The EU's Tobacco Products Directive has been declared lawful.
Responding to challenges to the labelling and packaging of tobacco, the ban on menthol cigarettes and restrictions on e-cigarettes, the Advocate General at the Court of Justice of the European Union has announced she considers the new directive to be valid.
In her Opinions issued today, Advocate General Juliane Kokott concludes that the new EU tobacco directive of 20141 was lawfully adopted. This applies in particular to the standardisation of the labelling and packaging of tobacco products (such as size, minimum content, warnings andvpermitted information), the EU-wide prohibition on sales of menthol cigarettes applicable from 20 May 2020 and the special rules for e-cigarettes.
None of the arguments invoked by Poland — supported by Romania — against the prohibition on menthol cigarettes is well founded, with the result that Poland’s action for annulment must be dismissed. The examination of the questions posed by the English High Court, before which several undertakings challenged the implementation of the directive into law in the UK, also reveals no factors such as to affect the validity of the directive.
Concerning the special rules for e-cigarettes, Advocate General Kokott states that those rules differ appreciably in several respects from the rules for conventional tobacco products. For example, the special rules for e-cigarettes provide for, inter alia, a duty to submit a notification with a six-month standstill period, specific warnings, a maximum nicotine content of 20 mg/ml, a leaflet requirement, a separate prohibition on advertising and sponsorship and annual reporting obligations.
Those special rules are, however, relatively moderate, both in comparison with the rules for conventional tobacco products and by international standards, and are ultimately not disproportionate. Advocate General Kokott emphasises in that regard that e-cigarettes are a novel and — for large parts of the population at least — still relatively little known product for which there is a rapidly developing market.
In addition, it is not manifestly wrong or unreasonable to accept, in adopting internal market harmonisation measures, that e-cigarettes possibly cause risks to human health and that that product could — above all in the case of adolescents and young adults — develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption.
Also in the case of e-cigarettes, the EU legislature was entitled to take the view, having regard in particular to the fundamental differences between the Member States’ rules and the cross-border dimension of the problem, that rules at Union level are required.
You can download the full press release here.
Deborah Arnott, CEO of ASH, has reacted as follows:
"The Advocate General's Opinion is very clear: the Directive is lawful and the UK is allowed to go further in standardising the pack. We await the final judgement of the European Court of Justice but it is unlikely to differ from the Opinion."
Interesting that Deborah 'friend of the vaper' Arnott hasn't commented on the dismissal of the legal challenge brought by e-cigarette manufacturer Totally Wicked.
Perhaps she's not bovvered.