#Tobacco: Court defends EU directive on tobacco products

E-cigarettes-more-or-less-effective-than-nicotine-patches-in-studyThe European Court of Justice (ECJ) has today (4 May) ruled against Poland, Romania, Philip Morris and others on the future EU-wide prohibition on menthol cigarettes, the standardisation of cigarette packaging, and the special rules for electronic cigarettes are lawful. The Court’s decisions were in response to three cases that concerned the EU Tobacco Products Directive.

Menthol flavoured cigarettes

It was claimed that chain-smoking former German Chancellor, Helmut Schmidt, had stockpiled menthol cigarettes anticipating the EU’s ban. Had Schmidt made it to his 102 year – a more than average innings for someone who smoked around 40 cigarettes a day – he would have been grateful for his foresight. Poland, supported by Romania, challenged the prohibition of menthol cigarettes under the directive. The ECJ have found that the EU’s decision to phase-out menthol cigarettes by 2020 is lawful and compliant with the principle of subsidiarity. The Court argues that the Directive facilitates the smooth functioning of the internal market for tobacco and related products and is at the same time appropriate for ensuring a high level of protection of human health, especially for young people.


On outside packaging the Court stated that the requirements were minimum requirements and that EU countries could introduce further requirements in areas that were not covered by the directive. The rules on packaging were found to be proportionate to protect consumers against the risks associated with tobacco use and that they did not go beyond what is needed to achieve the objective pursued.


Public health experts are divided on the subject of e-cigarettes. There is undoubtedly much to be gained if they help people ditch regular cigarette smoking, but there is also concern that their true impact is as yet unknown. The Court has defended the directive’s approach to e-cigarettes saying that by submitting them to a separate and less strict regime was justified as the products ‘display different objective characteristics’. This is therefore not a case of unequal treatment, but of different treatment for different products.

Background briefing from the British Medical Association (BMA)

The overarching goal of the Directive is to make tobacco products less attractive to young people. It foresees major revisions to the current Directive, strengthening rules on how tobacco products can be manufactured, presented, and sold, as well as introducing new measures for products that were not currently specifically regulated, such as e-cigarettes and herbal products for smoking.

The agreement stipulates that:

  • A ban on placing on the market of cigarettes and roll-your-own tobacco with characterising flavours – fruit, spice, herbs, alcohol, candy, menthol or vanilla will be introduced, although menthol would not be phased out until 2020. The ban will also apply to tobacco products containing additives in quantities that increase in a significant or measurable manner the toxic or addictive effect, or the carcinogenic, mutagenic or reprotoxic properties.
  • Slim cigarettes will be allowed on the market, although “slim lipstick” and “perfume packs” will be banned.
  • Cigarette packs will have to be at least 5cm wide and 2cm deep, and contain at least 20 cigarettes
  • A priority list of additives and enhanced reporting obligations – in addition to the reporting obligations laid down regarding the reporting of ingredients and emissions – shall apply to certain additives contained in cigarettes and roll-your-own tobacco. The European Commission (EC) shall adopt implementing acts laying down and subsequently updating such a priority list of additives. A first list of at least 15 additives shall be adopted within 2 years of entry into force of the Directive. Manufacturers and importers of cigarettes and roll-your-own tobacco containing an additive that is included in the priority list must carry out comprehensive studies, which shall examine for each additive whether it contributes to the toxicity or addictiveness of the products concerned, or results in a characterising flavour, facilitates inhalation or nicotine uptake or leads to the formation of substances that have CMR properties (properties of carcinogenicity, mutagenicity or reproductive toxicity). The use of additives necessary for the manufacture of tobacco products, for instance sugar, is allowed. These provisions shall not apply to tobacco for oral use.
  • Combined picture and text health warnings will have to cover 65 % of the front and the back of packages of tobacco products for smoking. In addition, each packet of smoking tobacco must carry a general warning (such as “Smoking kills – quit now”) and the information message: “Tobacco smoke contains over 70 substances known to cause cancer”.
  • A ban on any misleading labelling (such as “natural” or “organic”) will be introduced.
  • A tracking and tracing system, together with safety features in order to strengthen the fight against illicit trade and falsified products will be introduced.
  • Member states may decide to ban cross-border distance sales of tobacco products and may also introduce more stringent rules on additives or on packaging of tobacco products (such as plain-packaging).
  • E-cigarettes will be regulated for the first time. The agreement provides for two routes to putting e-cigarettes on the market: as a medicine or as a consumer product subject to hefty safeguards (a limit on nicotine strength of 20mg/ml, quality and purity standards, the same advertising bans as for cigarettes, a size limit and safety mechanisms for e-liquid bottles and refillable cigarettes). If companies choose to make a claim that their e-cigarette helps smokers quit, they will have to seek a medicines licence – and then the strength and advertising restrictions do not apply. The UK Government will be able to introduce extra safeguards (e.g. on age-limits and flavourings in e-cigarettes). Refillable cartridges would be allowed, albeit with a clause enabling the EC to extend the ban if such cartridges are prohibited in at least three member states. The EC shall submit a report on the potential risks to public health associated with the use of refillable electronic cigarettes within 2 years after entry into force of the Directive and where appropriate thereafter.


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Category: A Frontpage, Cigarettes, Electronic cigarettes, EU, European Court of Justice, Health, Poland, Romania

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