë (M.D.), Chairperson of the Co-ordinating Council of Children’s Affairs under the President of the Republic of Lithuania; Gediminas Jakubèionis, Chairperson of the Lithuanian Abstinence from Alcohol Foundation; Gintaras Songaila, President of the Association of Lithuanian Radio and Television; Marius Jakulis Jason, a lawyer, specialist in patent law. Ona Grimalauskienë, a consultant on psychical health issues at the Medical Division of the Ministry of Health Care, a deputy chairperson of the Government Commission of Drugs Control, submitted her conclusions to the Court in writing. The Constitutional Court holds that: 1. Questions of the legitimacy of the ban on advertising of alcoholic beverages and tobacco are under investigation in this case. Their solution is possible only in the wider context, investigating the concept of freedom of information as well as the possibility of restricting this freedom. At the same time, it is necessary to elucidate the reciprocity between information and advertising and possible consequences of the consumption of alcohol and tobacco on human and public health. 1.1. Every person has his or her views and convictions; unrestricted possibility to express them is an elementary precondition to commune with other people. Only free exchange of information provides a possibility for an individual to expand his or her knowledge, develop his/her world outlook, improve his/her personality. Free and universal exchange of information, its unrestricted dissemination are a particularly important factor in democratic processes. This factor ensures not only the formation of individual opinion and subjective convictions but also that of group views, including political, as well as that of the whole nation’s will. That is why freedom of information is a fundamental element in a pluralistic democracy. Freedom of information is usually treated in a wide sense and covers freedom of speech, freedom to have convictions ant freely express them, freedom to obtain and disseminate information and ideas, freedom of the press and other means of the mass media. Freedom of information comprises not only the right to inform (i. e. to disseminate information) but also the right to receive information. Wrong information, i. e. misinformation, is usually banned by the laws of states. Thus, the requirement of the truth is applicable to information (including advertising). 1.2. Between the rights and freedoms of individuals on the one hand and the interests of society on the other, conflicts occasionally arise, sometimes contradictions occurs. In a democratic society such contradictions are solved by co-ordinating different interests and seeking not to upset their balance. One of the ways to co-ordinate interests is restriction of the rights and freedoms of individuals. Incidentally, the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for such a possibility. According to the Convention and the established practice of the European Court of Human Rights, this kind of restrictions is possible, i.e. they are regarded as grounded if they meet two conditions:
and Parts 4 and 5 of Article 11 of the Law on Tobacco Control, with the Constitution. In the resolutory part of the Seimas 25 June 1996 Resolution on appealing to the Constitutional Court it is requested to investigate if Paragraph 4 of Article 1 and Article 30 of the Law on Alcohol Control, as well as Paragraphs 4 and 5 of Article 1, Item 6 of
and Parts 4 and 5 of Article 11 of the Law on Tobacco Control are in compliance with the Constitution. Conforming to the provisions of Part 6 of Article 106 of the Constitution, the Constitutional Court will investigate and assess only such norms of the said laws the unconstitutionality whereof is alleged on the basis of legal motives. 2.
of the Law on Tobacco Control and Part 4 of Article 11 of the said law which stipulates: “Tobacco advertising shall be prohibited in the Republic of Lithuania.” In the opinion of the petitioners, the aforementioned norms violate the provision “a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or options” of Part 2 of Article 29 of the Constitution. They allege that the Constitution guarantees not only the right to everyone to have his convictions regarding expediency of alcoholic beverages consumption or smoking etc., but also that persons who have a negative standpoint as to alcoholic beverages consumption or smoking may not be granted any privileges with respect to people who have indifferent or positive standpoint as regards analogous phenomena. When a person is deprived of the right to information, he is also deprived of the opportunity of choice. The Constitutional Court notes that advertisement also is information as it provides its receiver with certain cognizance about goods, services or other objects (subjects) advertised. However, this is a peculiar sub-class of information which is, as a rule, called commercial information. Advertising is inseparable from the sphere of business and marketing as in fact it serves the latter and it is an important means of competition. And yet the ban on tobacco products and alcohol advertising alone may not be treated as people’s discrimination or granting privileges, because that such a ban concerns the whole society and not particular groups of people. On the other hand, such a ban strives for humane purposes - to protect young people from psychological pressure to smoke or consume alcoholic beverages; to stop the spread of smoking and drinking among women; to protect consumers from, as a rule, biased and tendentiously limited information; to consolidate the standpoint that smoking and alcoholic beverages consumption is harmful to public health. These purposes go hand in hand with the tasks raised by the World Health Organisation in the sphere of public and people’s health. The petitioners express their doubts as to the lawfulness of the propositions “prohibition of advertising” which are used in the Law on Alcohol Control and the Law on Tobacco Control as Part 3 of Article 25 of the Constitutions merely mentions the opportunity to restrict the freedom of information. For instance, it is set forth in the Seimas Resolution on the appeal to the Constitutional Court that “the Law on Alcohol Control and the Law on Tobacco Control prohibit to receive and disseminate information concerning products of alcohol and tobacco [...]”. It should be noted that the aforesaid doubt is a groundless one because it is based on the virtually erroneous assumption that information is equivalent to advertisement. Advertisement is information, however, not every information is advertisement. Therefore the ban on the advertisement for alcohol and tobacco products may mean only the ban on certain type of information (the supposed commercial, or marketing, information) which on a scale of the whole information may be assessed as merely a restriction of information. On the other hand, the notion “prohibition” which is used by the legislator does not always mean absolute prohibition, even that of advertising. For example,
