Rhein on Energy and Climate

During the last 10 years the EU has been involved in patient legislative procedure to reduce the health risks from smoking. In April 2014 it has approved the second “Tobacco Directive” which member states have to transpose into national legislation within two years.

The basic objective of the Directive is to make tobacco products less attractive, especially for young people.

To that end, it bans the use of menthol, vanilla and fruit flavours and stipulates that 65 per cent of the front and back of packages contain picture and text health warnings (like tissue mutilated by cancer or text messages like “smoking kills; stop now”) or be plain and void of any publicity.

The British government has been the first EU country to transpose the directive. By May 2016 cigarettes will have to be sold in plain packages.

The reaction from the tobacco industry has been prompt. The two tobacco giants, Philip Morris International and British American Tobacco have immediately filed suits against the British government at the High Court of Justice, arguing that the regulation would constitute an unlawful deprivation of property rights. Ireland and France are following suit.

In the USA the tobacco industry has been successful with its judicial protest. In 2013 after an appeals court ruling the Food and Drug Administration had to withdraw its order that would have required tobacco company companies to cover packages with health warnings.

It is difficult to imagine European courts to take as liberal a line as their US counterparts. After all, the new tobacco directive is the result of a very long and comprehensive legislative process of member states and the European Parliament; and it reflect the views of a majority of European citizens.

It would therefore raise a storm of protest by European health institutions and civil society. The best result the tobacco industry might achieve is a one to two year delay because of lengthy legal recourse.

Brussels 23.05. 2015 Eberhard Rhein

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