EU court ruling paves way for large, graphic tobacco health warnings

EU court ruling paves way for large, graphic tobacco health warnings

By Luke Vargas   
A selection of visual health warnings that may soon appear on tobacco packaging in the U.K.
A selection of visual health warnings that may soon appear on tobacco packaging in the U.K.

Philip Morris and British American Tobacco contend that required health warnings are unnecessarily large and have an adverse affect on their business competitiveness.

UNITED NATIONS (Talk Media News) – European Union directives mandating large health warnings on tobacco packaging are consistent with overarching E.U. free trade and public health objectives, the European Court of Justice (ECJ) ruled Wednesday.

That ruling is widely seen as a setback to tobacco companies, which challenged the legality of the 2014 Tobacco Products Directive, arguing that mandated health warnings and other regulations were unwarranted and damaged their business competitiveness.

A key section of that ruling states:

“It does not appear that, in adopting Article 10(1)(a) and (c) of Directive 2014/40, the EU legislature manifestly went beyond the limits of what is appropriate and necessary to attain the objective of improving the conditions for the functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people.”

Articles 10(1)(a) and (c) stipulated that tobacco packaging must include both a text warning and a color photograph that “cover 65 % of both the external front and back surface of the unit packet and any outside packaging.”

An annex of the 2014 Tobacco Products Directive lists the written health warnings to be used on E.U. tobacco packaging.

Tobacco companies were quick to challenge that and other rules, including a ban on use the “characterizing flavours,” such as menthol, in tobacco products and on the advertising of e-cigarettes.

“Despite the decision by the Court of Justice of the European Union, we stand by our belief that the Tobacco Products Directive is a clear example of the European Union (EU) overstepping the limits of its authority,” British American Tobacco said in a statement. “The reality is that many elements of the Directive are disproportionate, distort competition and fail to respect the autonomy of the Member States.”

The ECJ was asked to weigh in on the directive after Philip Morris (makers of Marlboro, Parliament and Virginia Slim cigarettes) and British American Tobacco (makers of Dunhill, Lucky Strike and Pall Mall cigarettes) jointly challenged the legality of tobacco packaging laws in the British court system.

The High Court of Justice of England and Wales subsequently asked the ECJ to offer a nuanced interpretation of relevant E.U. law before making a final ruling.

“If a national court thinks that the interpretation of the provision of E.U. law matters for the concrete case to be decided, this national court can ask questions, real questions, on the interpretation of E.U. law to the ECJ,” said Dr. Hans Schulte-Nölke, Director of the European Legal Studies Institute at Germany’s University of Osnabrück.

In the end, Wednesday’s judgement likely gives a green light to the E.U.-wide rollout of more rigorous tobacco packaging. But even though the ECJ deflected many of the challenges to the Tobacco Products Directive, Schulte-Nölke said the judgement shows that the broader interests of corporations, even tobacco companies, remain protected by E.U. free trade laws.

“Free trade should not, must not endanger health protection,” he said, summarizing the ECJ’s decision. “However, health protection must not, at least not unnecessarily, hinder free trade. It’s not one higher than the other. It’s balancing two very important values.”

Anti-tobacco campaigners argued that Wednesday’s ruling endorsed so-called “plain packaging” of tobacco, in which all company branding is replaced with generic labeling and health warnings, but British American Tobacco disagreed, though their efforts to challenge packaging laws now shift to the global level.

“What is clear from the Directive and the judgment is that measures that go beyond the requirements of the Directive, such as plain packaging, must still comply with the wider principles of EU and international law,” the company said.

Cuba, the Dominican Republic, Honduras and Indonesia have each lodged disputes with the World Trade Organization challenging a plain packaging law passed in Australia. The countries contend that the law creates a technical barrier to trade and infringes on the intellectual property of tobacco companies.

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