of the Law on Alcohol Control wherein prohibition of advertisement for alcoholic beverages is mentioned establishes prohibition of particular forms and ways of advertising. It is obvious that they do not include all possible ways of alcohol advertising, therefore in this case it is impossible to assert that this is total ban on alcohol advertising. In fact it is only partial (even though significant) restriction of commercial information concerning alcohol. The prohibition of tobacco products advertising is of different character. The Law on Tobacco Control proclaims such a prohibition a principle of state tobacco control policy (Article 3). Article 11 of the said law consolidates the norm that tobacco advertising shall be prohibited. This may actually be understood as a total ban on tobacco products advertising, however, from this one cannot draw the conclusion that every information concerning tobacco products. Part 6 of Article 11 of the Law on tobacco Control stipulates that “locations of tobacco product sales shall be permitted to furnish information on specific features, kind, and quality of tobacco products sold there and the levels of the materials harmful to health contained therein”. Besides, the law provides for the procedure of presenting compulsory information concerning tobacco products and restrictions of their sale: locations of tobacco products sales must contain notices warning about harmful effects of smoking to health, informing about prohibition to sell tobacco products for persons under the age of 18 as well as other restrictions of selling tobacco products. By the way, the most important information must be presented to the consumer on the package of tobacco products, too, i.e. they must have: notices in Lithuanian (on the sides of the packages) as to the level of tars and nicotine contained in the tobacco products; warning notices in Lithuanian about harmful effects of smoking to health; trade marks. Without such notices sale of tobacco products in Lithuania is prohibited. The Constitutional Court notes that the Constitution does not define the level of restriction of the freedom to information. It means that to choose and establish the level of restriction is an unquestionable prerogative of the legislator. Of course, in order that such restrictions were in compliance with the concept and requirements of justice, the aforementioned criteria of lawfulness and necessity in a democratic society should be taken account of. Various restrictions of advertising of alcoholic beverages and tobacco products are established in some other countries, too. According to the data of the World Health Organisation, in 1991 total ban on tobacco advertising was imposed in 27 countries of the world (13 of the said countries were in Europe). In addition, in 77 states various partial restrictions on tobacco products advertising are imposed. There is a still greater variation as regards restrictions of alcoholic beverages advertising: in 10 European states ban on advertising for strong alcoholic beverages on television, radio and billboards is imposed, whereas ban on advertising for beer - in 6 European countries (Alcohol in Europe - a Health Perspective: WHO Regional Office for Europe, Copenhagen, 1995). Therefore it should be concluded that the prohibitions or restrictions of advertising provided for in the Lithuanian Law on Alcohol Control or the Law of Tobacco Control may not be regarded as unprecedented if compared to other European or world states. The petitioner also points out that Part 3 of Article 46 of the Constitution stipulates that “the state shall regulate economic activity so that it serves the general welfare of the people”. Therefore when judging whether the disputed legal acts are in compliance with the Constitution one has bear in mind that in a market economy advertising is one of the factors directly influencing production increase. It is emphasised in the petition that different economic entities have not equal conditions of their economic activity as certain entities occupied with legal activity have the opportunity to advertise themselves while other entities occupied with legal activity are deprived of such an opportunity. Assessing legal regulation of advertising in Lithuania, one indeed has to take account of the provision of Article 46 of the Constitution. The provision “the State shall support economic efforts and initiative which are useful to the community” of Part 2 of the said article means, first of all, the possibility consolidated by the Constitution for the institutions of power to assess spheres of economic activity as to their benefit for society. Secondly, only on the basis of such an assessment and grouping is it possible to realise the consolidated right of supporting particular spheres of economic activity or particular economic efforts. Finally the said assessment of economic activity constitutes necessary preconditions to implement the provision of Part 3 of Article 46 of the Constitution which reads: “The State shall regulate economic activity so that it serves the general welfare of the people.” On of the most important emphases of this provision is a possible differentiated legal regulation of economic activity. Its main criterion is a general welfare of the people. It is a rather general and broad criterion and in its application one may base oneself on the concept of general welfare as well as the arguments of purposiveness. Thus it would be incorrect to comprehend the quoted provision of Article 46 of the Constitution as the duty of the state to decisively support any economic efforts or activity. On the contrary, as it has been mentioned, in this case the state has the opportunity of choice. On the other hand, people’s welfare may not be understood only in material (financial) sense. Furthermore, hardly would it be fair and moral to seek material welfare in such a way which is harmful to people’s health. It should also be noted that restriction of advertising is one of the ways applied to reduce the unrestricted promotion and consumption of materials which are harmful to people’s health. For instance,
of the Law on Alcohol Control determines: to reduce accessibility of alcoholic beverages through taxation; to limit through state regulatory means, private profit, obtained from the manufacture of alcoholic drinks, import and trade in alcoholic beverages; to limit the support and sales of alcoholic beverages; to augment public informativeness concerning the questions of social and economic harm to health and economy, resulting from alcohol use etc. Accordingly,
of the Law on Tobacco Control determines: reduction of smoking product availability through taxation; prohibiting of use of state and local budget funds for growing tobacco, manufacture of its products and development of domestic trade and import; increase public information concerning social and economic harm inflicted upon health through smoking product consumption. Besides, in order to ensure the control for observing laws a special system of institutions has been created, as well as responsibility has been established for violations of laws. 2.
DI paaiškinimas pagal oficialų įstatymo tekstą. Orientacinis, nepakeičia teisinės konsultacijos.