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Imperial Tobacco, one of the world’s biggest cigarette firms, loses display battle

Ministers say the ban is needed to protect future generations from the “devastating effects” of smoking.

Brian Farmer

Wednesday, 12 December 2012

One of the world’s biggest tobacco firms lost a Supreme Court fight today against a planned cigarette display ban.

The UK’s highest court dismissed an appeal by Imperial Tobacco against the Scottish Government’s attempts to ban the open display of cigarettes in shops.

At a hearing in London, lawyers representing Imperial, which is based in Bristol, asked a panel of five Supreme Court justices to analyse the issues after twice failing to persuade Scottish judges to set aside legislative provisions.

Ministers say display bans are needed to protect future generations from the “devastating effects” of smoking.

Imperial argues that there is no credible evidence that display bans have cut tobacco consumption.

Imperial, the firm behind Lambert & Butler and Richmond cigarette brands, also opposed a ban on tobacco vending machines.

It argued that the legislative provisions dealing with display bans fall outside the scope of the Scottish Government and are matters reserved for the UK Parliament in London.

The company’s civil court challenge has delayed the implementation of measures aimed at stopping people smoking.

Ministers intended to introduce the display ban in large shops in Scotland – the first part of the UK to adopt a ban on smoking in public places – in April.

Imperial initially sought a judicial review of ministers’ plans for display bans.

A judge in Scotland ruled against the firm in September 2010.

Imperial appealed but three judges rejected the challenge in February.

That decision was welcomed by Scotland’s public health minister Michael Matheson, who said the proposals would play a “crucial role” in preventing youngsters from starting to smoke.

But Imperial voiced disappointment and appealed to the Supreme Court.

At the Supreme Court, Imperial argued that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 were “outside the legislative competence of the Scottish Parliament”.

Section 1 prohibits the display of tobacco products in a place where they are offered for sale and section 9 prohibits vending machines for the sale of tobacco products.

Today, the justices unanimously dismissed Imperial’s appeal, ruling that the two sections “are within the legislative competence of the Scottish Parliament”.

Announcing the decision of the court, Lord Hope said: “The purpose of section 1 is to enable the Scottish ministers to take steps which might render tobacco products less visible to potential consumers and thereby achieve a reduction in sales and thus in smoking.

“The purpose of section 9 is to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. The legal effect and short-term consequences are consistent with those purposes.”

He said the court “does not see how it can be said that the purpose of sections 1 and 9 has anything to do with consumer protection”.

Lord Hope added: “The aim of sections 1 and 9 is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices.

“The purpose of sections 1 and 9 also has nothing to do with the standards of safety to be observed in the production and sale of tobacco products.

“Sections 1 and 9 are designed to promote public health by reducing the attractiveness and availability of tobacco products, not to prohibit in any way their sale to those who wish and are old enough to purchase them.”


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