Case law relevant to the UK

Advertising Standards Agency (ASA)
The ASA is the self-regulatory organisation of the advertising industry in the UK. Codes and rulings on advertising of tobacco related products are available on the ASA’s website. All tobacco advertising is prohibited, but corporate advertising by tobacco companies is allowed, as is some advertising of smoking accessories, e-cigarettes and Nicotine Replacement Therapies (NRT).

Ofcom
Ofcom is the statutory communications regulator for the UK responsible for regulating TV, radio and video-on-demand sectors, fixed line telecoms, mobiles, postal services and airwaves. Its broadcasting code and complaint rulings are available on its searchable website.

R (on the application of Philip Morris Brands Sàrl) v. Secretary of State for Health, 2014

High Court ruling on challenge from tobacco firms, led by Philip Morris Brands Sàrl and involving British American Tobacco (BAT) and Philip Morris Limited, to transposition of EU Revised Tobacco Products Directive 2014 into UK law on the basis that the Directive was invalid under EU law.

• Delivered 7 November 7, UK wide.
• Ruled that the case should be referred to Court of Justice of the European Union (CJEU).
  

R (on the application of British American Tobacco UK Ltd) v. Secretary of State for Health, 2014

High Court ruling on challenge by tobacco firms, led by British American Tobacco UK Ltd and including Philip Morris Brands Sàrl and Philip Morris Limited, to the transposition of EU Revised Tobacco Products Directive 2014 into UK law.

• Delivered 24 October 2014, UK wide.
• Ruled that the case should be referred to Court of Justice of the European Union (CJEU).Rejected Polish National Association of Tobacco Growers’ application to intervene in the case.

R. v. Secretary of State for Health Ex Parte Imperial Tobacco Limited, et al., 2000

Ruling on Germany and several tobacco companies’ challenge to validity of EU Directive requiring member states to ban tobacco advertising and sponsorship in EU, and its transposition into UK law.

• Delivered 7 December 2000, UK wide.
• Court of Appeal set aside a lower court injunction on implementation of Directive until the European Court of Justice (ECJ) had ruled on Germany and tobacco companies’ claim.
• Parties asked the House of Lords to judge whether a national judge could intervene in this case; House of Lords did not provide a final decision on this procedural question.

The Queen v. Secretary of State for Health, ex parte Gallaher Ltd., et al., 1993

Ruling on tobacco companies’ challenge that UK’s warning labels were void as they were allegedly contrary to EU Council Directive 89/622/EEC.

• Delivered 22 June 1993, UK wide.
• Dismissed appeal, ruling EU Member States may require warning labels to cover a greater surface area than minimum requirements set forth by the directive.

Black v. Secretary of State for Justice, 2016

Appeals Court ruling on legality of smoking in state-run prisons, regarding Justice Secretary’s appeal against an earlier lower court ruling banning smoking in prisons, including state prisons, as an extension of national ban on smoking in workplaces.

• Delivered 8 March 2016, UK wide.
• Appeals Court reversed earlier ruling, ruling that state prisons are not required to implement the smoking ban as the state is not bound by national law banning smoking in workplaces.

Black v. Secretary of State for Justice, 2015

Lower court ruling on whether smoking should be prohibited inside state prisons, regarding a prisoner’s claim that smoking should be banned inside their prison.

• Delivered 5 March 2015, UK wide.
• Ruled that national ban on smoking in workplaces applied to prisons, including state prisons.
• Ruled that it did not violate human rights laws or prison rules to deny prisoners access to a confidential complaint line to complain about smoking in the prison.
• Reversed by Black v. Secretary of State for Justice, 2016

Boddington v. British Transport Police, 2011

Divisional Court ruling on legality of British Railway Board bylaw banning smoking in railway carriages, concerning appeal by a smoker convicted of smoking a cigarette in a railway carriage where smoking was banned under a British Railway Board bylaw that the bylaw and administrative decision bringing it into operation fell outside scope of original law conferring powers to British Railway Board.

• Ruling made on April 2, 2011, UK wide.
• Ruled on appeal by a smoker convicted of smoking a cigarette in a railway carriage where smoking was banned under a British Railway Board bylaw.
• Smoker challenged legality of bylaw and administrative decision bringing it into operation, arguing they fell outside scope of original law conferring powers to British Railway Board.
• Dismissed smoker’s appeal but ruled he could appeal to House of Lords; House of Lords upheld the bylaw and the administrative decision.

R (N), et al. v. Secretary of State for Health, et al, 2009

Ruling on Government regulation banning smoking in mental health facilities, concerning claims by smokers from a mental health facility that a ban on smoking contravened right to privacy in home and right to protection against discrimination of mentally ill persons.

• Delivered 24 July 2009, UK wide.
• Rejected appeal, ruling the smokers not protected by European Convention of Human Rights.

