Netherlands

On June 22, 2020, the Dutch Secretary for Health, Welfare & Sport announced a ban on e-cigarette flavors. The Ministerial Regulation that followed excluded 16 flavor additives from this ban. In essence, all flavors except tobacco were banned. The ban’s enforcement was to begin January 1, 2024.

British American Tobacco International Holdings and Nicoventures Holdings (collectively “BAT”) alleged that the ban disproportionately interfered with the free movement of goods (citing the TPD). BAT further alleged that the flavor ban did not contribute to public health because it would prevent smokers from quitting and encourage young people who used flavored e-cigarettes to switch to conventional cigarettes.

The Netherlands disagreed with BAT, noting that the flavor ban supported public health. The Netherlands provided evidence that established the harmful effects of e-cigarettes and the role of e-cigarettes as a gateway to other tobacco products.

The Hague District Court agreed with the Netherlands and noted that the Tobacco Products Directive allows Member States to regulate e-cigarette flavors. The Court held that the flavors ban was not contrary to the free movement of goods and was not contrary to the TPD objective of protecting public health.

On this basis, the court dismissed BAT’s claims and ordered BAT to pay the costs for the proceedings.