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Tobacco giants to appeal High Court dismissal of plain packaging challenge

British American Tobacco (BAT) will seek leave to appeal a decision by the High Court rejecting its attempt to overturn UK legislation introducing plain packaging for tobacco products.

The ruling, handed down on Thursday (19 May), dismissed the judicial review brought by BAT and other global tobacco giants.

Plain packaging laws, which BAT said breached its intellectual property rights, will come into force on 20 May.

BAT revealed following the ruling it will seek leave to appeal the decision through its lawyers, Herbert Smith Freehills (HSF). JT International and Imperial Tobacco confirmed they will join BAT in the appeal, but Philip Morris – one of the lead claimants on the initial action – said it would not.

The judicial review brought by the four tobacco companies was dismissed on Thursday (19 May) in a 400-page ruling by Mr Justice Green.

Green J upheld the lawfulness of the new regulations and rejected the grounds of challenge in their entirety. He said the regulations were “proportionate”, both when they were first drafted by Parliament and in light of recent evidence following similar legislation in Australia.

The tobacco giants had sought to challenge the law on the grounds it was unlawful under international law, EU law and domestic common law.

Earlier this month the EU’s highest court similarly upheld a law that will standardise packaging and ban the advertising of e-cigarettes. Philip Morris and BAT challenged the proposed legislation and said the EU was overstepping its authority to direct laws in member states.

Ashurst, Freshfields Bruckhaus Deringer, HSF and Skadden Arps Slate Meagher & Flom were instructed to bring the legal challenges in the UK. Leigh Day also appeared during the court proceedings last December for the intervener, Action on Smoking and Health.

In a statement, BAT said: “This decision by the English High Court is by no means the final word on the lawfulness of plain packaging. We believe that the judgment contains a number of fundamental errors of law and we are applying for leave to appeal the decision.

“The judgment, if left to stand, should also raise real concerns for many other legitimate businesses as it creates a worrying precedent whereby public policy concerns can ride roughshod over long established fundamental commercial rights.”

The legal line-up:$$$

For the first claimants, British American Tobacco

39 Essex’s Nigel Pleming QC, One Essex Court’s Geoffrey Hobbs QC and Philip Roberts and Brick Court Chambers’ David Scannell, instructed by Herbert Smith Freehills partner Andrew Lidbetter

For the second claimants, Philip Morris

Brick Court’s Marie Demetriou QC and Daniel Piccinin, instructed by Skadden partner Karyl Nairn QC

For the third claimants, JT International

Brick Court’s David Anderson QC and Jennifer MacLeod, and One Essex Court’s Emma Himsworth QC, instructed by Freshfields partner Tom Snelling

For the fourth claimants, Imperial Tobacco Ltd

Blackstone Chambers’ Dinah Rose QC, Brian Kennelly QC and Jason Pobjoy, and 8 New Square’s Lindsay Lane and Maxwell Keay, instructed by Ashurst

For the defendant, the Secretary of State for Health

Blackstone Chambers’ James Eadie QC and Catherine Callaghan, 8 New Square’s Martin Howe QC, Monckton Chambers’ Ian Rogers QC, Julianne Kerr Morrison and Nikolaus Grubeck, and 8 New Square’s Jaani Riordan, instructed by the Government Legal Department

For the intervener, Action on Smoking and Health

Monckton Chambers’ Peter Oliver and Ligia Osepciu, instructed by Leigh Day

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