A recent judgment of the Court of Justice of the European Union has put aside any doubt as to whether tobacco manufacturers and distributors ought to comply with the provisions of the 2014 EU directive on the manufacture, presentation and sale of tobacco products. The latter directive is valid, the court has confirmed and member states have until May 20 to transpose its provisions into national law.

This 2014 directive overhauled the regulation of the tobacco product market in Europe and harmonised the rules regulating the manufacture, presentation and sale of tobacco products while ensuring the utmost protection of consumers’ health.

In terms of the directive, cigarette packs must feature mandatory pictorial and text health warnings covering 65 per cent of the front and the back of cigarette packs – to be placed on the top edge. Half of the sides of packs must also be covered with health warnings, such as “smoking kills – quit now”.

In order to ensure that the health warnings on the packs are visible, the directive makes provision for the minimum dimensions of the warnings and provides that cigarette packs must have a cuboid shape. No promotional or misleading features such as, for example, references to lifestyle benefits, are allowed on packs.

Over and above these requirements, member states are allowed to introduce further measures relating to standardisation of packaging where they are justified on grounds of public health, are proportionate and do not lead to hidden barriers to trade between member states.

The directive also specifically provides for the prohibition as from May 20, 2020, of the placing on the market of tobacco products with a characterising flavour such as menthol. Electronic cigarettes are, in terms of the directive, subject to their own legal regime. All such products must be safe for use and of high quality. Member states enjoy a certain discretion in so far as e-cigarettes are concerned.

However, the directive makes provision for a maximum nicotine concentration level for e-cigarettes and maximum volumes for cartridges, tanks and containers of nicotine liquids. Only ingredients of high purity may be used in the nicotine-containing liquid and e-cigarettes are required to deliver the nicotine doses at consistent levels under normal conditions of use.

Health warnings on e-cigarette packs are also mandatory, as well as instructions for their use, information on addictiveness and toxicity, a list of all substances contained in the product and information on the product’s nicotine content.

Member states enjoy a certain discretion in so far as e-cigarettes are concerned

No promotional elements are allowed on packs of this type of cigarettes. Poland, supported by Romania, challenged the prohibition of placing on the market menthol cigarettes as a tobacco product containing a characterising flavour before the Court of Justice of the European Union.

The UK High Court also filed a preliminary reference requesting the Court of Justice for guidance as to whether a number of provisions of the directive on tobacco products are valid.

The validity of the provisions of the directive was contested on the basis of the fact that they are in breach of the fundamental principles of proportionality and subsidiarity which principles ought to permeate the EU’s legislative process.

The CJEU has confirmed the validity of the challenged provisions of the directive.

It noted that menthol, like other characterising flavours, makes tobacco products more attractive to consumers – hence, the importance of the prohibition of placing such products on the market in order to reduce tobacco use and dependence and to ensure the protection of consumers’ health.

The court also went on to confirm the validity of the packaging and labelling requirements stipulated by the directive. It noted that the prohibition to include any element or feature on the labelling which promotes tobacco products or encourages their consumption, even if these are factually accurate, is necessary in order to protect consumers against the risks associated with tobacco use.

It also upheld all other rules relating to health warnings. Similarly, the courtwent on to confirm the validity of the special legal regime regulating electronic cigarettes.

It noted in particular that electronic cigarettes display different characteristics from those of other tobacco products – hence, the submission of such products to a separate legal regime which is less strict than the one applicable to tobacco products.

In particular, the court emphasised that the prohibition imposed on economic operators to promote their products does not affect the right to freedom to conduct business and the property right recognised by the Charter of Fundamental Rights of the European Union.

It is not only the health of the consumer which stands to benefit from a strong harmonised legal framework regulating tobacco products in Europe. The benefits enjoyed by manufacturers through a level playing field also cannot be discarded. Healthier citizens also signify huge savings for member states which dedicate substantial human and financial resources to the health sector.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.