Standardised Packaging: Tobacco industry claims for compensation “blown out of the water”

Monday 09 March 2015

On the day MPs are debating the Regulations prior to a vote, a Legal Opinion has been published which concludes that standardised (“plain”) packaging of cigarettes and other tobacco products is compatible with European law, and compensation would therefore NOT be due the tobacco industry.

The Opinion [1] was commissioned by Action on Smoking and Health (ASH) and Cancer Research UK from Alberto Alemanno, Jean Monnet Professor of Law at HEC Paris and Global Clinical Professor at NYU School of Law, and Amandine Garde, Professor of Law at Liverpool University. They conclude that: “In this Legal Opinion, we have focused on the compatibility of the UK draft Standardised Packaging of Tobacco Products Regulations with EU law. We concluded that all the packaging requirements they propose are compatible with both the EU TPD [2] and, more generally, EU law.” They also state that: “Our analysis suggests that the UK Department of Health enjoys a broad margin of discretion to introduce a standardisation scheme of tobacco products… The evidence supporting standardised packaging keeps accumulating. The Chantler Review [3] adds to the calls for standardised packaging … The UK’s proposed regulations and its Impact Assessment draw on this evidence and present it is as clearly as possible [given] the conditions the TPD and the EU Treaties lay down to determine the validity of a national scheme standardising tobacco products.”

The Opinion also states that the Regulations are lawful under EU law relating to trademarks, and “fundamental rights”, both of which do not prevent Member States from introducing legislation to protect public health.

The tobacco industry has claimed that the industry would be due billions of pounds in compensation [4] if standardised packaging were to proceed in the UK, but this Opinion demonstrates these claims are not substantiated.

Professor Alemanno said:

“Our analysis demonstrates that under current EU law the UK Government is entitled to regulate the packaging of tobacco products well beyond what the EU prescribes. The UK government therefore enjoys considerable freedom of action in regulating the presentation of tobacco products, particularly given the overwhelming evidence of the harm that tobacco consumption causes. There is also a carefully established and strong evidence base supporting the introduction of standardised packaging. For these reasons, we believe that any challenge by the tobacco industry against standardised packaging under European law is unlikely to succeed.”

Deborah Arnott, Chief Executive of health charity ASH said:

“The Legal Opinion we are publishing today blows out of the water the ludicrous and unjustified claims by the tobacco industry that it would be due billions of pounds in compensation if the UK proceeds with standardised packaging. It clearly demonstrates that the UK Government has a robust case for the regulations under European law. We are also confident that MPs will vote for the standardised packaging regulations by a large majority this week. There is strong support amongst parliamentarians from right across the political spectrum for this important public health measure to protect children and save lives.”

Alison Cox, Director for Cancer Prevention at Cancer Research UK added:

“The public health community has been united in calling for the introduction of plain, standardised packaging of tobacco products across the UK. The growing weight of peer-reviewed evidence that standard packs reduce the appeal of smoking to children has crushed the tobacco company counter claims. Now international legal experts have exposed the fatal weakness of the industry threats against EU countries who want to protect their children from tobacco marketing. This report systematically knocks away every leg of Big Tobacco’s arguments, and leaves them floored. Standardised packaging is evidenced based, legal and supported by 72 per cent of UK adults. We urge MPs to vote to for this vital public health measure when they get the opportunity.”

The authors of the Opinion also warn that the tobacco industry will try to mount legal challenges to standardised packaging under international trade rules, through the World Trade Organisation, as they have done with respect to the Australian plain packaging laws. On 5 May 2014, the Director-General of the WTO appointed panellists to examine the complaints made against Australia’s plain packaging law by Ukraine, Honduras, the Dominican Republic, Cuba and Indonesia. Most legal experts on trade law and public health consider the challenges are likely to fail. [5]


Notes and Links

[1] The legal opinion is available on this page of the ASH website.
[2] The revised EU Tobacco Products Directive came into force on 19th May 2014. It contains requirements for tobacco packaging to include prominent health warnings, although it does not mandate standardised packaging. EU Member States must bring their national legislation in line with the revised Directive by the first half of 2016.
[3] Standardised Packaging. A report of the Independent review undertaken by Sir Cyril Chantler. April 2014.
[4] BBC News. Big tobacco fuming: Philip Morris threatens to sue over plain cigarette packaging. August 13th 2014.
[5] See for example: Dispute in the World Trade Organization, McCabe Centre for law and Cancer