1. Introduction

From the 20th century onwards, the right to development was systematized and became part of the list of human rights, in particular with the drafting in 1986 of the “Declaration on the Right to Development”, inspired by the Universal Declaration of Human Rights – UDHR. 1948, and the international treaties that originated from it, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Both from 1966.

An important reference in the systematization is the attention that must be focused on the human person, either as the recipient or as an active participant in the social, economic, cultural, and political processes capable of fostering the development and well-being of the population, with the removal of negative discrimination to promote equality, freedoms and human dignity.

The democratic vision is ratified in the search for a community order that must act on behalf of all and for all, according to pressing social needs. In other words, it is about individual and collective development, with the greatest ethical and legal reference since 1948 and the Universal Declaration of Human Rights, the aforementioned International Covenants of 1966, at the internal level of each country within the United Nations Organization – UNO, and in the post-1948 period, the Constitutions established the dignity of the human person and the consequent protection of public health as a way of enabling development in conditions of social justice and without denying the protection of fundamental freedoms.

The context of the systematization of the right to development advances significantly with the Declaration on the Right to Development, 1986, as a step towards seeking cooperation between nations and international collaboration is affirmed as one of its conditions for effectiveness. Discussions on sustainability have already been announced, but it is the 21st century that will set universal goals to save the planet and humanity, highlighted by Agenda 2030 and the Sustainable Development Goals.

The dignity of the human person depends on the effectiveness of fundamental human rights, in this article, through the protection of the right to health and policies for its prevention, promotion, and recovery, in particular anti-smoking, which promotes the well-being of the community on an equal footing for sustainable development. The analysis of normative documents and the deductive method were used.

2. Right to Development: an inalienable human right

The right to development is cataloged as an inalienable human right of all individuals, recipients of it, and major actors in its realization, which must be translated into economic, social, cultural, and political processes that are capable of providing the well-being of the entire population, always paying attention to people’s social needs and identifying them as their essential reference from which they should not deviate. Therefore, whether on an individual or collective level, it is intrinsic to the right to development, and a condition for it to be realized, to focus on human persons and the need to pay attention to their two facets of subjection, recipient of development and participant in the same process.

The systematization of the right to development in the twentieth century is based on the major ethical reference of human rights and continues until the Present day of the Universal Declaration of Human Rights – UDHR, 1948, which recognizes the human condition as having the same dignity, affirms peace, freedoms, and equality. From this point of view, in 1966 there was a reaffirmation of these values, which are so significant for constitutionalism and democracies, in addition to the Constitutions, also on the legal level, through the International Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights. It reinforces the intrinsic human dignity in each of the facets of human rights protection and the role of everyone as participants and recipients of their affirmation.

In 1986, the General Assembly of the United Nations – UN, proclaimed the Declaration on the Right to Development and specifically addressed this centrality in the human person in this entire process that must seek the integral development of people and the economic, social, and cultural development that promote the self-determination of people and a view of equality that eliminates all forms of discrimination so abject that historical experiences relate in facts.

Peace, the dignity of the human person, freedoms, and equality are added to the attention paid to humanity through the goals for a sustainable planet. The UN Charter’s reference point, “We, the peoples”, was used in 2015 to define the Sustainable Development Goals – SDGs – in the 2030 Agenda. There are 17 goals to be met by all people to achieve a better planet by 2030. One of the specific goals that interest us is described in SDG 3 – “Ensure healthy lives and promote well-being for all at all ages”. In particular 3.a “Strengthen the implementation of the Framework Convention on Tobacco Control in all countries, as appropriate”.

The topic we are dealing with involves the right to development, with attention to each of the ethical and legal benchmarks described above, in other words, with emphasis on the application of the principle of human dignity in choices that can provide for people’s health and well-being sustainably. It is worth highlighting the condition of people as active participants in the process of choices that affect the good of all, and benefit from fully developing health protection measures, in the case under study through a public consultation carried out recently by the National Agency of Health Surveillance – ANVISA, December/2023, on maintaining the ban on electronic cigarettes, as a way of giving effect to the 2030 Agenda – Sustainable Development Goals, SDG 3 “Ensure healthy lives and promote well-being for all at all ages”.

3. Fundamental Right to Health and public policies

Life with dignity is the result of choices. Individual choices affect each individual in an immediate and personal way, but also, in a secondary way, the people we live with and the community. Mutual affection is affirmed through the choices that each person makes, always with respect for the relational experiences that must be oriented in democracies towards a social purpose, which translates into the pursuit of the common good. This is also the constitutional imperative of state decisions in carrying out each of its tasks with the aim of social welfare, the pursuit of the good of all, and the public interest.

Public Administration in its subjective and objective sense encompasses the structuring of state power in its threefold legislative function, legislative, executive and judiciary and in their respective spheres of the federation, through its subjects it must act in accordance with expressed and enumerated constitutional competencies in the search for achieving a greater purpose that meets the search for the common good and the integral development of the human personality.

The discussion that needs to be remembered and reiterated is the one involving choices that can affect people’s health and prevent them from living a dignified life, in this study the issue of smoking, an internationally recognized disease with consequences that can lead to a lack of quality of life and also reduce the number of people who become disabled or die.

