菸品包裝管制與言論自由、財產權限制之違憲審查──美國、加拿大、澳大利亞與臺灣比較

Unconstitutional Review of Freedom of Expression and Property Rights on Tobacco Packaging Control: United States, Canada, Australia and Taiwan Compared

菸商對於世界各國提高菸品容器管制，尤其針對提高警示圖文面積，甚至所謂的無裝飾包裝等，已經在世界各國提出訴訟，並主張違反各國憲法保障之言論自由或財產權規定。美國二○一二年華盛頓特區巡迴上訴法院對於警示圖文面積50%之規定違憲，並採商業言論之審查標準。相對地，加拿大最高法院於二○○七年判決，認為警示圖文面積提高為50%之規定合憲，未違反言論自由。澳大利亞於二○一一年通過無裝飾包裝法，二○一二年該國高級法院判決該法並不構成財產權之徵用。這些在世界主要國家已經出現過的憲法爭議問題，以及該等國家的判決意見與討論分析方式，值得我國在後續面臨相關訴訟時，加以借鏡參考。最後回到本國脈絡，討論可能的違憲審查論述。

Article 6 of the “Draft Amendment to the Tobacco Hazards Prevention Act” adopted by the Executive Yuan at the end of 2017 hopes to increase the current warning graphic area from 35% to 85%. At the end of May 2020, the National Health Administration of the Ministry of Health and Welfare proposed an “announcement amendment” to the Tobacco Hazards Prevention Act and attached a draft amendment. They also hope to increase the current 35% area to 85%. Tobacco merchants have filed lawsuits in various countries around the world, against the control of cigarette containers, especially the increasing area of warning graphics, even the so-called plain packaging,and claim to violate the freedom of speech or property rights guaranteed by the constitutions. In 2012, the United States Circuit Court of Appeals in Washington, D.C., ruled that the warning graphic area be raised to 50% unconstitutional, and based on the review standard of commercial speech. In contrast, the Supreme Court of Canada ruled in 2007 that the provision to increase the area of warning graphics to 50% was constitutional and did not violate freedom of speech. Australia passed the plain packaging law in 2011, and the country’s High Court ruled in the following year that the law does not constitute the acquisition of property. The aforementioned constitutional controversies that have occurred in major countries of the world, as well as the judgment opinions and discussion and analysis methods of these courts, are worthy of reference as Taiwan may face the relevant litigation in the future. Finally, This research concludes by returning to similar issue in Taiwan and discuss its possible constitutional review.