Photo: Sonny Abesamis

Executive Summary Decision T-543 of 2017

Dejusticia | February 27, 2018

The Constitutional Court held that the Superintendency of Industry and Commerce censored the organization Educar Consumidores, and it cautioned the Superintendency that henceforth it could not exercise prior control over informational contents.

 

In August 2016, Educar Consumidores, a non-profit organization that works for the implementation of health policies in Colombia, launched a commercial that was broadcast on television and also several radio stations in the country that showed the sugar quantities of several sugary drinks. Postobón S.A., a Colombian sugary drinks company, filed a proceeding against the commercial for alleged “false advertising”.

In a decision dated September 7, 2016, the Superintendency of Industry and Commerce (SIC), a Colombian entity responsible for monitoring consumer rights, issued Resolution 59.176, ordering Educar to stop broadcasting the commercial in all the media channels where it was circulating, including the internet. Additionally, it ordered Educar to “forward to the Superintendence of Industry and Commerce any advertising piece related to the consumption of sugary drinks […] before its broadcast so preventive control over the information can be carried out”.

In response to Resolution 59.176, two tutelas were initiated. The Constitutional Court selected the two tutelas for review and unified
them in a single case file. Through decision T-543 of 2017 the Constitutional Court examined the two proceedings and decided on the substance of the petitions.

Some important aspects of the decision that the Court made were:

  • This is the first time that the Constitutional Court of Colombia rules in favor of the right of consumers to receive information about the effects of sugary drinks on their health.
  • The Court advised the SIC that it cannot exercise prior control over public health information in any other case and reiterated the criteria that must be fulfilled in cases where there is an intent to limit freedom
    of expression.
  • The Court recalled 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. That is to say, it recognizes it is a “two-way street” right.

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