From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 4 May 2016

BREAKING NEWS: CJEU says Tobacco Products Directive is valid

The IPKat has been obsessively following the debate upon tobacco plain packaging and, as to the European Union, the tumultuous course of Directive 2014/40/EU (Tobacco Products Directive) on"the manufacture, presentation and sale of tobacco and related products". This directive was aimed at harmonising a number of aspects of tobacco manufacture and sale in the EU [see katposts hereherehere, here, and here]. From the IP angle, Chapter II of the Directive provides that packaging of tobacco products sold in the EU shall comply with a number of characteristics imagined to scare smokers and discourage people from even contemplating to start smoking. 

Among other things, Article 13 of the Directive provides that

"The labelling of unit packets and any outside packaging and the tobacco product itself shall not include any element or feature that … promotes a tobacco product or encourages its consumption by creating an erroneous impression about its characteristics"

and that

"The elements and features that ... are prohibited may include but are not limited to texts, symbols, names, trademarks, figurative or other signs".

Further, Article 24(2) of the Directive provides that

"This Directive shall not affect the right of a Member State to maintain or introduce further requirements, applicable to all products placed on its market, in relation to the standardisation of the packaging of tobacco products, where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive".

Does paternalism make you nervous?
Over the past months, the Court of Justice of the European Union (CJEU) has had to open three different files in this regard, with one glorious EU country (Poland), and a couple of UK judges seeking clarification as to the lawfulness of the Directive under different standpoints [Cases C-358/14, Poland v Parliament and Council; C-477/14, Pillbox 38(UK) Limited v Secretary of State for Health; and C-547/14, Philip Morris Brands SARL and Others v Secretary of State for Health]. The Polish case and that involving Pillbox38 challenged, respectively, the prohibition on menthol cigarettes and the new rules on electronic cigarettes.

Case C-547/14 specifically concerned plain packaging. Among other things, the referring court asked the CJEU whether

-       Articles 8, 9, 10, 11, 12, 13, 14, and 15 of the Directive, concerning tobacco labeling and packaging, comply with the principles of proportionality and subsidiarity;

-       Article 13 of the Directive complies with the principle of proportionality and/or with Article 11 of the Charter of Fundamental Rights. If so, the referral asked if Article 13, by prohibiting "any element or feature that … promotes a tobacco product or encourages its consumption by creating an erroneous impression about its characteristics", also prohibits true and non-misleading statements about tobacco products on the product packaging;

-       The extent to which Article 24(2) permits Member States to adopt more stringent rules in relation to matters relating to the 'standardisation' of the packaging of tobacco products.

With its decisions of today [Cases C-358/14, C-477/14, and C-547/14, still not available on the Curia website], the Court ruled that the Tobacco Products Directive is fully valid.

According to the press release, the CJEU ruled that Article 13, as well as the other provisions regarding "the integrity of health warnings after the packet has been opened, to the position and minimum dimensions of the health warnings and to the shape of unit packets of cigarettes, the minimum number of cigarettes per unit packet" and "health warnings covering 65% of the external front and back surface of each unit packet" are proportionate and well-compliant with the principle of subsidiarity, due to the overriding interest of public-health protection that the Directive intends to pursue.

...you'd better quit smoking, anyway.
As to the "true and non-misleading statements about tobacco products on the product packaging", the CJEU ruled that Article 13 shall be interpreted as meaning that it prohibits

"any element or feature that is such as to promote a tobacco product or encourage its consumption, even if these are factually accurate",

once again as

"that prohibition is such as to protect consumers against the risks associated with tobacco use and does not go beyond what is necessary in order to achieve the objective pursued".

As to Article 24(2), the CJEU stressed that the in-search-search-of-inflexibilities principle applies to the tobacco field too, ruling that

"at the outset, that the Member States may maintain or introduce further requirements solely in relation to aspects of the packaging of tobacco products that are not harmonised by the directive".

More  patronising in depth analysis will follow once the decision is made available. 

[UPDATE -- there are three CJEU decisions, actually: Case 547/2014, on plain packaging; C-358/2014, on menthol-cigarettes; C-477/2014, on electronic cigarettes].

2 comments:

Anonymous said...

C-358/14, C-477/14 and C-547/14 don't appear to be joined cases. The individual judgments are available on the Curia website.

Alberto Bellan said...

Well spotted, thanks!

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