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7th Dec 2019

Tobacco giants win judicial review on EU bill

  • The tobacco directive was one of the most heavily lobbied EU bills in history (Photo: lanier67)

The EU's recently-agreed tobacco directive will be challenged at the bloc's top court after cigarette giants won a judicial review to examine whether the bill's provisions of more health warnings and product bans is disproportionate and infringes single market rules.

At the High Court in London on Monday (3 November), High Court judge Justice Turner referred the case to the European Court of Justice (ECJ) in Luxembourg, the ultimate arbitrator on the validity of EU law. The ECJ is expected to take two years before making a decision, during which time the directive will remain in force.

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The case was lodged in June by Philip Morris, the world's largest tobacco manufacturer, among a list of claimants including British American Tobacco and Japan Tobacco International.

Any judicial review of EU legislation must be initiated from national courts, and the tobacco giants chose the UK's High Court because of its reputation as a “fast and efficient forum for private litigants”, according to a statement issued by the claimants.

The legislation, which was signed off just before May's European elections, was subject to a bitter battle between MEPs and ministers and was one of the most heavily lobbied EU bills ever.

The rules eventually agreed by lawmakers will phase out the selling of menthol cigarettes, require manufacturers to put 'smoking kills' labels covering 65 percent of packets, and impose limits on the amount of nicotine in e-cigarettes.

The final bill, subject to over 1300 amendments, was a significantly watered down version of the proposal tabled by former EU health commissioner Tonio Borg, leading MEPs from the European Parliament's centre-left groups to accuse conservatives and liberals of being in the pocket of 'big tobacco'. Research for the European Commission has found that smoking kills around 700,000 people every year across the bloc.

In particular, lawmakers shied away from the move already taken by Australia to require plain packets for cigarettes, a total ban on advertising.

But the tobacco firms argue that the bill gives too much power to the European Commission and would lead to an illegal market for menthol cigarettes, which have become particularly popular among young people.

In a statement, Marc Firestone of Philip Morris said that the review marked "an important first step". The directive "purports to improve the internal tobacco market, yet instead includes a mix of product bans, mandates, and delegations of authority that raise serious questions under the EU Treaties," he said.

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