European court’s legal adviser rejects challenges to TPD

European Court of Justice - Cédric Puisney 900x540One of the European Union’s most senior legal officers has upheld the validity of the revised Tobacco Products Directive (TPD), calling its requirements on e-cig manufacturers “relatively moderate” and “not disproportionate”.

Juliane Kokott, an advocate general from Germany, today issued her opinion on a group of cases brought before the Court of Justice of the European Union (ECJ) contesting the TPD, including the argument by UK e-liquid manufacturer Totally Wicked that article 20 of the directive – which regulates e-cigarettes – is illegal under European law.

An advocate general’s advisory opinion is not binding on the court and can take a wider view of the legal context than the judges do, but observers of European jurisprudence say that the ECJ tends to agree with its advocates general more often than not. The court itself has yet to rule on the TPD cases, and a decision is expected early next year.

Article 20 of the TPD, which must be implemented in the domestic law of all 28 EU member states by May of 2016, imposes restrictions including limits on nicotine concentration and e-liquid container size, as well as a wide-ranging ban on advertising e-cigarettes. It also mandates health warnings on packaging, and registration of products.

Totally Wicked had contended that the article “represents a disproportionate impediment to the free movement of goods and the free provision of services, places electronic cigarettes at an unjustified competitive disadvantage to tobacco products, fails to comply with the general EU principle of equality, and breaches the fundamental rights of electronic cigarette manufacturers”.

But Kokott said that the rules for e-cigarettes are “relatively moderate, both in comparison with the rules for conventional tobacco products and by international standards, and are ultimately not disproportionate”.

She emphasised that “e-cigarettes are a novel and – for large parts of the population at least – still relatively little known product for which there is a rapidly developing market.

“In addition, it is not manifestly wrong or unreasonable to accept, in adopting internal market harmonisation measures, that e-cigarettes possibly cause risks to human health and that that product could – above all in the case of adolescents and young adults – develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption,” Kokott said.

Tobacco too

She also endorsed the TPD’s requirements for labelling and packaging of tobacco products, and the ban on menthol flavouring for combustible cigarettes.

On packaging, she said “it is neither arbitrary nor disproportionate to [require] health warnings” covering 65% of the two largest surfaces of cigarette packs, and that the directive was justified in banning “true statements on product packaging where those statements cast a tobacco product in a deceptively positive light”.

The TPD does not require plain packaging but leaves that option open to individual member states, another concern for the large group of tobacco companies led by Philip Morris International (PMI) and British American Tobacco (BAT) that were arguing against it.

On menthol, where Poland and Romania were contesting the directive’s ban, Kokott opined that the flavouring could “reduce or camouflage the generally very bitter and even pungent taste of tobacco smoke. This creates a serious risk that flavoured cigarettes will facilitate initiation of tobacco consumption for non-smokers and make it more difficult for habitual smokers to escape nicotine addiction.”

By the book

Overall, she said, “the EU legislature did not exceed the considerable latitude to be given to it in ensuring that tobacco and related products may be placed on the market under uniform conditions throughout the EU without losing sight of the fundamental objective of a high level of health protection”.

The TPD “does not infringe the principles of equal treatment, free competition, proportionality, legal certainty and subsidiarity or the obligation to provide a statement of reasons, or the fundamental rights of the manufacturers or retailers, in particular the freedom to conduct a business, the freedom of expression and the right to property”, added Kokott.

Her one small criticism of the TPD concerned its treatment of the European principle of subsidiarity, which holds that authority should be delegated to the lowest feasible level of government. Kokott said she “strongly advises the Union legislature to avoid in future empty formulas on the principle of subsidiarity like the one contained in the directive and instead to enhance the preamble to the EU measure in question with sufficiently substantial statements”.

What This Means: While the ECJ’s decision could still contradict the advocate general’s, Kokott’s position comes as no shock – and nor will it be any surprise if the ECJ takes the same line.

Some in the e-cig sector had perhaps placed too much faith in the TPD being overturned; now, it seems almost inevitable that its requirements will start to be a reality in less than six months.

The industry’s attention may well therefore turn to influencing the EU’s next review of its tobacco products regulation, which the European Commission is obliged to undertake by 2021. Pressure could bring that date forward, but in the meantime the e-cig business – and vapers – will likely have to learn to live with article 20 of the TPD.

Separately from that, Kokott’s views on menthol may also indicate the stance that the EU could take if it ever decides to regulate e-cig flavours, which the TPD does not cover.

– Barnaby Page ECigIntelligence staff

Photo: Cédric Puisney

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