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Howells, Geraint --- "Tackling tobacco the European way" [2001] NZYbkNZJur 5; (2001) 5 Yearbook of New Zealand Jurisprudence 75

Last Updated: 12 April 2015

Tackling Tobacco the European Way



In an ideal world there would be little need for laws regulating what people can and cannot do. People would behave responsibly and look after their own interests and take care to avoid harming others. Today we are seeing an increased use of laws, some of which prohibit us from doing things we previously treated as part of our normal life. Tobacco laws are a good example. They can threaten the high-tar cigarettes that some used to enjoy and prevent people from smoking in places where this used to be commonplace like trains, planes, bars and offices.

To some this is a sign of the nanny-state infringing on individual liberty) However, legislative intervention may be needed partly because, as our world becomes more complex and risky, we become less able to take control of all aspects of our life. The decision to smoke involves assessing a complex array of factors and is taken against a cultural background highly influenced by media and advertising. The impact

Professor of Law, University of Sheffield, UK. This research is based on earlier research into tobacco liability and regulation funded by the British Academy.

See Crosby, S 'The New Tobacco Control Directive: An Illiberal and Illegal Disdain for the Law' (2002) 27 Eur L Rev 177, quoting MacCormick, N `Some Questions of Freedom', in Sovereignty, Law and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999) who at 157 states 'Part of the point of "free countries" in this sense is that people are free to do foolish or undesirable things as well as wise and admirable

ones. You might overhear the dialogue 'Mind if 1 smoke here?' - a free
country.' This does not contextually imply that the second party approves of the first party's smoking, but indeed quite the reverse. Yet however grudgingly and with however censorious an attitude, the non-smoker acknowledges the other's right to make her own choice and act on it. When (or to the extent that) a country is "free" in this sense, the scheme of government, including the law's restraint on wrongdoing, is such as to leave a wide range of choices open to the citizens, without seeking excessively to discipline them for their own good.'
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of smoking on others raises a further set of issues that may be difficult for most smokers to process. Moreover, the law's involvement may have come about because our knowledge of risks and our expectations of what the law (and government) can do in relation to them are ever increasing. Tobacco is a good case in point. We now know that tobacco, amongst other things, can cause cancer and increase the risk of heart disease. Tobacco is thus a public health problem and the law is increasingly seen as having a role to play in controlling tobacco's use and effects.

The law is seen as having a role in protecting non-smokers from passive smoking, at least informing smokers of the risks of smoking, and often forms part of a strategy to deter smoking. This deterrence is sometimes restricted to children, who should not, it is argued, be exposed to a dangerous, addictive (or at least habit-forming) product before they are mature enough to assess the risks. Increasingly, however, regulators are targeting adults with messages to give up smoking. These warnings advise of the possible consequences of smoking. Regulators also aim to reduce the risk of harm by restricting the type of product sold. Whilst to some this is a symptom of the interfering state, to others it represents responsible government for states to act in the face of a serious and preventable risk to health.

The law frequently uses a number of levers to control behaviour. The choice between them will depend both on the objectives to be achieved and the most efficient means of achieving them. Even the most pro-tobacco advocates would concede the need for some legal intervention; for instance, related to restricting under-age sales and informing consumers of the tar content and nicotine yield of the product, albeit that there has been some reluctance at times to disclose all of the additives used. There is also a fair degree of consensus over providing warnings that the product might harm health, although there is dispute about the form and content of such warnings. Where disagreement tends to arise is over controls on the content of the product and its advertising and promotion. There is an even more contentious set of issues surrounding environmental tobacco smoke, i.e. passive smoking, which will not be touched upon in this essay.'

2 It has not been the subject of any binding EC laws, but see Resolution of the

Council and the Ministers for Health of the Member States of 18 July 1989 on banning smoking in places open to the public: OJ 1989 C 189/1.
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Manufacturers are suspicious of regulations that specify maximum nicotine, tar and carbon monoxide levels or that seek to control the additives they can add to their products. Obviously such controls limit their ability to manipulate these elements to produce a product that is more appealing. There is also some scepticism as to whether this approach can work: it may even be dangerous, if it gives some smokers an excuse for continuing to smoke allegedly safer brands. This reasoning lies behind the recent move in Europe to ban descriptors like 'light' or 'mild'. In part, the reason the US Supreme Court did not find the Food and Drug Administration (FDA) had authority over tobacco was that the FDA would have had no rational choice but to ban it.' Thus one approach might be to keep the regulators' hands clean and thus avoid the appearance of condoning some allegedly safer (but still dangerous) tobacco products. We shall see that this has not been the route taken by Europe.

Another battleground is the question of advertising. Tobacco control lobbyists point to the mortality rate from tobacco' and argue that advertising and other promotional activities are needed by the tobacco industry to replace those consumers that its product has killed off.5 The industry counters that the advertising simply seeks to promote inter-brand competition. Their opponents argue that the amounts spent could not be justified solely on that basis given the relatively strong brand loyalty associated with tobacco products. In the US there has been relatively little control on advertising due to first amendment commercial free speech doctrine. What regulation there is has tended to be limited to matters like restricting advertising in the proximity of schools. Again, as we shall see, Europe has taken a different approach.