The Queen on the application of G, et al. v. Nottinghamshire Healthcare NHS Trust, et al., 2008

Ruling on Government regulation banning smoking in mental health facilities, concerning claims by smokers from a mental health facility that a ban on smoking contravened their right to privacy in the home and to protection against discrimination of mentally ill persons.

• Delivered 20 May 2008, UK wide.
• Ruled on claims by smokers from a mental health facility that ban contravened right to privacy in home and right to protection against discrimination of mentally ill persons.
• Dismissed appeal, rejecting notion of an absolute right to smoke wherever one is living.

BAT v. UK Department of Health (Appeal), 2016

Court of Appeal ruling on tobacco industry appeal led by British American Tobacco (BAT), Japan Tobacco International, and Imperial Tobacco against a May 2016 High Court ruling which upheld the legality of the UK’s Standardised Packaging of Tobacco Products Regulations 2015.

• Delivered 30 November 2016, UK-wide.
• Ruling rejected alleged unlawful interference in trademark rights and proportionality of SPTPR.
• Ruled that SPTPR was a control on the use of tobacco trademarks not a deprivation of those marks, and that they were a proportionate response to public health objectives.

BAT v. UK Department of Health, 2016

High Court ruling on grounds for challenge against the UK’s standardised packaging regulations.

• Delivered 19 May 2016, UK wide.
• Ruled tobacco firms were not due compensation nor that standardised packaging laws were a breach of tobacco firms’ fundamental rights or freedoms including to conduct a business.
• Ruled that protection of public health overrides trademark or property rights of tobacco firms.
• Judge criticised evidence provided by tobacco industry and criticised tobacco firms for failing to disclose internal documents about research on impact of plain packaging on business.

The Queen on the Application of Sinclair Collins Ltd. V Secretary of State for Health et al., 2011

Court of Appeal ruling on vending machine operators’ challenge to ban on cigarette vending machines, concerning operators’ claim of a lack of evidence of causal link between ban and less smoking.

• Delivered 17 June 2011, UK wide.
• Upheld the law, rejecting claim of a lack of evidence, noting provision in WHO FCTC Article 13 Guidelines that vending machines ‘’constitute by their very presence a means of advertising’’.

London Borough of Merton v. Sinclair Collis Limited, 2010

Ruling on liability of tobacco company for selling cigarettes to children, via interpretation of term “persons” in law banning the sale of tobacco to children by “persons”.

• Ruling made on November 5, 2010, UK wide.
• Ruled that the law’s use of the word “person” can include a company and thus that tobacco companies can be liable under this provision of the law.

Imperial Tobacco Ltd., Re Judicial Review, 2010

Ruling on a challenge by Imperial Tobacco to a law banning display of tobacco products at point of sale and use of vending machines to sell tobacco products.

• Ruling made 30 September 2010, UK wide.
• Dismissed challenge; ruled the law was valid given state’s interest to protect public health.
• Ruled that the law did not interfere with trade as they did not prevent sales being made or affect terms of sale between tobacco seller and consumer.

British American Tobacco UK Ltd., et al. v. Secretary of State for Health, 2004

Ruling on claims by five tobacco manufacturers and one vending machine supplier to legality of the Tobacco Advertising and Promotion Regulations 2004, concerning the claim that TAPR disproportionately restricted advertising at the point of sale.

• Delivered 5 November 2004, UK wide.
• Rejected application for judicial review, ruling Health Minister acted in scope of his authority.

Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v. Land Berlin, 2019

Ruling on challenge by Berlin-based tobacco company to EU Tobacco Products Directive (2014/40/EU) ban on characterizing flavours in cigarettes and roll-your-own tobacco and on allusion to flavours on packaging, on basis it was not applicable to its products and violated principles of equal treatment, certainty, and proportionality as different timescales for large and small companies to implement ban.

• Delivered 30 January 2019, EU wide.
• Ruled that ban was justified as restricting free movement of goods justified by health benefits.
• Ruled that difference of treatment in time to implement ban justified based on need to give consumers adequate time to switch to other products.
• Upheld ban on any indication of flavour on product packaging and labelling.

Republic of Poland v. European Parliament & Council of the European Union, 2016

Ruling on challenge by Poland to EU Tobacco Products Directive (TPD) banning sale of menthol and other flavoured cigarettes within EU member states on the basis that the regulations were too restrictive or should have been left to individual member states to regulate.

• Delivered 4 May 2016, EU wide.
• Dismissed Poland’s claim and ruled it was appropriate for EU to adopt the directive and that alternative measures would not have been as suitable for achieving the objective pursued.
• Rejected argument that measure should have been left to individual Member States.

