European Court of Justice Upholds Strict Rules on Tobacco
PARIS — Europe’s highest court upheld tough new tobacco rules on Wednesday, finding that the European Union had the legal right to place restrictions on the sale of electronic cigarettes and to adopt rules requiring cigarettes to be sold with graphic images of diseased human organs.
The new rules take effect this month, although the union’s 28 member countries have some leeway in how to adopt the new measures, which also include a ban on menthol cigarettes.
Although the court ruling cannot be appealed, the tobacco industry, which lobbied against the rules before the European Union voted them into law in 2014, indicated on Wednesday that it would continue to seek to overturn some of the specific elements, including rules meant to remove the marketing allure from cigarette packaging.
Resistance could prove difficult, though, because the court ruled in favor of the tobacco law on all counts.
The European Court of Justice, based in Luxembourg, had been asked by Poland, Romania and several English courts to determine whether the 2014 legislation, which updated rules for the sale of tobacco and e-cigarettes, was lawful.
“The new E.U. directive on tobacco products is valid,” the court found. “The extensive standardization of packaging, the future E.U.-wide prohibition on menthol cigarettes and the special rules for electronic cigarettes are lawful.”
The Court of Justice interprets European Union law to ensure it is applied evenly across the bloc, and it settles disputes brought by claimants who believe the bloc’s laws have violated their rights.
Poland, which has one of the world’s highest rates of menthol cigarette consumption, had argued that the rules were unfair to its smokers, and it was supported in its challenge by Romania. The tobacco industry, led by Philip Morris International and British American Tobacco, had challenged the plain-packaging rules in Britain, where the courts passed the matter to the Court of Justice.
The court found that the 2014 tobacco law was meant to “facilitate the smooth functioning of the internal market” in Europe, while providing a high standard of protection for human health. The court also noted that such regulation was necessary under Europe’s international treaty obligations as a party to the World Health Organization’s Framework Convention on Tobacco Control.
The court ruled that the European Union had not overstepped its bounds in limiting the nicotine content of electronic cigarettes to 20 percent of the liquid that is used in them and imposing bans on e-cigarette advertising similar to those affecting traditional tobacco products. The court noted that the new regulatory system for e-cigarettes is, in fact, less strict than that governing tobacco.
Perhaps as important, the court strongly endorsed member states’ right to standardize cigarette packages to reduce their marketing appeal.
Australia pioneered the plain-packaging rules, drawing attacks from the tobacco industry, including a so-called investor-state case under the country’s trade agreements with Hong Kong. That case was dismissed at the end of 2015, but the industry continues to fight tobacco regulation through the World Trade Organization and other bodies.
The packaging restrictions have been heavily resisted by tobacco companies, which argue that it is an attack on their intellectual property rights. Although plain packaging is not mandatory by European Union member states, the bloc’s new rules allow members to require that 65 percent of the front and back surface of each package carry health warnings and, in some cases, pictures of disease-ravaged human organs.
The Court of Justice found that the purpose of the packaging rules “is such as to protect consumers against the risks associated with tobacco use and does not go beyond what is necessary in order to achieve the objective pursued.”
But the tobacco industry says the last word has not been heard on the subject.
“Today’s judgment is specific to detailed aspects of E.U. law and reflects the substantial deference that the Court of Justice often shows to the E.U. institutions when reviewing E.U. legislation,” Marc Firestone, Philip Morris International’s senior vice president and general counsel, said in a statement.
“The court has not considered whether plain packaging is legal or is capable of reducing smoking rates,” Mr. Firestone said. “Those questions are currently under review by the English High Court and the World Trade Organization. We look forward to the outcome of those proceedings, as well as the timely implementation of the directive in each of the 28 member states.”