Regulation is easier in Europe than in the US, which is one reason why regulation is more favoured in Europe. The powerful lobbying

  1. Food and Drug Administration, et al v Brown Williamson Tobacco, [2000] USSC 24; 529 U.S. 120; 120 S. Ct. 1291.
  2. The WHO estimate that 500 million people alive today will be killed by tobacco. In 1998 approximately 4 million deaths were caused by tobacco and this is set to increase to 8.4 million by 2020. See WHO, World Health Report 1999.
  3. See Slade, J 'Marketing Policies' in Rabin R and Sugarman S (eds) Regulating Tobacco (Oxford: Oxford University Press, 2001).

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power of the tobacco industry in the US combined with labyrinthine Congressional procedures and constitutional limits made it very difficult for political progress on tobacco control measures. This resulted in tobacco being dealt with through litigation. Much publicity has been given to the multi-state master settlement agreement to recover health care costs6 and litigation such as the Engle case, where $144 billion was awarded in damages.' Those who favour such approaches tend to argue that the most efficient way to limit the number of deaths from tobacco products is not to regulate advertising and product content but rather to make producers pay for the harm they cause. This gives producers incentives to make safer products and also forces the price up to a level where only those who value the product's benefits are willing to pay the price of its risks.8

Product liability litigation over tobacco has not been very successful in Europe.' There are many structural reasons for this. For instance, there are no, or less developed, class actions. There is a less entrepreneurial plaintiff bar due to European lawyers not having the same incentives as exist under the US contingent fee system. They are unable to feed off generous damages, particularly punitive damages; nor, in most jurisdictions, can they put their case before a jury. Indeed, even under the US system there were decades of unsuccessful tobacco liability cases before the first successes.'10 There are still some signs of

  1. There is a useful analysis by the Tobacco Control Resource Center at <http:/ />.
  2. Engle v RJ Reynolds Tobacco Co (No 94-08273): jury verdict of 14 July 2000: see discussion at <> .
  3. Hanson, J and Kysar, D 'Taking behaviouralism seriously: The problem of market manipulation' (1999) New York UL Rev 630.
  4. Howells, G 'Tobacco litigation in the U.S. — its impact in the United Kingdom' (1998) 22 Southern Illinois University Law Journal 693.
  5. See Rabin, R 'Institutional and historical perspectives on tobacco tort liability' and Schwartz, G 'Tobacco liability in the courts' in Rabin R and Sugarman S (eds) Smoking Policy: Law, Politics & Culture, (Oxford: Oxford University Press, 1993) and Daynard, R and Kelder, G 'The role of litigation in the effective control of the sale and use of tobacco' (1997) 8 Stanford Law and Policy Review 63.

2001 Tackling Tobacco the European Way 79
activity on the product liability front in Europe," but it seems that public law regulation rather than private law liability will be the Europeans' preferred tool for dealing with public health problems surrounding tobacco.

The European regulatory approach is open to the challenge that the norms adopted are ineffective. This lack of effectiveness may be simply due to the inherent lack of utility in the rule introduced. For instance, it might be argued that controls of product content to reduce tar and nicotine are meaningless if smokers simply adapt their behaviour by smoking more or differently, by, for example, covering up the holes on filters. The regulatory approach might also be criticised because it provides tobacco companies with an incentive to avoid its impact so far as possible in order to stay ahead of their competitors.' For the most part these objections tend to go more to the debate about the nature and style of regulation. They are not reasons to condemn the regulatory approach altogether. The European regulation of tobacco will be presented as a fair attempt to control a complex social phenomenon. It can nevertheless be better refined and indeed much could be gained from greater openness about the objectives of tobacco control. Regulation remains a more certain way of dealing with the problem than relying on the liability lottery approach. However, if the regulatory approach does not succeed because of litigation challenging democratically adopted laws, the European anti-tobacco lobby may be forced to find justice in the courts. This is not a happy scenario for anyone except industry lawyers and the few successful claimant lawyers.

Public policy cannot be assured through liability laws. Indeed, it is by no means certain that the US product liability system will deliver consistent solutions. It is unlikely that the political will would ever

1 1 For instance, there is a Scottish case of McTeer soon to be litigated and litigation is pending in Ireland. Some health insurers in some countries are contemplating actions. There have so far been no successful actions in Europe. The closest has been a decision of the Court of Appeals of Orleon in favour of Richard Gourlain on 2 April 2001, but that victory was overturned on appeal. The Finnish Supreme Court has rejected a claim brought on behalf of a smoker.

12 Hanson and Kysar, supra n 8.
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exist in the US to introduce a special no-fault liability regime for tobacco, and in the meantime it is something of a lottery as to whether plaintiffs are successful." Success in tort cases is even less likely in Europe, where the support structures for tobacco litigation do not exist. If regulation is the best route for Europe, the next question to address is the respective roles of the nation-state and the EC. It will be argued that the nation-state should provide a bedrock for public health policy, and that any EC laws should build on best practice and ensure a wider coverage of accepted norms but not inhibit national activity. In time the bottom-up approach can also filter through to international initiatives such as the Tobacco Framework Convention being drafted by the WHO. In this way minimum regulatory standards can be established not only in the EU and US but also in developing countries which currently have neither the protection of regulation nor liability laws against tobacco companies eager to expand into new and emerging markets.

