Tobacco products in the line of fire
Europe will soon be adopting a more rigorous approach towards tobacco products. In the wake of the recent blessing given by Australian courts to the Australian government to adopt stringent rules regulating the packaging of cigarettes, the European Commission has expressed its intention to possibly follow suit.
The European Commission has never turned back since adopting the first tobacco-related piece of legislation in the 1980s. Along the years, various EU laws regulating the tobacco industry have been promulgated targeting different aspects, ranging from product regulation to advertising, protecting citizens from second-hand smoke to smoking prevention. Just last June, the Commission launched a new online tool called “iCoach” which contains a number of different stages designed to offer smokers practical advice on how to overcome nicotine addiction.
The EU’s 2001 directive required all member states to ensure that cigarette packs carry text health warnings, and in 2005 the Commission recommended a series of graphic images to illustrate health risks. The Commission has now announced its intention to go yet a step further. A draft revision to the 2001 Tobacco Products Directive should shortly be published with the objective of providing for more stringent rules on packaging and advertising as well as to extend legislation to cover newer tobacco products such as electronic cigarettes.
It seems that, at the moment, various options are being discussed, first and foremost, that of banning logos on cigarette packs and imposing on cigarette manufacturers the obligation to use only plain packaging. In this way, Europe would be following in Australia’s footsteps. The Australian government has recently obliged tobacco companies to sell cigarettes in buff packaging free of trademarks and logos but carry dominant pictorial health warnings. Printing larger graphic images on cigarette packs of the diseases linked to smoking also appears to be on the Commission’s list of options.
The Commission strongly believes that plain packaging could prevent young people from getting hooked on tobacco since a cigarette brand can become a status symbol just like other products. On the other hand, industry is complaining that such an approach to packaging would infringe on intellectual property rights and boost sales of fake or illegally imported cigarettes.
Cigarette retailers are also claiming that if measures such as display bans, plain packaging, oversized health warnings and bans on ingredients were to be introduced, these could result in a loss of up to €20 billion in European tax revenue. Industry players have gone as far as to threaten the European Commission with legal action should it go down Australia’s route, asserting that the EU has no competence to regulate something which is not causing any distortions to the EU’s single market.
Interesting as such legal reasoning could be, statistics prove that Europe has the world’s highest rate of smokers aged 13 to 15. The Commission has always honoured its duty to maintain a strong tobacco-control policy to ensure a high level of public health for European citizens.
On the other hand, one cannot ignore the serious occupational, economic and fiscal repercussions that a too harsh tobacco regulatory regime could leave in its wake, particularly when faced with ever-rising unemployment figures and the current economic turmoil in Europe.
A balance between the two must therefore be sought to ensure that any legislative enactments would leave the desired positive effects for all and sundry.
Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.