Tobacco Companies’ Legal Challenge to Standardised Tobacco Packaging Fails: Other Countries to Follow UK Lead



19 May 2016.

Please note: key extracts from the judge’s ruling in the case are available online at http://tinyurl.com/zjgnxwn

The tobacco industry’s High Court challenge to the Regulations on standardised (“plain”) tobacco packaging met with a humiliating defeat today. The landmark judgement in the case will help other countries looking to introduce the policy: France and the Republic of Ireland have already passed legislation and other countries are expected to follow soon, including Canada, Hungary, Norway and Slovenia. [1]

Commenting, ASH Chief Executive Deborah Arnott said:

“This landmark judgement is a crushing defeat for the tobacco industry and fully justifies the Government’s determination to go ahead with the introduction of standardised packaging. Millions of pounds have been spent on some of the country’s most expensive lawyers in the hope of blocking the policy. This disgraceful effort to privilege tobacco business interests over public health has rightly failed utterly.”

The standardised packaging Regulations come into effect in the UK tomorrow (Friday 20th May 2016). All cigarettes manufactured for sale in the UK after this date must comply with standardised packaging regulations. Cigarettes and hand rolling tobacco will be sold in drab brown packages which have had all the attractive features and colours removed. [See illustration below]

ASH was an intervener in the case supporting the Government’s defence of the Regulations, and provided written evidence and an oral submission to the court. [2]

The judgement by the Hon Mr Justice Green rejects every argument the industry put forward in court [3]. It is highly critical of the industry’s use of expert evidence it commissioned to back its case and its failure to disclose any internal assessments on how packaging design works for children and young people and what the effect on standardised packaging on sales is likely to be. The judgement also notes that the great mass of the expert evidence put to the court by the tobacco industry was neither peer reviewed nor published in an appropriate scientific or technical journal.

ASH believes that disclosure of any relevant internal documents would be likely to undermine the tobacco companies arguments that standardised packaging will not work, because it would show the industry’s knowledge of how children and young people are recruited as smokers, and what role brand identity plays in this. At present, two thirds of current smokers started when they were children and research shows that dull standardised packs are less attractive to young people. [4]

The tobacco companies are now considering whether or not to appeal.
Notes and Links 

 

[1] See Plain Packaging – An International Overview. Slovenia notified the European Commission of draft legislation to require plain packaging on 16th March 2016, see http://tinyurl.com/hk7gnd3.

[2] ASH is very grateful to Peter Oliver and Ligia Osepciu of Monckton Chambers, and to Sean Humber of Leigh Day, who provided their legal services pro bono.

[3] Key issues in the case are listed below. The judge found in favour of the Government on all of them.

Proportionality

  • (a) Are the Regulations likely to discourage children from starting to smoke; (b) were there less drastic alternatives (e.g. price rises) and (c) they do not strike a fair balance between competing interests (i.e. between the tobacco industry and public health)

Regulations Process

  • Were the consultations on the Regulations adequate, and was the evidence submitted by the tobacco industry was treated unfairly in that there was an a priori assumption that it was suspect?

Tobacco Industry’s “Rights”

  • Do the Regulations breach Article 1 of the first Protocol of the European Convention of Human Rights (no expropriation of property with appropriate compensation); Articles 16 and 17 of the EU Charter of Fundamental Rights (freedom to conduct business and rights to property); or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an international agreement under the World Trade Organisation, and the EU Community Trade Mark Regulations (which provide for trade marks to have a universal application across the EU)

Article 24(2) of the Tobacco Products Directive

  • Should the Regulations should not have been passed before the result of the tobacco industry case in the European Court of Justice against Article 24(2) of the EU Tobacco Products Directive was heard? This provision permits Member States to go beyond the packaging requirements in the Directive, i.e. to introduce standardised packaging NB The tobacco industry lost this claim in the European Court of Justice, which issued its ruling on 4th May.

[3] Moodie et al. Plain Tobacco Packaging, A Systematic Review