The purpose of this article is to introduce the European debate on tobacco control to the New Zealand audience and in so doing also shed some light on the problems of distributing power among the member states. The European approach of emphasising regulation rather than litigation should interest New Zealand. The virtual abolition of civil actions for personal injury by Accident Compensation legislation makes New Zealand even more receptive to regulation, even though the effects of smoking are 'gradual processes' outside that legislation and thus apparently not excluded from litigation. The legal controls are presently to be found in the Smoke-free Environments Act 1990 (as amended). This Act contains rules on preventing harm from secondhand smoke which are very well developed. There are also fairly strong controls on advertising:4 However, whilst there are powers to place limits on harmful constituents of tobacco products (like tar, nicotine and carbon monoxide) the necessary regulations to make these effective do not yet seem to have been put in place.'

13 Sugarman, S 'Mixed results from recent United States tobacco litigation' [2002] Tort Law Review 94.

14 Sections 22-29.

15 Section 31.

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Finally, before starting to look at the EU law on tobacco regulation it should be noted that such regulation exists alongside national regulation. As might be expected, the extent of national controls on tobacco varies widely among member states. This explains the legal basis for EU intervention, which rests on the need to approximate the rules and promote the internal market in tobacco products. Indeed, one of the questions this essay will consider is the relationship between EU and national law, for in some instances EU laws, once in place, can remove the freedom of member states to retain or introduce national rules.

The early development of tobacco regulation in Europe16

The political impetus to deal with tobacco as a European issue came from the three Europe Against Cancer programmes." Tobacco policy is now included under the public health action plan."' An assessment of the Community's approach to tobacco was produced in [999.1' Its latest thinking is found in the explanatory memorandum that accompanies the Proposal for a Council Recommendation on the prevention of smoking and on initiatives to improve tobacco control.'10

16 For a useful survey see Hervey, TK 'Up in smoke? Community (anti-) tobacco law and policy' [2001[ Eur.L.R. 101.

  1. 1986 Resolution: 0J 1986 C 184/19; Decision 1990/238/EEC (1990-94) OJ 1990 L137/31; Decision 646/96/EC [1996[ OJ L 95/9 [1996[ 0.1 L150/ 43. This was extended kw a further two years until the end of 2002 awaiting the EU Framework Programme on Public Health. See speech by EU Commissioner D Byrne 'The European dimension of tobacco control legislation' Speech to Office of Tobacco Control Conference, Dublin, I November 2(X)1.
  1. See Communication on the Health Strategy of the European Community, COM (2000) 285 and now Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002 adopting a programme of Community action in the field of public health (2003-2008) 0J 2002 L 271/1.
  1. Report from the Commission, Progress achieved in relation to public health protection from the hazardous effects of tobacco consumption, COM (1999) 407.

20 COM (2002) 303.
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From the first programme the Community's anti-tobacco activities were seen as having three strands: cancer prevention; information and public awareness; and training. Law is only one element of this approach. So far as the law seeks through labelling and warnings to inform the public of risks, it fits into the information and public awareness approach. However, the EC has gone further than merely seeking to inform the public and has also tried to control the content of tobacco products in an attempt to make them safer.

Directive 89/622/EEC21 on the labelling of tobacco products required that the tar and nicotine yield should be displayed on the side of cigarette packets. Also all unit packets of tobacco should carry the warning `Tobacco Seriously Damages Health', with cigarettes carrying another warning on the other large surface. This warning was to be selected from a list drawn up by the member states from those found in the annex to the directive. The directive included rules on the form and size of the labelling and the requirement that it be in the official language of the country where it was marketed. This directive was amended by Directive 92/41/EEC22 so that the additional warning requirements that had previously applied only to cigarettes were extended to other tobacco products. Oral tobacco products were prohibited.23 The other major early piece of EC tobacco legislation was Directive 90/239/EEC.' This set the maximum tar yield for cigarettes at 15 mg per cigarette from 31 December 1992, reducing to 12 mg by 30 September 1997.25

Both Directive 89/622/EEC and Directive 90/239/EEC contained a so-called free movement clause under which products that complied

  1. Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products: OJ 1989 L 359/1.

22 OJ 1992 L158/30.

23 A permanent derogation from this provision was allowed for Sweden in their Accession Treaty, article 151: OJ 1994 C 241/341.

  1. Council Directive 90/239/EEC of 17 May 1990 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the maximum tar yield of cigarettes: OJ 1990 L 137/36.
  2. Greece was allowed an extended period to gradually reduce to this second level by December 31 2006.

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with the directive's rules on labelling and tar yields could not be denied access to national markets because they failed to comply with national rules on those matters. Within the scope of the directives, member states could not impose stricter requirements, although they were free to impose higher standards on domestic producers.26

This free movement provision has come to be seen as crucial evidence of the directive's intent to deal with an internal market problem. Internal market justifications are mentioned in the preamble to the directives, as the legal basis of the directives must be justified by internal market concerns.' Harmonising measures relating to public health matters remain excluded by the Treaty that established the EC.28 However, both directives also mentioned public health concerns and specifically refer to the Europe against Cancer programmes. Directive 89/622/ EEC notes that health warnings are vital in public health protection and indications of tar and nicotine yields are essential for health information and education.' Directive 90/239/EEC notes the link between smoking tobacco with high tar content and lung cancer and also comments that it is more desirable for smokers to stop smoking rather than switch to low-tar cigarettes.'" This is important, because directives that can be independently justified by internal market justifications can also seek to promote public health in the process. Indeed the present Treaty provides that such measures should take as their base a high level of protection.' Nevertheless, in the first place these measures have to be justified in their own right as internal market measures. Much of the discussion of this topic has centred around a decision of the European Court of Justice (ECJ) annulling a directive banning advertising and sponsorship of tobacco products. This case is discussed in detail in the next section.

