EU tobacco industry wounded by TPD court advice

An adviser to the EU Court of Justice on Wednesday said the EU’s Tobacco Products Directive was valid, rebuffing a challenge from Philip Morris International, according to a Reuters report.

‘[The advocate general, Juliane Kokott] considers the EU tobacco directive of 2014 to be valid, in particular the extensive standardization of packaging, the future EU-wide prohibition on menthol cigarettes and special rules for e-cigarettes are lawful,’ the opinion said.

Although such opinions are not binding on the court, in a majority of cases they are reflected in the final ruling.

The directive had attracted strong opposition from Poland, Romania and tobacco companies.

In a report for the US-based Courthouse News, William Dotinga said that in response to a challenge brought by PMI and other tobacco companies regarding packaging standards, Kokott had found that the requirements of shape, size and minimum content were not disproportionate since they served the greater purposes of public health.

Kokott found also that new requirements for health warnings would serve the EU’s goal of deterring people, particularly children and young adults, from smoking.

And she said the directive rightly prohibited companies from making statements on their packaging that cast cigarettes in a deceptively positive light, even when the statements were true.

Poland and Romania had complained that, in imposing bans on flavors, EU lawmakers had stripped member states of their rights to do their own regulating. But Kokott found that national rules on flavored cigarettes did not do enough to address the EU-wide problem of smoking.

She found that the rules imposed on electronic cigarettes were relatively minor compared to those placed on conventional cigarettes and by international standards, and therefore not disproportionate. And she found that the EU legislature’s view that differences in member states’ regulation of electronic cigarettes required a continent-wide approach was valid – particularly given the product’s rise in popularity and potential appeal to young people.

Meanwhile, in a note on its website, PMI said that the advisory opinion offered an unusually broad view of authority under the EU treaties.

‘An undeniable principle in those treaties is that the EU has powers to improve the internal market – not to disrupt it, which is what the EU’s recent Tobacco Products Directive would do,’ PMI said. ‘Rather than respecting such basic principles as genuine harmonization and free movement, the Directive inexplicably encourages a patchwork of regulations and disregards important limits on the scope of EU legislation.

‘To be sure, the EU institutions and the 28 Members States can and should strictly regulate tobacco products, but in doing so they must respect the boundaries that the Treaties and national constitutions establish. We therefore remain hopeful that the Court of Justice’s judgment, which is expected by Spring 2016, will enforce the balance that the Treaties require.’

The Reuters story is at: http://www.reuters.com/article/us-eu-court-pmi-idUSKBN0U60R920151223

The Courthouse News story is at: http://www.courthousenews.com/2015/12/23/menthol-ban-among-sweeping-cigarette-reforms-okd-in-europe.htm.