CJEU says EU’s tobacco directive is valid
Tobacco companies Philip Morris International (PMI) and British American Tobacco (BAT) have lost a challenge against an EU directive on plain packaging of cigarettes.
In a judgment handed down today, May 4, the Court of Justice of the European Union (CJEU) said the EU’s Tobacco Products Directive is valid, following a challenge by both companies.
Under the directive, tobacco companies must put graphic images on display that cover more than 60% of the packaging, reducing companies’ ability to promote trademarks and branding.
When they challenged the directive in 2014, the companies said it appeared to also ban truthful and non-misleading claims from being displayed on the packs of products.
According to the CJEU, the provisions that the health warning should cover 65% of the external front and back surface of each packet are proportionate and compliant with the interest of public health protection, which the directive intends to pursue.
It added that the provision on “true and non-misleading statements about tobacco products” should be interpreted as meaning that it prohibits any element or feature that promotes a tobacco product or encourages its consumption, even if they are factually accurate.
Oliver Watson, managing associate at law firm Lewis Silkin, said: “In practical terms, and subject to further challenge, the directive means that each individual EU member state will need to legislate to prohibit tobacco product labelling which has any element or feature that promotes consumption or makes certain health claims.”
He added: “The regulations are not inconsistent with the approach already taken in Australia—which appears to have had limited success in changing the behaviour of tobacco product users. It will be interesting to see how PMI, BAT and the owners of other well-known tobacco brands choose to react and whether, ultimately, future changes to tobacco product packaging have any effect on their consumers’ behaviour.”
Marc Firestone, general counsel of PMI, said: “Today’s judgment is specific to detailed aspects of EU law, and reflects the substantial deference that the CJEU often shows to the EU institutions when reviewing EU legislation.”
He added: “The court has not considered whether plain packaging is legal or is capable of reducing smoking rates.”
A BAT spokesperson added: “Despite today’s decision we stand by our belief that the directive is a clear example of the EU overstepping the limits of its authority.
“It’s also important to remember that this decision does not endorse claims by some that the directive authorises member states to adopt plain packaging.”