  1. R. v Secretary of State for Health Ex p. Gallaher Lid, Case 11/92 19931iCR 1-3545.

27 See article 100(a) (now article 95).

28 Article 142(4)(c).

29 Recitals 6 and 7.

30 Recitals 4 and S.

3i Article 95(3).
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Since 1989 the EC had been trying to adopt a directive on tobacco advertising. The scope of this ban increased during the process of its elaboration until a fairly broad ban was introduced by Directive 98/ 43/EC.32 Prior to this the only Community regulation of tobacco advertising was Directive 89/552/EEC33 (the 'television without frontiers' directive) which had banned the advertising of tobacco products. This was later extended to cover teleshopping as well as advertising.34 The preamble to the television directive simply says that it is necessary to prohibit such advertising,35 but gives no explanation as to why this should be necessary. Certainly one can imagine public health motivations were to the fore.

The Community has other connections with tobacco. It is a supporter of tobacco production under the Common Agricultural Policy36 and

  1. Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products: OJ 1998 L213/9.
  2. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities: OJ 1989 L 298/23.
  3. Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities: OJ 1997 L 202/60.
Recital 28.
See Regulation 1636/98/EC: OJ 1998 L 210/23. Support continues but attempts are being made to make it more consistent with the general anti-tobacco strategy of the EC. Since Regulation 2075/92/EEC: OJ 1992 L 215/ 70 1% of the premium has gone into a Community Tobacco Research Fund to develop higher-quality tobacco that is generally less harmful. The fund can also be used for other matters such as information campaigns on the dangers of smoking, other uses of tobacco and conversion of tobacco growers to other crops. The amount going to the fund has since been doubled. See Hervey (supra n 16) 109-110.

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has an interest in the tax regimes surrounding tobacco." It is also developing a policy on environmental tobacco smoke. However, most legal interest currently concerns two issues. The first is attempts of the Community to regulate tobacco advertising in the wake of the ECJ annulment of the earlier advertising directive. The second is the future of the tobacco products directive, which brings together and strengthens the rules on labelling, warnings and product content in the earlier directives. The latter has recently been the subject of a largely unsuccessful challenge in the ECJ. First the landmark case annulling the tobacco advertising directive will be reviewed. This case may have far wider significance beyond the tobacco field, but certainly will impact seriously in this area of policy.

The annulled tobacco advertising directive38

This directive banned, with very limited exemptions, all forms of advertising and sponsorship in the Community. Exemptions applied to diversification products (where the tobacco brand name was used for another product, such as Camel boots); communications within the trade; advertising at tobacco outlets; and advertising in publications from third countries not principally intended for the Community market. Deferred implementation was permitted in certain circumstances, notably in relation to international sporting events such as Formula One racing. Member states were free to have stricter requirements.

The strictness of the ban had steadily increased during the legislative passage of the directive. The directive first proposed in 1989 had merely addressed tobacco advertising in the press and by means of bills and

37 Directive 92/79/EEC approximates taxes on cigarettes: OJ 1992 L 316/1, amended by Directive 99/81/EC: OJ L 211/47. Directive 92/80/EC deals with taxes on other manufactured tobacco products: OJ 1992 L 316/10 and Directive 95/59/EEC deals with taxes other than turnover taxes that affect consumption of manufactured tobacco: OJ 1995 L 291/40. However, these directives leave a lot of discretion, leading to large disparities in price which encourage smuggling: see Hervey (supra n 16) 109.

38 Directive 98/43/EC of the European Parliament and of the Council of 6 July

1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products: OJ 1998 L 213/9.

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posters.39 Such advertising would have had to carry health warnings and be restricted to information about the product and presentation of its packaging. All advertising in publications mainly aimed at under-18-year-olds would also have been banned. On the other hand, member states could not cite tobacco advertising as a reason for prohibiting and restricting the sale of publications and the display of bills. This provision reveals the internal market dimension of the measure. Member states would accept some restrictions in return for free circulation of products. Crucially such equilibrium was missing in the final directive. Although the Commission had earlier considered a complete ban premature, it did include such a provision in its second proposed directive of 1991.4"

Recitals to directives explain their intentions. The first proposal had suggested that national rules were likely to constitute barriers to trade and to distort competition. The internal market dimension was to the fore. However, the first proposal also said that due account should be taken of public health protection, in particular in relation to young people, and referred to the Europe against Cancer programme. The second, expanded, proposal recited for the first time the interdependence between the different forms of advertising and the fact that tobacco consumption is an important death factor. When the Council adopted a common position it added a recital referring to other internal market directives affecting advertising of tobacco products, and omitted three recitals linked to the public health dimension of the proposal (those mentioning the European action programme against cancer and stating that tobacco consumption was a very important death factor in member states). This apparent attempt to 'camouflage' public health aims was not crucial in the final instance as the Court held public health could be a legitimate determinant of rules created to facilitate the internal market. Nevertheless, those opposing the directive seized upon changes to the original proposal as evidence that public health was the true motivation of the directive's drafters.

