O imposto seletivo como instrumento extrafiscal de mitigação das externalidades da indústria fumageira

Abstract

The present dissertation is situated within the concentration area “Law and Innovation”, in the research line “Human Rights, Person and Development: Innovation and Legal Regulation in the Context of Globalized Capitalism”, of the Graduate Program in Law and Innovation at the Federal University of Juiz de Fora, by articulating taxation, fundamental rights, and the legal regulation of harmful economic activities in a scenario marked by high social, health, and distributive costs. This dissertation aimed to examine the effectiveness of the extrafiscal function of the Selective Tax, introduced by Constitutional Amendment no 132/2023 and regulated by Supplementary Law no 214/2025 and Supplementary Law no 227/2026, as an instrument to reduce social negatives results by discourage the commercialization of products from the tobacco industry, in light of the protection of collective health, tax justice, and the internalization of negative externalities associated with smoking. The theoretical framework was grounded in post-positivist legal theory, particularly the Theory of Law as Social Practice, in dialogue with neoconstitutionalism and with the centrality of fundamental rights and tax justice, understanding extrafiscality as a legitimate function of the tax system aimed at inducing socially desirable behaviors and correcting structural market imbalances. The research adopted an exploratory design, with qualitative and quantitative approaches, employing the legal-deductive method, normative analysis of Constitutional Amendment no 132/2023 and Supplementary Law no 214/2025, as well the Constitution of the Federal Republic of Brazil from 1988, as an interdisciplinary literature review in economics and health. In addition, an empirical investigation was conducted at the Muriaé Cancer Hospital, based on jurimetric analysis of medical records and the collection of epidemiological and financial data related to lung cancer between 2015 and 2023. In this context, the analysis of the sensitivity of consumption to price changes, under scenarios of demand inelasticity, was used as a criterion to examine the limits of the extrafiscal effectiveness of the Selective Tax, with particular emphasis on tobacco products. The results of the search has demonstrated that a mere increase in the tax burden, in a context of inelastic demand, proved insufficient to significantly reduce consumption and may contribute to exacerbating regressive effects, disproportionately burdening socially vulnerable groups, in addition to stimulating dynamics typical of the tobacco sector, such as the expansion of illicit trade and the intensification of counterfeiting practices. It was also found that, when implemented in a fragmented manner and reduced to a purely revenue-oriented logic, the Selective Tax loses its extrafiscal effectiveness and compromises its constitutional objectives. The study concluded that optimizing the Selective Tax as a behaviorinducing instrument depends on its articulation with integrated public policies, technical criteria of harmfulness, control and periodic review mechanisms, as well as on the adequacy of a legal nature to a model that allows the earmarking of revenues by Institutional framework for preventive, therapeutic, and educational actions, in order to avoid distributive distortions and ensure compatibility with tax justice and the protection of fundamental guarantees. Based on these findings, the study presents proposals aimed at improving the Selective Tax. Among them are the establishment of technical criteria for the selection of taxable goods and for the calibration of tax rates, combined with mechanisms for periodic review; the rationalization of the moment of tax incidence in order to promote greater organization and efficiency in oversight; the readjustment of its legal nature to allow the creation of institutional mechanisms for the earmarking of collected revenues; and the establishment of an anti-tobacco fund aimed at financing preventive, therapeutic, and educational public policies within the Public Health System, with provisions for transparency, social oversight, and institutional supervision by oversight bodies and competent courts of accounts.