Issue:
Whether the resolution issued by the Superintendence of Industry and Trade to stop a public health campaign on the risks of sugar-sweetened beverages was in violation of the rights of freedom of speech, information, and due process.
Summary:
In August 2016, the Colombian Association of Consumer Education [Asociación Colombiana de Educación al Consumidor, or Educar Consumidores] launched a public information campaign to inform consumers of the risks of consuming sugar-sweetened beverages, called “Take care of your life, take it seriously” (in Spanish, “Cuida tu vida, tómala en serio”).
A food company, Gaseosas Posada Tobón S.A. (Postobon) filed a complaint with the consumer protection agency of the Superintendence of Industry and Trade [Superintendencia de Industria y Comercio, or SIC]. The company alleged that the campaign was failing to provide adequate and complete information about sugar-sweetened and other sweetened beverages. Specifically, it argued that the campaign failed to represent that: i) some products are sweetened not by sugar, but by sweeteners; ii) not all products contain the same quantity of sugar; iii) harm to health is caused by the excessive consumption of any product containing sugar; iv) no evidence demonstrates that consumption of any of the products targeted by the campaign is harmful; and v) some products contain higher quantities of sugar, but the campaign only targets juices, sodas, and iced tea.
In September 2016, the SIC issued Resolution No. 59176 de 2016, by which it demanded that Educar Consumidores stop the communication campaign immediately. Moreover, it held that, in the future, the organization would need to submit to its offices all the documents related to any similar campaigns it intends to launch for an ex-ante control.
Immediately after, Educar Consumidores lodged the first of a series of lawsuits [acciones de tutela] in civil courts against the decision of the SIC, arguing that it was taken in violation of the fundamental rights to freedom of opinion, information, and due process. In 2017, the case landed before the Constitutional Court [Corte Constitucional].
In its decision, the Constitutional Court held that the resolution issued by SIC violated the right to a due process, and the right to freedom of information (as a component of the right to freedom of expression). The right to freedom of information consists of the right to inform, and the right to be informed. In this case, it applies to the right of Educar Consumidores to provide consumers with public health information, and the right of consumers to receive this information. The campaign launched by Educar Consumidores, in fact, was not marketing a product but instead providing information to the public. Therefore, as a speech protected under the freedom of expression, it should have greater protection than advertising.