From the anti-tobacco perspective, however, the apparent emphasis on the internal market dimension rather than on public health was

39 OJ 1989 C 124/5.

40 OJ 1991 C 167/3, slightly amended version OJ 1992 C 129/5.
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significant. Whilst the EC Treaty had a provision on public health, article 129(4)41 (which permitted 'incentive measures designed to protect and improve human health' ), it expressly excluded 'any harmonisation of the laws and regulations of the Member States.' Instead reliance was placed on article 100(a), which allowed `approximation of the provisions laid down by law, regulation or administrative action in the Member States which have as their object the establishment and functioning of the internal market.'42 Council added at the Common Position stage reference to articles 57(2) and 66, which were concerned with the freedom to provide services. When undertaking these harmonisation measures health concerns can be taken into account. This is expressly stated in article 100(a), which provides that any Commission proposal will take as a base a high level of protection. Article 129(1) says 'the Community shall contribute towards ensuring a high level of human health protection by encouraging cooperation between the Member States and, if necessary, lending support to their action.' This article also says that 'health requirements shall form a constituent part of the Community's other policies.'

The European Court judgment

The issue of federal competency to regulate tobacco advertising was the subject of an important decision of the European Court of Justice, Germany v European Parliament and Council43 in which the Court

  1. Article 129 is now numbered article 152 in the latest consolidated version of the Treaty establishing the European Community.
  2. See article 235 which provides a fallback provision allowing appropriate measures to be taken where the Treaty does not contain the necessary powers to take the action necessary to attain one of the Community's objectives. This power can only be used where no valid power exists.
  3. C-376/98, (2000) All ER (EC) 769. For a fuller discussion of this decision by the present author see 'Federalism in USA and EC — The scope for harmonised legislative activity compared' (2002) European Review of Private Law 10(5) 601. At the same time the Court decided the case of R v Secretary of State for Health, ex parte Imperial Tobacco and others, C-74/99, in which the English High Court had referred the question of the same directive's validity. The reference was made by Turner J who also granted an injunction to the tobacco companies preventing the UK implementing regulations being adopted prior to the European Court's decision. This injunction was

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found the internal market basis for adopting the tobacco advertising directive inadequate.44

The European legislator can only act within enumerated powers.' In this context it is important to note that article 3 of the EC Treaty defines the activities of the Community as including:

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons and services and capital; ...

(g) a system ensuring that competition in the internal market is not distorted;
(g) the approximation of the laws of the Member States to the extent required for the functioning of the common market ...

The internal market is said to 'comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured' .46

The internal market provision of article 95 (formerly article 100(a)) and the similar provision in relation to services have been accepted as providing three grounds for Community law. These are to promote free movement of goods, services, persons and capital by eliminating barriers to trade; to prevent distortions in competition; and to prevent

overturned by the Court of Appeal, which said the stricter test in European law for granting injunctions should apply: [2000] 1 All ER 572. The House of Lords did not make an order as by the time it passed judgment the directive had been annulled but thought it arguable the European law on injunctions should be applied: [2000] UKHL 60; [2001] 1 All ER 850.

  1. Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products: OJ 1998 L 213/9.
  2. Article 5 (formerly 3b), first indent: 'The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.'

46 Article 14 (2) (formerly article 7a).
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possible future obstacles to trade resulting from national legislators' disparate responses as they start to address an issue.47

The Court rejected the argument that article 100(a) vested the Community legislature with a general power to regulate the internal market. This 'would not only be contrary to the express wording of the provisions cited above but would also be incompatible with the principle embodied in Article 3b of the EC Treaty (now article 5 EC) that the powers of the Community are limited to those specifically conferred on it.'48

It is also settled law that article 100(a) cannot be invoked where the effect on the internal market is incidental and the true motivation is some other policy objective. That principle was developed in cases where the question arose as to which of two legal bases in the directive was most appropriate.49 In this case there is no alternative to article 100(a) because article 129(4) expressly prohibits public health-inspired harmonising measures. Advocate-General Fennelly drew a comparison with the decision in the Titanium Dioxide case.'10 This had laid down prohibitions or controls on the disposal of waste and the Commission had successfully argued that the article 100(a) procedure should have been adopted rather than the environmental provision, article 130(s).''

47 ECJ 13 July 1995, Spain v Council, C-350/92, [1995[ ECR 1-1985.

48 (2000) All ER EC 769, 846 para 83.

  1. ECJ 4 October 1991, Parliament v Council, C-70/88, [1991[ ECR 1-4529 (radioactive material in food following nuclear accident); ECJ 17 March 1993, EC Commission v EU Council, C-155/91, (waste to he disposed of as close as possible to home: Waste I); ECJ 28 June 1994 European Parliament v EU Council, C-187/93 (movements of waste limited on environmental grounds: Waste II); ECJ 12 November 1996, United Kingdom v Council, C84/94 [1996] ECR 1-5755.
  2. ECJ 11 June 1991, EC Commission v EU Council, C-300/89, [1991[ ECR 12405. (20(0) All ER EC 769, 798-9, para 69.
  3. The Council had favoured article 130(s) as it felt the 'centre of gravity' was of an environmental nature. Where two bases are possible both should normally he used, but the Court held that where the procedures were incompatible, as in that case, article 100(a) should he relied upon as this guaranteed the Parliament involvement in a cooperation procedure. Incidentally it also involved qualified majority voting rather than the unanimity requirement necessary for environmental measures.

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Where article 100(a) has to be relied upon, the measure must be justifiable on internal market grounds alone.

