Right to health and tobacco harmfulness: discrepancies between the jurisprudence of the Supreme Court and the Superior Court of Justice

Abstract

The Superior Court of Justice - STJ - has a long-standing case law denying the right to compensation to smokers and their families when they seek compensation for damage to health caused by tobacco products. For the STJ, the free will of the smoker prevails when deciding to smoke, even if he/she knows the health risks inherent in tobacco consumption. The court also considers that, under the Consumer Protection Code, cigarettes are not defective products, as they do not offer legitimate expectations of safety to the consumer. Apparently, the STJ's orientation contrasts with decisions of the Federal Supreme Court - STF - which give primacy to the protection of goods such as health and the environment when put at risk by economic interests. The present article seeks to emphasize the contrast between the two orientations, especially after the STF decision that considered constitutional the prohibition of tobacco advertising