Does the Smokefree Generation Really Break EU Law? Industry vs Evidence

As the Tobacco and Vapes Bill nears its final parliamentary hurdle, tobacco companies and their allies are falling over themselves to warn that the generational smoking ban (ending tobacco sales to anyone born after 2008) is incompatible with EU law. This matters because the Bill applies in Northern Ireland, which is still subject to some EU regulations under the Windsor Framework. The Tobacco Manufacturers Association (TMA) and the Institute of Economic Affairs (IEA), both generously funded by the tobacco industry, are leading the charge. The TMA has apparently shared a legal opinion supporting its position with a Daily Mail journalist, though the details remain unclear.

Frankly, it would have been headline news if they had said anything else. Tobacco companies crying “illegal!” at anything that dents cigarette sales is one of the oldest tricks in a very dog-eared playbook. In the past 20 years, the tobacco industry has consistently challenged all legislative measures adopted in the UK to protect the public from tobacco-related harm.

However, legal experts commissioned by ASH have come to quite different conclusions about how the proposed generational ban on sale of tobacco ban would fare if challenged in court. 

In simple terms, and despite industry claims to the contrary, it is likely to be compatible with EU rules on tobacco products and on the free movement of goods.

Individual countries have the power to make decisions on age limits and how tobacco is sold under the EU Tobacco Products Directive (TPD), the main EU tobacco law.

In fact, EU law encourages Member States to set and enforce age limits on tobacco sales to protect children and young people from harm. Because age-of-sale rules are not “harmonised” at EU level, countries remain free to determine the age limit they see as appropriate – as the UK proposal does – provided that, when they do so, they comply with EU trade rules.

This expert Legal Opinion concludes that a sales generational ban does not constitute a trade restriction within the meaning of the EU Treaties. However, it has also found that, even if a court did find otherwise, it would almost certainly find the measure justified on public health grounds. Protecting health, especially that of children and future generations, is one of the strongest recognised reasons for legitimately limiting trade.

The bottom line is – given that smoking causes at least 16 different types of cancer and is the leading cause of preventable death in the UK, taking over 70,000 lives every year – it is hard to imagine that the Bill would not be seen as proportionate and in line with both the TPD and EU free movement rules.

However, this is unlikely to deter the tobacco industry from attempting to block, delay and undermine the legislation. Let’s take a quick trip down memory lane…

Jurassic Park hits cinemas. Beware the velociraptors hunting your children. Meanwhile, a pack of three tobacco companies challenge the UK Government, claiming new pack health warnings are illegal under EU rules. The court sides with the Government.

Britney Spears releases Toxic. Five tobacco companies, purveyors of products proven to be, well, toxic, sue to stop the UK’s tobacco advertising ban. The court dismisses their case.

While the global financial crisis unfolds, as big banks put profits before people, Imperial Tobacco attempts to block Scotland’s point-of-sale display ban. They lose.

La La Land does not win Best Picture. And tobacco companies, perhaps living on a different planet, attempt to strike down standardised packaging laws. The judge is unimpressed:

“the essence of the case is about whether it is lawful for states to prevent the tobacco industry from continuing to make profits by using their trademarks and other rights to further what the World Health Organisation describes as a health crisis of epidemic proportions and which imposes an immense cleanup cost on the public purse.

“In my judgment the regulations are valid and lawful in all respects. There is no basis upon which I could or should strike down the regulations or prevent them coming into effect tomorrow.”

I could go on.

The pattern is painfully familiar: the tobacco industry and the groups it funds routinely, claim that public health measures are legally impossible, impermissible, or unimaginable… right up until courts rule – over and over again – that these measures are perfectly lawful.

This time, the main objection raised by the tobacco industry is based on EU rules on the free movement of goods. A handful of Member States have echoed similar concerns, through the EU Technical Regulations Information System (TRIS). TRIS is the process by which member states notify each other about technical rule changes to allow these to be reviewed. It’s worth noting that the countries objecting  tend to be the ones who routinely object to any tobacco control progress in the EU. For example, France’s nicotine pouch ban – which is proceeding regardless.

As the Government has clearly stated, the TRIS process will not stop the UK smokefree generation legislation. The UK will respond to the objections raised, then the process will move forward. Though as sure as night follows day, the industry will reach for the next legal grenade to lob. Vocal opposition from the tobacco industry is generally a sign that you’re onto a policy that will reduce tobacco sales, saving lives. 

So, a final word of reassurance. When tobacco companies show up clutching their pearls over “the law”, do not be alarmed. Do not adjust your television sets. This is business as usual - and history tells us exactly how it ends.