The justifications for a directive are usually found in the recitals of its preamble. Although there is not an absolute requirement that the precise legal basis be identified it should be clear what it is.52 It is settled law, as reiterated by Advocate-General Fennelly in the instant case, that

the choice of the legal basis for a measure must be based on objective factors which are amenable to review. Those factors include in particular the aim and content of the measure.53

The Court has shown itself willing in the past to test whether the measure 'in fact pursues the objectives stated by the Community legislature' .54 Thus not only must the objective be justified but also the means adopted. In Spain v Council55 a directive extending patents on pharmaceuticals was upheld, as was a bank guarantee scheme setting down maximum levels of protection in Germany v Parliament and Council.56 However, this was only after thorough analysis of whether the measures fulfilled a need for the internal market.

The Court made it clear that it will undertake a meaningful review for otherwise judicial review of compliance would be rendered nugatory. Thus article 100(a) cannot be relied upon just because of 'a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition

52 ECJ 26 March 1987, Commission v Council, 45/86 [1987] ECR 1493.

  1. (2000) All ER EC 769, 795 para 61. See also ECJ 13 May 1997, Germany v European Parliament, C-233/94, [1997] ECR 1-2405 (Deposit Guarantees) and ECJ 4 April 2000, EC Commission v EU Council, C-269/97 (Bovine labelling).
  2. (2000) All ER EC 769, 806 para 95. See ECJ 13 July 1995, Spain v Council and ECJ 13 May 1997, Deposit Guarantees. Such concrete assessments were also made when deciding which of two legal bases should prevail: see ECJ 11 June 1991, Titaniun Dioxide and ECJ 17 March 1993 and ECJ 28 June 1994 Waste I and II.

55 ECJ 13 July 1995, Spain v Council, C-350/92, [1995] ECR 1-1985.

  1. ECJ 13 May 1997, Germany v European Parliament, (Deposit Guarantees) C-233/94, [1997] ECR I- 2405.

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liable to result therefrom'. The distortion of competition must be `appreciable' .57 As for the barriers to trade, the Advocate-General suggests that 'harmonising action should relate to national rules which have more than trivial effects on trade.'58

The Court will check that there was an internal market problem to address and that the measure's content actually addresses that internal market concern. It is not possible to identify such a problem and use that as the means to enact a law with a far broader policy agenda. How, then, is this to be distinguished from the proportionality principle? The Court's thinking on this was set out in the BSE case and approved by Advocate-General Fennelly in the instant case:

'Title principle of proportionality... requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must he had to the least onerous, and the disadvantages caused must not he disproportionate to the aims pursued.59

There is clearly a great deal of overlap between the first limb of the proportionality test and the issue of competence assessed against the content of the measure. If the content does not address the internal market issue it will fail both tests, but where it does address the internal market problem it can still be struck down for going too far. However, the boundaries will be hard to define given that broader policy can he reflected in the choice of how the internal market issue is addressed.

The ECJ's review is quite thorough, but it is significant that in the cases prior to this directive the Court has frequently upheld the EC measures. It is clear from the opinion of Advocate-General Fennelly that he thought the Court would usually he slow to interfere."' He states

57 (20(X)) All ER EC 769, 848 para 106.

58 (20(X)) All ER EC 769, 812 para 104.

  1. (2(X)0) All ER EC 769, 848 para 147: ECJ 13 November 1990 UK v Minister for Agriculture, Fisheries and Food, ex p, C-331/88,11990[ ECR 14023.

60 (20(X)) All ER EC 769, 809 para 98.

92 Yearbook of New Zealand Jurisprudence Vol 5
that the Court 'must normally accept the assessment of the legislator that the effectiveness of a measure as regards the establishment or functioning of the internal market will justify the constraints created by it.' 6' He does not consider it the court's role to substitute its own judgment or question policy initiatives.62 He concludes:

Where institutions enjoy a wide measure of discretion, particularly as to the nature and extent of the measures which they adopt the Community judicature must, when reviewing such measures restrict itself to examining whether the exercise of such discretion is vitiated by a manifest error or a misuse of powers or whether the institutions did not clearly exceed the bounds of their discretion.63

However the Advocate-General thought the Court could more easily intervene where the effects of the measure were extreme, as in the case of a prohibition. This is not to say that prohibitions could not be justified, but simply that the Court was well placed to judge their effects. In the case of the tobacco advertising directive, the Advocate-General could not see how a measure could be said to promote an internal market in tobacco advertising services by abolishing that market! The Court certainly agreed with this conclusion, but one might detect signs that it would be willing to take on a broader review of directives to ensure that they really are needed to eliminate barriers to trade or to remove genuine appreciable distortions in competition. The Court was keen to stress that it did not want judicial review of compliance to be rendered nugatory.64 However, the Court may have been playing a clever political game, seeking to signal to those national courts that were becoming nervous that it would not properly supervise the limits

  1. See Opinion of Advocate-General Leger in ECJ 13 May 1997, C-233/94, Deposit Guarantees, [1997] ECR 1-2405, 2432 at para 116. An applicant would have to prove a manifest error of assessment or a misuse of power, or show the legislature had clearly exceeded its discretion.

62 See ECJ 12 November 1996, UK v EU Council, C-84/94, [1996] ECR I5755, 5802 at para 23.

63 See ECJ 5 May 1998, United Kingdom v Commission, C-180/96, [1998] ECR 1-2265 at para 60.

64 (2000) All ER EC 769, 846 para 84.
2001 Tackling Tobacco the European Way 93
of community competence.65 This was a fairly easy case in which the Court could signal that it would be vigilant without overly affecting the practical powers of the Community. It remains to be seen whether the Court will take this review role earnestly or back off once national courts' nerves have been calmed.

