The revised EU Tobacco Products Directive introduces new rules for tobacco-related products. In the face of the negative impact of smoking on people’s health – an estimated 700,000 deaths each year in the EU alone – the improved legislation is intended to ensure a high level of health protection while contributing to a reduction in tobacco consumption.
Although statistically the prevalence of smoking is on the decline, the EU tobacco policy has been unforgiving. The directive contemplates for the first time the introduction of plain packaging as a measure to decrease smoking initiation and increase cessation.
The new measures on the shape and appearance of packaging itself complement the existing rules regulating labelling with regards to warnings and information about the dangers to health of tar, nicotine and carbon monoxide level in cigarettes.
A number of studies have shown that plain packaging reduces the attractiveness of a product while health warnings, particularly pictorial ones, enjoy pride of place. The UK has passed legislation that will require cigarettes to be sold in plain packaging as from May this year and will prohibit the use of logos, colours, brand imagery or promotional text.
With regard to the presentation of tobacco products, the directive aims to achieve a standard shape, size and minimum content of cigarette packets. Packets must have a cuboid shape, respect certain dimensions, include at least 20 cigarettes and carry combined health warnings, comprising a stipulated text and photographic imagery. The warnings must be in line with further rules on print, visibility and indelibility. In particular, the health warnings must occupy 65 per cent of both the external front and back surface of the cigarette packet.
The directive rules out the possibility of references to taste, smell, flavourings or other additives – or their absence – on the labelling of tobacco products. In addition, the directive advances a general prohibition of all characterising flavours in cigarettes, for smell or taste including fruit, spice, herbs, alcohol, candy, menthol or vanilla, which is noticeable before or during smoking, or flavourings in any of the products’ components such as in filters, papers, or packages that modify the smell or taste of tobacco products or their smoke intensity.
Plain packaging as a measure to decrease smoking initiation and increase cessation
Furthermore, tobacco products must not have a misleading or deceptively positive presentation.
In addition, the provisions of the directive are also intended to prohibit the impression that tobacco products are healthy, ecologically beneficial or less harmful than other tobacco products or that they have economic advantages.
The aim is to eliminate any inducement to consumers to make a purchasing decision based or connected with the allegedly positive characteristics of a product. Within this highly regulated context, EU member states are free to determine their own requirements as to the colours of the parts of the packaging not reserved for health warnings. In the UK, for instance, all brand and product names must be displayed in a standard colour, font style and size, and positioned over a dull olive green-coloured background.
The new measures have not gone down well with tobacco companies, especially since their effect will lead to an almost total removal of designs and trademarks on cigarette packets.
Tobacco companies Philip Morris International, British American Tobacco, Imperial Tobacco and Japan Tobacco International have taken action in the UK High Court to challenge the directive. The tobacco companies contend that the rules unlawfully deprive them from their trademarks leading them to lose their highly valuable property rights and render products indistinguishable from each other. They also put forward the argument that the regulations obstruct the free movement of goods through means that are neither necessary nor proportionate to achieve public health objectives.
In her recent opinion, Advocate General Kokott dismissed the claims made by the tobacco companies and concluded that the new rules were lawfully adopted.
jgrech@demarcoassociates.com
Josette Grech is adviser on EU law at Guido de Marco & Associates.