TOBACCO CONTROL LAWS

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

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. 

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The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., et al., Case C-491/01, Court of Justice of the European Union (2002).

  • European Union
  • Dec 10, 2002
  • Court of Justice of the European Union

Parties

Plaintiff The Queen

Defendant

  • British American Tobacco (Investments) Ltd.
  • Imperial Tobacco Ltd.
  • Secretary of State for Health

Third Party

  • Japan Tobacco, Inc. (Intervenor)
  • JT International SA (Intervenor)

Legislation Cited

Directive 2001/37/EC, Tobacco Products Directive

International/Regional Instruments Cited

Treaty on the Functioning of the European Union (TFEU)
Charter of Fundamental Rights of the European Union
Council Directive 89/622/EEC
Council Directive 90/239/EEC
Council Directive 92/41/EEC
Directive 2001/37/EC
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
WHO Framework Convention on Tobacco Control (WHO FCTC)
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Trade Panel/Investment Tribunal/Arbitration
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.

Tobacco Control Topics

Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Illicit Trade
Measures relating to illicit trade, including smuggling, illicit manufacturing and counterfeiting. (See FCTC Art. 15)

Substantive Issues

Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Intellectual Property Violation
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
Trade Violation
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Encourage Illicit Trade
Regulatory measures may lead to an increase in illegal sales, such as counterfeit products. The industry may also argue that such illicit trade will reduce tobacco tax revenue.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.

Type of Tobacco Product

None

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