It should nevertheless be stressed that protection has an important role within EC harmonising legislation. The Advocate-General was keen to point out that harmonisation does not have to be towards the lowest or even the mean of existing laws. He noted the Treaty provisions concerning the Community's duty to take into account the public interest. Restrictions may also be justified by a greater public interest in the development of the market. Thus in the Product Safely case a power permitting the Community to impose a uniform response to unsafe products was justified in the interest of broader free movement goals. In relation to tobacco it was noted that the television advertising ban facilitated free movement of television services67 and that rules on labelling° and maximum tar yields69 promoted cross-border sales of tobacco products. Moreover, where the motivation was to harmonise rules in order to reduce distortions in competition, the Advocate-General talks of there sometimes being an indissociable public interest objective and accepts that the resulting laws can be more burdensome than the sum of the former laws." This seems correct. Once intervention is justified there is no reason for it to offer a low level of protection; indeed, the Treaty's reference to a high level of protection suggests quite the contrary.

  1. See notably the decision of the German Constitutional Court on the legality of German ratification of the Maastricht Treaty in BVerfG 12 October 1993, Brunner v European Union Treaty, 1 CMLR (1994) 57.

66 Germany v Council, C-359/92, [1994) ECR 1-3681.

67 Article 13, Directive 89/552/EEC.

68 Directive 89/622/EEC.

69 Directive 90/239/EEC.

70 (2000) All ER (EC) 769, 805 para 88.
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The new tobacco advertising directive

In May 2001 the Commission issued a proposal for a new tobacco advertising directive." The Council reached political agreement on the directive on 2-3 December 2002.72 The new directive only covers the advertising of tobacco products and their promotion in fours areas, namely:

(a) in the press and other printed publications;
(a) in radio broadcasting;
(a) in information society services; and
(a) through tobacco-related sponsorship, including the free distribution of tobacco products.

This is much more limited in scope than the annulled directive. The Commission is trying to encourage broader controls, in areas the ECJ found to be outside the Commission's competence to harmonise, by following a voluntary approach. It seems necessary to strive for a complete prohibition on tobacco advertising and promotion given the finding of the World Bank that only such comprehensive bans are effective.' However, the directive represents the limit of what the Commission believes can be legally defended from constitutional challenge following the European Court's ruling.

Under this new proposed directive, advertising covers 'any form of commercial communication with the aim or direct or indirect effect of promoting a tobacco product' ,7s and sponsorship means 'any form of

  1. Proposal for a Directive of the EP and Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products: COM (2001) 0119; OJ 270/97.

72 See Council Press release on 6 December 2002.

  1. See, Proposal for a Council Recommendation on the prevention of smoking and on initiatives to improve tobacco control, COM (2002) 303.
  2. Curbing the Epidemic: Governments and Economics of Tobacco Control, (World Bank, 1999).

75 Article 2(b).
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public or private contribution to any event, activity or individual with the aim or direct or indirect effect of promoting a tobacco product' .76 Unfortunately there is no definition of what it is meant by promotion.

There has been concern that the reference to indirect effects might bring indirect advertising within the scope of the directive, although the Commission in its explanatory memorandum explicitly denied such an intention.' Most potential problems seem to be in the area of sponsorship. Use of a logo might have the effect of promoting tobacco products even if the aim could be said to be simply to acknowledge a sponsor's contribution. Indirect advertising through the use of diversification products, however, is clearly intended to be outside the scope of the directive. The distinction is clarified by recital 11 a of the latest version of the directive, which states that indirect advertising and sponsorship without cross-border effects are not covered. The intention is that indirect advertising such as by the use of diversification products is not covered by the directive and can continue to be subject to national regulation. The revised directive takes the opposite approach to the annulled tobacco advertising directive in having a free movement clause and no minimum harmonisation clause. As an ironic result, anti-tobacco groups may now be cautious about having matters included within the scope of directives for fear of ending up with imperfect rules while losing the freedom to lobby at the national level for changes.

With regard to press and printed media, article 3 states that advertising shall be limited to tobacco trade press and publications published in third countries and not principally intended for the Community market.78 This prohibition is extended to information society services." The radio broadcasting provision appears to provide for a relatively straightforward ban on advertising. Sponsorship of programmes is not permitted by undertakings whose principal activity is the manufacture or sale of tobacco products. Is there a loophole here for producers who could claim that their principal activity was something else? This might

76 Article 2(c).

77 COM (2001) 0119; OJ 270/97, para 1.

78 Article 3.

79 Article 2(d).
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occur if a tobacco firm was taken over by a larger organisation. Sponsorship is prohibited of events or activities involving or taking place in several member states or otherwise having cross-border effects. The free distribution of tobacco products at such events with the purpose of directly or indirectly promoting such products is also prohibited.
The tobacco products directive80
Legal basis

Tobacco has featured in the ECJ most recently in a challenge to the tobacco products directive. The first recital in the preamble to the directive mentions the earlier directives on labelling and tar yields and states that they should be recast in the interest of clarity. However, this directive does more than that; indeed, the next recital notes that substantial differences among member states' laws on the manufacture, presentation and sale of tobacco products impede the functioning of the internal market. Such recitals are necessary because the legal basis for the directive is article 95 (the internal market provision) and article 133 (common commercial policy) with respect to export controls. The third recital calls for the elimination of barriers to trade, but states that under certain conditions member states should be able to introduce rules to protect the health of individuals.

