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280 Chapter 12
Whilst Alexy is persuasive in his analysis of the balancing process at
issue (the question of legal possibility), he does not deal with whether the
government measure in question was in fact necessary for achieving the
purpose in question. If we take the strong view of necessity, then a measure
will only be justifiable if there are no less intrusive means available to realise
the goal in question. One of the really difficult problems flowing from
Alexy’s theory lies in evaluating the claim made by the legislature in this
instance that there are no alternative means available other than the
placement of health warnings on cigarette packets that are less restrictive of
the rights of the manufacturers and would equally serve to achieve the
purpose in question.
Indeed, when we begin evaluating this case, the uncertainty of any
necessity claim (and in fact the suitability claim as well) made by the legislature
becomes more evident. First, establishing an empirical grounding for its claim
would require showing that placing health warnings upon cigarette packets are
likely to result in a decrease in smoking: The difficulties of producing such
empirical evidence should be evident (this would thus challenge the empirical
grounding for the ‘suitability requirement’). Secondly, alternative measures
could easily be developed which do not require tobacco producers to place
health warnings on their packets (and thus be less restrictive of the right in
question). Indeed, one may question the very effectiveness of such a
government measure given that the people buying the cigarettes are likely to be
the ones least interested in these health warnings. Thirdly, broader public
educational measures, or a major advertising campaign, would perhaps be
more effective means to achieve the public health objectives set by the
government and be less restrictive of the rights of manufacturers.
Even if a court were to disregard these worries, and find that placing
warnings on cigarette packets was a necessary measure to achieve the
government’s legitimate aims, it is also important to recognise that the
manner in which such a measure is implemented will clearly be relevant to
a determination of its proportionality and whether it is least restrictive of the
manufacturers’ rights. It would be possible, for instance, for the government
to subsidise any costs incurred in the process of placing these health warnings
which would seem to be less restrictive of the commercial interests of the
tobacco manufacturers. Should courts therefore require governments to pay
for such measures where rights are implicated? Moreover, it seems that there
would always be a very difficult determination to be made by courts as to the
acceptable size of any such health warning: was the size of the warning
required by the legislature the least intrusive possible of the manufacturers’
right to place commercial information on the cigarette packet?
The questions I have raised are not designed to demonstrate that the
case in question was wrongly decided in favour of the government. Indeed,
it seems intuitively clear to me that there is a reasonable case to be made
that health warnings on cigarette packets represent a justifiable interference
with the rights of commercial manufacturers in the interests of public