EU Advocate General Opinion: Tobacco Products Directive is lawful, and the UK can go further in standardising the pack

Wednesday 23 December 2015

Today the Advocate General of the European Court of Justice has issued an Opinion on three different legal challenges to the EU Tobacco Products Directive. [1]

Advocate General Kokott has concluded that the new EU Tobacco Products Directive of 2014 was lawfully adopted, effectively dismissing all three of the legal challenges. In her view, the Directive is based on the correct legal basis for internal market harmonisation measures and does not infringe the principles of equal treatment, free competition, proportionality or the fundamental rights of manufacturers the right to conduct a business – which the tobacco companies had challenged.

In particular she stated that the standardisation of the labelling and packaging of tobacco products (such as size, minimum content, and health warnings) are valid and that there is scope for Member States, like the UK, to go further in standardising the pack.

Dismissing a case brought by the Polish government which challenged the ban on menthol flavouring in cigarettes, she argued that in common with other characterising flavours, menthol can mask the pungent taste of tobacco which creates a risk that flavoured cigarettes can facilitate the take-up of smoking.

AG Kokott also dismissed the legal challenge brought by E-cigarette manufacturer, Totally Wicked, which is claiming that Article 20 of the Directive on the regulation of electronic cigarettes is in contravention of EU law and that it is inappropriate to apply the rules banning the advertising of tobacco products to electronic cigarettes. AG Kokott argued that the special rules for e-cigarettes were proportionate.

The tobacco companies Philip Morris International and BAT are jointly seeking to overturn the whole Directive, arguing that the Directive is invalid and infringes the principle of subsidiarity, i.e. the principle of devolving power to the lowest appropriate level of government, in this case individual Member States.

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.”

Notes and Links:

Action on Smoking and Health is a health charity working to eliminate the harm caused by tobacco use. For more information see:
ASH receives core funding from Cancer Research UK and the British Heart Foundation.

[1] Summary of Advocate General’s Opinion – ECJ Press release:
Although not legally binding, the Opinion helps to inform the European Court’s decision on the outcome of these legal challenges.
Text of EU Tobacco Products Directive:

[2] Case C-547/14 by PMI is challenging several aspects of the directive, and is supported by Japan Tobacco and Imperial Tobacco. The PMI statement of facts and grounds alleges that the directive is invalid because the EU Legislature has acted without a valid legal basis, that parts of the Directive are disproportionate, that it delegates too much power to the European Commission and that it infringes the principle of subsidiarity (encroaches on powers of member state parliaments). BAT is challenging several aspects of the directive, using similar legal arguments to PMI. These cases have been combined.

See also:
[3] Case C-477/14 by Pillbox 38 (UK) Limited, trading as “Totally Wicked”
[4] Case C-358/14 by Poland. The Polish government is challenging the ban on menthol as a flavouring in tobacco products. (NB The Directive allows for a phase out of menthol flavouring for a further 4 years, i.e. until 2020.)

The legal challenge to the Tobacco Products Directive by the tobacco industry follows a long campaign to weaken the legislation. For more information see: Peters S et al. The revision of the 2014 European tobacco products directive: an analysis of the tobacco industry’s attempts to ‘break the health silo’. Tobacco Control 2016; 25:108-117

Contact: Deborah Arnott 020 7404 0242 (w) or 07976 935 987 (m)