Porta, Pedro Juán v. Provincia de Buenos Aires

P. 891 XXXIX
Download Judgment: Spanish
Country: Argentina
Region: Americas
Year: 2015
Court: Supreme Court of Justice [Corte Suprema de Justicia de la Nación Argentina]
Health Topics: Medicines, Public safety
Human Rights: Right to property
Tags: Health regulation, Medicines, Public safety

The plaintiff brought the case to the Supreme Court of Justice by original jurisdiction to initiate a declarative action (an preventive action to request the cessation of a state of uncertainty that cause a harm and there is no legal alternative way to end that situation) against the Province of Buenos Aires to declare the unconstitutionality of the decree-law 1420/83 of the Ministry of Agriculture provincial resolution 13/89 and article 50 of local law 10.526. The regulation prohibited selling its over the counter veterinary product, authorized by the National Service of Agrifood Health and Quality [Servicio Nacional de Sanidad y Calidad Agroalimentaria (ex SENASA)], in hypermarkets because there was no veterinarian in the establishment. He based his claims in articles  50, 14, 16, 19, 28, 31, 42, 43, 75.13 and 75.18, 123 and 124 of the National Constitution, federal laws 13.636 and 24.307, decree 2284/91 about economic deregulation and antitrust law 25.156 and law 24.240 about consumer protection.

The Supreme Court of Justice held that it was a case of original jurisdiction and dismissed the claim. To do so, it found that a over the counter veterinary product did not mean that could be sold in any establishment with any condition, it only meant that because of the characteristics of the product it can be sold without a prescription but in an establishment that counts with a veterinarian. That requirement was established by the Province of Buenos Aires in the exercise of the police power to the protection of public safety. At the same time, there was no conflict between the federal and the local norms because they both establish similar requirements for the safe use of over the counter veterinary products and the plaintiff didn't evidence in which way this requirement was against the National Constitution and in which ways it hinder his commercial activity.

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