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Republic of Poland v. European Parliament & Council of the European Union [European Union] [May 04, 2016]
Poland challenged the provisions of a European Union (EU) Tobacco Products Directive (TPD) that prohibit the sale of menthol and other flavored cigarettes by member states as of May 2020. The Court of Justice of the European Union (CJEU) dismissed the claim, finding that it was appropriate for the EU to adopt a directive in order to prevent barriers to the trade of such products if different member states have different laws. The court noted that the TPD is also designed to protect public health. The Court rejected Poland’s argument that the EU should have adopted less restrictive measures, such as an age-related restriction on the use of menthol products, or that the regulation of such products should have been left to individual member states to regulate, as such alternative measures did not appear to be equally suitable for achieving the objective pursued. The Court also rejected the argument that the measure breached the principle of subsidiarity (which requires that the EU should not regulate on matters that are within the competence of individual Member States).
R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health [European Union] [May 04, 2016]
A challenge to the validity of the European Union’s (EU) Tobacco Products Directive (TPD) 2014 brought by Philip Morris and British American Tobacco was dismissed on all grounds by the Court of Justice of the European Union (CJEU). The amended TPD was adopted in April 2014 and provides a wide range of requirements relating to emissions, reporting, 65% pictorial health warnings, packaging and labelling, a ban on characterising flavors and other additives, and regulates e-cigarettes. Article 24(4) permits member states to adopt further requirements to standardise packaging. The TPD applies to all 28 countries within the EU.
In this case, Philip Morris and BAT brought a judicial review against the United Kingdom based on the government’s intention to implement the TPD requirements in UK legislation. The tobacco companies claimed that parts of the TPD and the Directive as a whole, were invalid because it was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonising in nature; and contravened the principle of subsidiarity. The UK court hearing the case referred questions on the interpretation of EU law to the CJEU. The CJEU upheld all aspects of the TPD, including provisions to require pictorial warning labels, to prohibit menthol cigarettes, and to allow countries to prohibit cross-border sales and to adopt additional packaging restrictions, such as plain packaging. The court noted that the EU may act to prevent obstacles to the trade of tobacco products while also ensuring a high level of public health protection. The Court found that the packaging and labelling requirements were proportionate and did not go beyond what were necessary and appropriate.
In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation.
EU Member States are obliged, under the TPD, to implement most provisions of the TPD into domestic law by May 20, 2016 (although a number of states have been late in their implementation).
Pillbox 38 (UK) Ltd. v. Secretary of State for Health [European Union] [May 04, 2016]
A challenge to the validity of the e-cigarette regulations in the European Union’s (EU) Tobacco Products Directive (TPD) 2014 was dismissed on all grounds by the Court of Justice of the European Union (CJEU). Pillbox 38 (UK) Ltd. (trading under the name "Totally Wicked"), an e-cigarette manufacturer, brought a judicial review against the UK government challenging its intention to implement the TPD into domestic law on the basis that it claimed the TPD was not valid. The TPD Article 20 sets out requirements for e-cigarettes for all EU Member States. The UK court hearing the case asked the CJEU for a reasoned opinion on the validity of Article 20.
The CJEU found the TPD to be valid and upheld all of the e-cigarette requirements, including health warnings; a ban on most e-cigarette advertising; a limit on nicotine levels and amounts and e-liquid container sizes; a requirement to notify the government before introducing a new product; and the requirement to include a leaflet with the product containing information such as a list of ingredients. Firstly, because the purpose of the Directive is to harmonise regulations across the EU, the court found that there were significant divergences between the regulations in different Member States which justified the EU regulating the market. The court found that it was permissible to regulate e-cigarettes differently than other tobacco products in part because e-cigarettes are novel products and there is insufficient information on their health effects. The identified and potential risks linked to the use of e-cigarettes means the EU may act according to the precautionary principle.
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 [European Union] [October 01, 2015]
A non-governmental organization (NGO) complained that the European Commission was violating the Framework Convention on Tobacco Control, which requires parties to protect against commercial and other vested interests of tobacco companies. The European Ombudsman agreed with the NGO that the European Commission’s policies did not provide sufficient transparency about its meetings with tobacco industry representatives. The Ombudsman recommended that the Commission put into place a policy—similar to the policy currently in place by the Directorate General for Health and Food Safety—that requires online publication of all meetings with tobacco industry representatives and publication of the minutes from those meetings.
Federal Republic of Germany v. European Parliament [European Union] [December 12, 2006]
The Federal Republic of Germany sought annulment of a European Community directive that regulated advertising and sponsorship of tobacco products. The Court held that the Community legislature acted properly and within its authority when promulgating the Directive to remove obstacles to cross-border movement of goods by rectifying inconsistencies amongst the laws of Member-States while ensuring a high level of health protection. The Court further held that any indirect infringement by the Directive upon the freedom of expression was proportional to and justified by the purposes behind the Directive's adoption, noting that the restrictions did not compromise journalistic expression but applied only to commercial advertisements within journalistic media.
Arnold Andre v. Landrat des Kreises Herford [European Union] [December 14, 2004]
A snus importer challenged the validity of a European Directive that directs member states to prohibit the marketing of any tobacco products designed for oral use, except those tobacco products designed to be smoked or chewed. The Court held that the Directive properly derived its authority from Article 95 EC, which provided the community with rule-making authority to ensure the internal consistency of the community market. The Court further held that adoption of the Directive was supported by sufficient scientific evidence and it satisfied the principles of proportionality and of non-discrimination. The Court approved of the adoption of the Directive and sent the case back to the national courts for further proceedings.
The Queen on the Application of Swedish Match AB, et al. v. Secretary of State for Health [European Union] [December 14, 2004]
A snus manufacturer challenged on several bases the validity of a provision in Directive 2001/37/EC that directs member states to prohibit the marketing of any tobacco products designed for oral use, except those tobacco products designed to be smoked or chewed. The Court held that the Directive properly derived its authority from Article 95 EC, which provided the community with rule-making authority to ensure the internal consistency of the community market. The Court further held, among other things, that: (1) adoption of the Directive was supported by sufficient scientific evidence; (2) the Directive satisfied the principle of proportionality; (3) sufficient reasons existed to treat oral tobacco differently from chewed tobacco at the time of the Directive's adoption; (4) a claim to a right to property could not be based upon denial of a market share; and (5) the Directive's interference with the freedom to pursue an economic activity was justified by the concerns guiding adoption of the Directive.
The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., et al. [European Union] [December 10, 2002]
The High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court) referred questions concerning the validity and reach of Directive 2001/37/EC of the European Parliament to the Court of Justice of the European Union. Directive 2001/37/EC standardized member-state regulations pertaining to the manufacture and labeling of tobacco products in an effort to promote the internal efficacy of the market and a high level of public health. The Court held, among other things, that the Directive was properly enacted within the authority vested in the European Parliament by Article 95 EC and that the Directive did not violate the proportionality principle, property rights, the obligation to give reasons, or the subsidiarity principle.
Federal Republic of Germany v. European Parliament [European Union] [October 05, 2000]
Germany sought to annul an EU directive that required Member States to ban tobacco advertising and sponsorship. The Court ruled in Germany's favor, concluding that the directive did not have the requisite intention to improve trade among the Member States as required under the EC Treaty. The directive did not improve trade, according to the Court, because it did not eliminate distortion of competition and obstacles to the free movement of goods and the freedom to provide services.