The Constitutional Court recognizes the right of consumers to access information about the health effects of sugary drinks
The Constitutional Court ruled in favor of a tutela filed by Dejusticia and other organizations that make up the Food Health Alliance. This is an unprecedented ruling in favor of consumers in Colombia.
The Constitutional Court ruled in favor of a tutela filed by Dejusticia and other organizations that make up the Food Health Alliance. The tutela sought to protect the right of consumers to watch a commercial on the health effects of sugary drinks. On September 2016, the Superintendence of Industry and Commerce censored the commercial, at the same time that a debate on a sugary drinks tax began in Congress, which ultimately failed to pass.
On this same issue, Educar Consumidores (an NGO) also filed a tutela in which it argued that the Superintendence had violated its right to freedom of expression. The Constitutional Court responded to both tutelas in the same sentence (T-543 of 2017), in which it protected the right of consumers to receive the information presented in the commercial and, at the same time, the right of Educar Consumidores to freedom of expression.
This is an unprecedented ruling because for the first time the Constitutional Court is in favor of the right of consumers to receive this type of information. According to the ruling, this right is fundamental for the development of other rights such as health and the free development of personality.
In its decision, the Court states that timely access to this type of information “guarantees protection and prevention in health-related issues, by admitting the presumed or eventual risks linked to aspects of the development of these products” and also “enables the free selection of food products that (consumers) want to consume, according to their own life orientation“.
In addition to recognizing the right of Educar Consumidores to inform, and of consumers to receive information, this ruling established limits for the Superintendence of Industry and Commerce by claiming that it cannot exert any kind of prior control over information. The sentence described prior control by state authorities over the content of the messages to be transmitted by the media, including the internet, as censorship.
This ruling also established a clear differentiation between the characteristics of an informative message (such as the Educar Consumidores’ commercial) and those of a commercial message or advertisement. The ruling of the Court explains that “advertising is the development of the right to private property, freedom of enterprise and economic freedom, rather than the application of freedom of expression, sufficient reason for advertising and commercial propaganda to be submitted to (…) greater control. ” According to the Constitutional Court, the audiovisual piece of Educating Consumers, far from being a commercial message, was intended to be a public health campaign that warned about the health risks of excessive sugary beverage consumption, and that is why it should be issued.