R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health, 2016

Ruling on challenge to the validity of the EU’s Tobacco Products Directive (2014) brought by Philip Morris and British American Tobacco to the UK’s implementation of the TPD, on the basis that the TPD was incompatible with EU treaties, not proportionate or supported by evidence, not sufficiently harmonising, and contravened principle of subsidiarity. Also ruled on special rules for e-cigarettes.

• Delivered 4 May 2016, EU wide.
• Dismissed challenge and upheld all aspects of TPD.
• Ruled that TPD was proportionate as a public health measure to reduce tobacco dependence.
• Ruled that TPD was sufficiently harmonising as there were already significant divergences between regulatory systems of the Member States and a ban on tobacco products with a characterising flavour would guard against any further divergences.
• Ruled that TPD facilitated smooth running of internal market whilst protecting public health.
• On standardised packaging, ruled that regulations did not go further than necessary for public health and still gave member states scope to introduce their own requirements for packaging.

Pillbox 38 (UK) Ltd. v. Secretary of State for Health, 2016

Ruling on a challenge to the validity of e-cigarette regulations in EU’s Tobacco Products Directive 2014 brought by Pillbox 38 (UK) Ltd. (trading under the name "Totally Wicked").

• Dismissed challenge and ruled all e-cigarette requirements of TPD were valid including health warnings, a ban on most e-cigarette advertising, limit on nicotine levels and amounts of e-liquid container sizes, the requirement to notify the government before introducing a new product, and requirement to include an info leaflet with product.
• Ruled that the significant divergences between regulations in different EU member states justified the EU regulating the market, so e-cig regulations were not disharmonising.
• Ruled that regulations on e-cigarettes supported free movement of goods, rules on conformity, and principle of subsidiarity.
• Ruled that it was appropriate to regulate e-cigarettes differently from tobacco products because e-cigarettes display different characteristics from tobacco cigarettes.

Recommendation of the European Ombudsman in the inquiry into complaint 852/2014/LP against the European Commission regarding its compliance with the Tobacco Control Convention, 2015

Ruling on complaint by an NGO that the European Commission (EC) was violating the WHO FCTC requiring parties to protect against commercial and vested interests of tobacco companies.

• European ombudsman agreed that the EC’s policies did not provide sufficient transparency about meetings with tobacco industry representatives and recommended that EC put in place a policy requiring the online publication of all meetings with tobacco industry representatives and the publication of all minutes from those meetings.
  

Federal Republic of Germany v. European Parliament, 2006

Ruling on an annulment sought by Germany to EU Tobacco Advertising Directive 2003 on basis that the TAD went beyond boundaries of the European Commission’s (EC) jurisdiction and does not address the distortion of competition as the situations it refers to have no discernible cross-border effect.

• Rejected Germany’s case and ruled that TAD did have a discernible cross-border effect as print publications organised in Member States are circulated between Member States; also clarified that the cross-border element is present in context of online and offline media.
• Rejected argument on distortions of competition, ruling that different national regimes on tobacco advertising create distortions of competition within the tobacco industry.
• Ruled that TAD restrictions did not compromise journalistic expression.

Arnold Andre v. Landrat des Kreises Herford, 2004

Ruling on challenge by a snus importer to validity of European Commission Directive 2001/37 banning the marketing of most tobacco products designed for oral use.

• Rejected the challenge and ruled that the Directive had the properly derived rule-making authority from Article 95 EC to ensure the internal consistency of the community market.
• Held that the adoption of the Directive was supported by sufficient scientific evidence and satisfied principles of proportionality and non-discrimination.

The Queen on the Application of Swedish Match AB, et al. v. Secretary of State for Health, 2004

Ruling on challenge by a snus manufacturer to validity of a provision in European Commission Directive 2001/37 directing Member States to ban the marketing of most products designed for oral use.

• Rejected the challenge and ruled that the Directive had the properly derived rule-making authority from Article 95 EC to ensure the internal consistency of the community market.
• Held that the adoption of the Directive was supported by sufficient scientific evidence and satisfied principles of proportionality and non-discrimination.
• Ruled that sufficient reason existed to treat oral tobacco differently from chewed tobacco.
• Ruled that Directive did not contravene right to property or did not unjustifiably interfere with freedom to pursue economic activity.

The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., et al., 2002

Ruling on validity and reach of European Commission Directive 2001/37 following questions referred by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court).

• Ruled that the Directive was valid and had the properly derived rule-making authority from Article 95 EC.
• Ruled that the Directive did not violate proportionality principle, property rights, the obligation to give reasons, or the subsidiarity principle.

Federal Republic of Germany v. European Parliament, 2000

Ruling on an annulment sought by Germany to the EU 98 Directive banning tobacco advertising and sponsorship.

• Ruled in favour of Germany, concluding that the Directive did not have the requisite intention to improve trade amongst the Member States as required by the EC Treaty as it did not eliminate distortion of competition and obstacles to the free movement of goods.