Bad day for advocates of choice
Thursday, April 12, 2018 at 18:46
Simon Clark

Well, that was sadly predictable.

Following a challenge by Swedish Match, the Advocate General of the European Court of Justice today announced that, in his opinion, the EU-wide ban on snus is ‘valid’.

Can't say I was surprised.

The ECJ has yet to make a final decision on the matter but it’s rare, apparently, that advice from the Advocate General is ignored so don't expect any change to the status quo.

Truth is, we’re living in a risk averse age and on issues like this judges and politicians rarely stray from an anti-tobacco consensus.

Prohibition (especially when the product is banned already) is much easier to support than a more radical (and liberal) approach to consumer choice.

The Swedish Match challenge reminds me of an earlier case concerning tobacco vending machines. This 2011 Forest press release sums it up:

The UK Court of Appeal has dismissed an appeal over legislation to ban sales of tobacco from vending machines in the UK.

The ruling upholds a decision by the High Court in December 2010 to reject a legal challenge by Imperial Tobacco's cigarette vending machine subsidiary Sinclair Collis.

Two of the three Court of Appeal judges agreed that the High Court's decision should be upheld. The view of the third judge was that a ban on tobacco vending sales was disproportionate.

The Master of the Rolls, Lord Neuberger, admitted the DoH's arguments were "not very convincing" [my emphasis] but said tobacco's health risks meant courts should not interfere with Government restrictions.

He added that given the health risks posed by tobacco, "virtually any measure [my emphasis] which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere".

Although statistics used by the DoH to justify the ban were "little more than guesses" [my emphasis], Lord Neuberger said they did "not appear fanciful" and the ban was "lawful" and "proportionate".

Imperial won the original challenge but the Labour government appealed and the Appeal Court judges voted 2:1 in favour of upholding the ban.

According to the presiding judge, if the ban saved a single life [my emphasis] he had to support it.

For me that comment is as ridiculous today as it was then but the thinking behind it is instructive because it explains many of the paternalistic laws that have been passed since the introduction of the seat belt law in (I think) 1982.

The ban on snus makes even less sense when the product is evidently 'safer' than other products that are already on the market, but when did common sense dictate legislation?

Of course I applaud Swedish Match for challenging the ban but I would like to have seen the court case accompanied by a high profile, consumer-driven PR campaign to raise awareness of the product and the issues.

As I suggested a couple of weeks ago, it's important to win over public opinion and to win that battle you have to engage with more than a handful of like-minded people. You've also got to have a loud voice in the media and if you can't get it through editorial you buy it through advertising and advertorial.

Yes, it costs money – a lot of money – but legal challenges don't come cheap either. It's not one or the other, the battle has to be fought on both fronts.

Apart from a handful of articles by Chris Snowdon and Clive Bates, however, consumers and advocates of snus have been largely invisible in the UK.

I'm not having a go at anyone, by the way. I know how hard it is to organise any sort of campaign, let alone motivate people to support a niche product like snus.

Nevertheless the PR battle was there to be fought and I don't understand why so little effort has been made to challenge the ban in the court of public opinion.

I don't underestimate the difficulties. Snus may be a genuine harm reduction product but it's not part of British culture in the way it is in Sweden or Norway.

In fact, I'd wager that most people in the UK have never heard of snus and the majority of those that have (including smokers) are dubious about its appeal.

Anecdotally, in my experience, most people find the idea of a moist tobacco pouch in the mouth quite unpleasant. I don't know why, given the popularity of chewing gum (for example), but there it is.

Meanwhile opponents of snus are quick to raise the grim spectre of oral cancer. The risk may be small, as advocates claim and evidence seems to suggest, but images of that horrible disease are pretty gruesome and, once you've seen them, hard to forget.

What I'm saying is, if the advocates and manufacturers of snus want the ban to be lifted it will take more than a legal challenge.

Without an educational, well-funded, consumer-driven PR campaign that gives equal weight to choice and pleasure, harm reduction and risk, the sale (if not the consumption) of snus will almost certainly remain illegal in Britain.

Even then the odds on legalisation are small but, post Brexit, why not give it a go?

Article originally appeared on Simon Clark (
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