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European court paves the way for plain cigarette packaging

Aliya Ram in London

The EU’s highest court has opened the path to the introduction of plain cigarette packaging laws across the continent, striking a significant blow against tobacco companies.

In an opinion delivered on Wednesday, Juliane Kokott, the European Court of Justice’s advocate general, dismissed a legal challenge from the tobacco industry against EU plans to increase health warnings, ban menthol cigarettes and regulate ecigarettes.

The industry hoped that a ruling in its favour would block attempts by the UK, France and Ireland to introduce so-called “plain packaging”, when branded cigarette packs are replaced with dark brown or green boxes without pictures or design features.

The advocate general’s opinion is not binding but is usually upheld by the ECJ. It will come as a further setback to tobacco companies, which are facing declining smoking rates and greater regulation across the developed world.

The French parliament last week voted to introduce plain packaging just a day before the Australian high court defeated a challenge from Philip Morris International against branding restrictions.
PMI, British American Tobacco, Japan Tobacco and Imperial Tobacco have also challenged the UK government’s plain packaging rules, which will come into effect from May 2017. A decision is expected in the new year.

“While we are still analysing the [advocate general’s] opinion, we are obviously disappointed with its conclusions,” BAT said. “We have always maintained that the Tobacco Products Directive represents an unlawful and disproportionate incursion into the autonomy of the [EU] member states.”

When it launched its challenge, PMI said the EU directive would “disrupt the balance . . . between the union and the member states” by allowing nations to introduce rules above those in the directive that says cigarette packs have to be 65 per cent covered with health warnings.

“Rather than respecting such basic principles as genuine harmonisation and free movement, the [TPD] inexplicably encourages a patchwork of regulations,” it added on Wednesday.

But Ms Kokott said individual countries can introduce full plain packaging. “Since the directive specifies only a basic design, it also still leaves scope for additional national packaging standards, for example in respect of the colouring of surfaces not reserved for warnings,” she said.

Deborah Arnott, chief executive of antismoking group Ash, says if the opinion is upheld by the ECJ it would strengthen antismoking advocates across the developed world.

“The advocate general’s opinion that standardised packaging of cigarettes is legal in Europe, one of the world’s big trading blocks, sets the scene for it to go global,” she said.

On Wednesday Ms Kokott also said separate challenges against the directive’s ban on menthol cigarettes and regulation of ecigarettes should be dismissed.

Pillbox, an ecigarette manufacturer, said the regulation of ecigarettes under tobacco legislation is disproportionate. Ms Kokott said ecigarette rules will be “moderate” compared with tobacco regulations.

She also said menthol cigarettes should be banned under the TPD, despite a challenge from Poland where flavoured products are popular. Ms Kokott said “none of the arguments invoked by Poland and supported by Romania . . . is well founded”.

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