Smoking affects people in a very negative way and runs counter to the constitutional foundations that guide the common good and human dignity by offending the fundamental right to health.

The protection of the fundamental right to health, a right of all and a duty of the State, has long been guided by some long-standing and successful State public policies in Brazil, through which the protection of public health, a collective goal to be sought and carried out, it also occurred through the ban on the sale of electronic cigarettes, especially due to the lack of knowledge of the effects that such devices generate with their use.

This is not a new discussion, but rather the necessary ratification and reiteration of information about one of the long-lasting and successful health protection policies in reducing the harm caused and experienced by the use of smoking products, in the present study, Electronic Devices for smoking – DEFs.

The right to development is established by the growth of people at the individual and collective level in social, economic, cultural, and political processes, and based on their active participation, as we stated above, the concern with maintaining the health status of people is evident. people as an individual interest and, above all, also as an interest of the State, which assumes this task and objective in the list of fundamental principles and list of fundamental social rights as an express duty, and cannot be neglected. A healthy life is important for people’s development and for achieving the social purpose of the Brazilian state, so sustainable development can only be achieved by promoting the good of all in an awareness of the solidarity of the human race.

This protection is reinforced by a collective planetary goal, Agenda 2030 – Sustainable Development Goals, in which humanity is called upon to make responsible choices for a better life, as citizens of the earth who make choices that are sustainable.

4. Public consultation on banning the sale of DEFs Electronic Devices

The protection of people’s health and also the sustainability of the environment is very negatively affected by the use of smoking products, so much so that there is very clear and assertive information on the products themselves, cigarettes, cigarillos, cigars, among others, about the various harms caused by its use, which includes photos about the various diseases that are the effects of its consumption, phrases resulting from medicals-scientific protocols on the causal relationship between smoking and the various diseases cataloged by the Ministry of Health and the World Health Organization – WHO, as well as an express reference to the telephone number 136, dial-health, “stop smoking dial”, with the possibility of free treatment by the Unified Health System – SUS for smoking.

It should be noted that this information against the consumption of smoking products is the result of smoking, a disease cataloged and systematized by the International Code of Diseases – ICD -10, and its various adverse effects on the maintenance of health and dignified life. It is the sum of countless medical and scientific protocols that point to the cause of several very serious diseases caused by smoking and its effects, that is, a recognized disease with a worldwide incidence, according to symptoms, complaints, signs, and social circumstances, which involve the diseases and damage caused by it.

The 1988 Constitution expressly addressed the issue of health protection and removal or reduction of damage to it, through restrictions on commercial advertising of products that lead to various diseases and damage to the environment in Title VIII – Social Order , in Chapters II and V, respectively, Social Security and Social Communication, articles 196 and 220, 3rd, item II and 4th. Alongside the recovery of health through curative medicine, preventive measures, whether preventive medicine or policies that prevent illnesses are asserted.

It is worth remembering that the concern about the harmful effects of using cigarettes, and cigarillos, among others, since 1980 has been delimited through ethical standards of Commercial Advertising, in the Brazilian Code of Advertising Self-Regulation, in special categories of advertisements, attachments, prepared by the National Council for Public Self-Regulation – CONAR. In 1988, the Chapter on Social Communication expressly states the need to warn about the harm caused by smoking products in the commercial advertising of such products and to observe legal restrictions that would prevent diseases and maintain people’s state of health.

Important for the debate on the subject are the constitutional references regarding the development of economic activities in Brazil. It involves looking closely at the principles of the Economic and Financial Order, which highlights its relationship with the fundamental principles of the Brazilian Democratic State, that is, the freedom to develop all economic activity in Brazil is informed by the values of work, social justice and human dignity, in repetition and symmetry to the express foundations of our State, described in the sections of Art. 1 of the Constitution, with emphasis on the dignity of the human person.

Restrictions on cigarette advertising are stated to be an essential measure for reducing smoking in Brazil and around the world and reducing countless diseases and household pollution, a measure resulting from a policy that aims to protect health integrally, that is, from prevention until recovery. The Consumer Defense Code ratifies this policy through the express prohibition of misleading and abusive advertising in its Art. 37 and 1 to 3 in the consumer protection and defense system.

Since 2009, the National Health Surveillance Agency – ANVISA, through Collegiate Board Resolution No. 46 – RDC/46, established in Brazil a ban on the import, commercialization and all forms of advertising of Electronic Smoking Devices – ESDs, with the purpose of guaranteeing safe access to the products regulated by it. As all the effects and harms of using ESDs are unknown, the ban comes as a practical application of the precautionary principle.

Dialogue with all stakeholders took place, notably in 2019, after ten (10) years of existence of the aforementioned resolution and studies of the regulatory impacts through public hearings and, on 12.2023, a public consultation that can be answered until the beginning of February 2024.

It is understood that the constitutional regulations that are added to International Human Rights Treaties, with emphasis on the 2030 Agenda, Sustainable Development Goals, and the Framework Convention for Tobacco Control, signed and ratified by Brazil through decree 5.658/2006, should continue to guide the regulation of ESDs in Brazil because, if we do not have data capable of measuring the possible positive and negative results, the first stated especially by the companies that sell the products, we should not put people at risk or danger from exposure to the tobacco and smoking due to the use of ESDs.