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EU tobacco laws take effect

A raft of new EU tobacco rules – including the introduction of standardised packaging for tobacco products in the UK – began on Friday 20 May.

Under the EU Tobacco Products Directive (EUTPD2), packs of 10 cigarettes will be banned, with pictorial health warnings covering 65% of the front and back of packets made mandatory as part of a wider body of measures that will also ban menthol and flavoured cigarettes from May 2020.

The European Court of Justice had earlier ruled that EUTPD2, which had been held up by a series of legal challenges, was lawful.

The introduction of the new directive coincides with the UK government’s adoption of plain packaging in the UK following a High Court ruling that dismissed a legal challenge brought by major tobacco companies who questioned the lawfulness of the move. Legislation on plain packaging has also been passed in France and Ireland, following Australia in 2012.

“We believe this will have a substantial impact on the business – all this is serving to do is to put British duty free shops at a competitive disadvantage,” an industry source told Frontier.

Japan Tobacco International (JTI) has called the new EU measures “extreme” in “a package of some of the strictest anti-tobacco measures in the world”.

“This is an attack on adult consumers’ freedom of choice and yet another example of extreme regulation,” said Ben Townsend, JTi’s EU affairs vice-president.

“The measures in the directive are so complex that regulators in many EU countries have struggled to draft the national laws it requires – leaving everyone confused in a last-minute scramble to comply ahead of the deadline.”

A statement obtained by Frontier from Imperial Tobacco UK confirmed the company’s disappointment at the plain packaging decision, adding that it would take time to review the judgement before considering its legal position.

“As a responsible business we have been preparing for all possible outcomes and are ready to comply with the introduction of both the plain packaging legislation and the revised EU Tobacco Product Directive,” said a spokesperson.

“Products manufactured before 20 May can continue to be sold by retailers for a further 12 months and our main focus is to support our trade customers through this transition period.

“We have been preparing for plain packaging and EUTPD2 for around three years and are confident that our brand and product portfolios are well positioned.”

British American Tobacco (BAT) was adamant that the decision, delivered in a 386-page written ruling by Mr Justice Green, did not represent closure on the issue of 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,” a spokesperson said in a statement.

“It’s important to appreciate that a UK decision is not a precedent for other governments to introduce plain packaging.

“No two jurisdictions are the same and any government considering plain packaging will need to ensure that it complies with the fundamental rights of businesses relevant to that country, and be mindful of the World Trade Organisation dispute on plain packaging, which is still ongoing.”

EU Member states, including the UK, agreed to revise provisions on tobacco under EUTPD2 in 2014 in an attempt to harmonise trading conditions.

Tobacco packaging guidelines from the UK Department of Health state the move towards plain packaging is intended to reduce the appeal of tobacco products to consumers, particularly among young people.

The regulations, which apply to England, Northern Ireland, Scotland and Wales, also include other rules under EUTPD2, such as minimum-sized health warnings for all tobacco products.

All relevant products branded, manufactured or imported into the UK must now comply with the new EUTPD2 and standardised packaging if they are to be consumed in the UK, the guidelines continued.

The rules apply to individual cigarette sticks, cigarette packs and hand rolling packs – which must weight a minimum of 30g – but do not apply to cigarette papers or e-cigarettes, which are subject to separate rules.

Pipe tobacco, water pipe tobacco, blunts and some cigars and cigarillos are classified as ‘other tobacco products’ (OTPs). OTP’s are not subject to standardised packaging, but will be subject to separate packaging requirements under EUTPD2.

The same applies to cigars, cigarillos and smokeless tobacco, which are exempt from standardised packaging but subject to EUTPD2 criteria, and will have to comply with general health warnings.

Packs should be cuboid in shape and non-shiny drab dark brown, with brand names permitted according to set font, size and position types. Trademarks, logos, colour schemes and promotional images are also prohibited.

Companies have until 21 May 2017 to comply with the rules, enabling retailers to sell old branded stock.

In a separate development, tobacco – including e-cigarette – suppliers will need to register their businesses if they provide cross-border distance sales, including online.

This applies to companies established in the UK selling tobacco products and/or e-cigarettes to consumers in one of the 28 member states designated within the European Economic Area (EEA) – plus Iceland, Liechenstein and Norway – alongside businesses established in the EEA or any country selling to UK consumers.

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