EU tobacco regulation on track following three challenges

In collaboration with the Press Association

The EU acted lawfully in adopting rules around tobacco regulation within its Member States, according to a preliminary European Court of Justice (ECJ) Opinion.

Challenges to three areas of its 2014 Tobacco Products Directive (TPD) – relating to the ban on menthol flavouring in cigarettes, regulation of electronic cigarettes and the overall legality of the TPD itself – have been effectively dismissed by the Advocate General of the EJC.

“The big tobacco companies are throwing all their might into thwarting measures that will protect children from a deadly addiction" - Alison Cox, Cancer Research UK

Cancer Research UK has welcomed the Opinion of Advocate General Kokott, who concluded today that the Directive has firm legal grounding.
Alison Cox, Cancer Research UK’s director of prevention, said: “This is a welcome Opinion by the Advocate General and a further step on the road to reducing the devastating impact of smoking.”
Kokott emphasised that standardising the labelling and packaging of tobacco products – including pack size, minimum numbers of cigarettes they contain and health warnings – is legally valid, and that there is potential for EU members to take these measures further.
These and other measures introduced, she believes, do not infringe the principles of equal treatment, free competition, proportionality or the fundamental rights of manufacturers to conduct business.
Kokott dismissed a case put forward by the Polish government which challenges the ban on menthol flavouring in cigarettes. She says menthol has the potential to aid people in taking up smoking by masking the taste of tobacco. 

E-cigarette maker, Totally Wicked, also saw its case dismissed. It claims the law to apply a ban on advertising for electronic devices is a contravention of EU law, but Kokott deemed that the special rules are proportionate.

Cancer Research UK’s Alison Cox said that there was an important balance to be made in ensuring e-cigarettes are regulated to protect non-smokers and children while still ensuring they don’t prevent smokers from using the devices.
“We believe e-cigarettes need light touch regulations which will help guarantee products are safe and effective, and prevent them being promoted to non-smokers and children,” she said. 
“But the implementation of these regulations needs to be monitored to ensure that they don't prevent smokers who want to use e-cigarettes from doing so. It’s important that people who want to, are able to move away from tobacco cigarettes, which are responsible for one in four cancer deaths.”
The final challenge to the TPD came from tobacco giants Philip Morris International and British American Tobacco, who combined in an attempt to overthrow the entire Directive. The challenge argued that the regulations infringe the principle of subsidiarity – in this case referring to the devolution of power to individual Member States. This challenge was also dismissed in Kokott’s preliminary Opinion.
“The big tobacco companies are throwing all their might into thwarting measures that will protect children from a deadly addiction,” said Cox. 
“The Tobacco Products Directive is evidence based and designed to help end the smoking epidemic that kills 100,000 people in the UK alone each year,” she added.
Today’s ruling is preliminary, with the court’s final decision to follow later in 2016.
Deborah Arnott, chief executive of health charity ASH, said: “The Advocate General’s Opinion is very clear: the Directive is lawful and the UK is allowed to go further in standardising the pack. We await the final judgement of the European Court of Justice but it is unlikely to differ from the Opinion.”