This directive falls midway between the annulled advertising directive (minimal harmonisation) and the earlier tobacco directives (free movement clauses) in its approach to the relationship between EC and national laws. It does have a free movement clause,' but this is subject to both a limited exception concerning the right of states to demand additional testing' and a far more significant right of states to keep or introduce more stringent rules which they deem necessary in order to protect public health, permitted 'in-so-far as such rules do not prejudice

  1. Directive 2001/37/EC of the EP and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the member states concerning the manufacture, presentation and sale of tobacco products: OJ 2001 L 194/26.

81 Article 13(1).

82 As specified in article 4.
2001 Tackling Tobacco the European Way 97
the rules laid down in [the] Directive'.83 In particular, pending the establishment of a list of common ingredients this may include prohibitions on the use of ingredients that have the effect of increasing the addictive properties of tobacco products." It will be difficult to assess when such rules will prejudice the rules laid down in the directive. The question of how much harmonisation is justified by the internal market dimension is returned to later.

Maximum tar, nicotine and carbon monoxide yields

We have already noted that the carcinogenic nature of tars' had caused the Community to set maximum tar yields. This directive reduces the maximum to 10 mg per cigarette. Nicotine had not previously been regulated at the Community level, but different national rules existed and had come to be seen as a potential barrier to trade. Therefore a new maximum limit of 1 mg per cigarette for nicotine was introduced. There were no national laws on carbon monoxide, but these were being threatened in some states and the potential barrier to trade these might create was used as justification for introducing a Community maximum of 10 mg per cigarette.

The policy of regulating the content of cigarettes is a contentious one. As previously mentioned, the suggestion that the safety of cigarettes can be regulated might encourage people to think that smoking can be something other than very risky. Also there is evidence that people change their smoking habits, for example smoking longer, taking deeper drags or covering up the holes on the filter, so the end result may be the same amount of harm. Some tobacco manufacturers also note that there is a contradiction between the policy of requiring the yields to be printed on the packet86 and then not allowing manufacturers to inform the public of what these yields mean by indications such as 'light'.

83 Article 13(2).

84 Article 13(3).

  1. Defined in article 2(2) as 'the raw anhydrous nicotine-free condensate of smoke'.
  2. Article 5(1). This information must cover at least 10% of one side of the packet.

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On the more positive side, the policy of controlling the content of tar, nicotine and carbon monoxide does at least try to reduce the harm caused by smoking. There seems to be some evidence that lower intakes of tar, in particular, reduce risks.

Measurement methods

One of the problems with the technique of controlling the content of cigarettes is that it relies upon measurement methods that are widely acknowledged to be inadequate. The relevant standards are ISO 4387 for tar, ISO 10315 for nicotine and ISO 8454 for carbon monoxide." The problem is that these rely on results from smoking machines that smoke quite differently from humans. The lack of an efficient measurement technique can undermine this approach as it allows room for tobacco manufacturers to circumvent regulation. The directive therefore includes a provision that allows for modification of the measurement methods to adapt to scientific and technical progress."

Information and common list of ingredients

In the past, tobacco manufacturers have been reluctant to disclose all the ingredients of their products, arguing that this would affect their trade secrets. The public health lobby was concerned that substances might be added to make the cigarettes more addictive or that some of the substances, perhaps added to improve the taste, might themselves be harmful. The directive introduces the legal requirement for tobacco manufacturers to list all ingredients and their quantities by brand name and type." The reasons for including the ingredients must be set out with an indication of their function and category together with toxicological data in their burnt and unburnt form. Member states are to ensure dissemination of this information to consumers, whilst taking due account of protecting any information on specific formulae which constitutes a trade secret.9" Member states can also require tobacco

  1. Article 4(1). The accuracy of tar and nicotine indications on packets is to be verified in accordance with ISO 8243.

88 Article 9(a).

89 Article 6(1).

90 Article 6(2).
2001 Tackling Tobacco the European Way 99
manufacturers and importers to carry out tests to assess the yield of substances other than tar, nicotine and carbon monoxide.9' It seems clear that the end result of this may be either the prohibition of certain additives or the regulation of their content. Tar was the first substance in tobacco whose content was controlled by the European legislator, and carbon monoxide is unlikely to be the last. This directive has added nicotine and carbon monoxide, and through these information rules it has laid the basis for other constituents potentially to follow.

Oral tobacco

Oral tobacco is banned." This is subject to a special concession for Sweden negotiated in their Accession Treaty.


In addition to the tar, nicotine and carbon monoxide yields being placed on the product, the directive also follows the pattern of requiring health warnings." Two such warnings must appear. One must be either `Smoking kills/Smoking can kill' or 'Smoking seriously harms you and others around you'; the other must be chosen from a list of fourteen set out in an annex. All must be rotated in such a way as to guarantee their regular appearance and there are detailed rules on how much of the surface they should cover and the form they should take. The size of these warnings has been significantly increased, with the first warning having to cover 30-35% of one side of the packet and the second 40-50% of the other, depending upon the number of official languages of the state in question. The warning must be in the official language(s) of the state where the product is marketed."

These warning have doubtless assisted in raising awareness of the risks associated with tobacco use. On the other hand there is a risk that such warnings have become so familiar that few people pay much attention to them. There is also an in-built incentive for tobacco manufacturers

91 Article 4(3).

92 Article 8.

93 Article 5.

94 Article 5(6)(e).

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to seek ways to limit their impact.95 Indeed one might argue that a more effective way might be to eliminate distinctive packaging. For instance, the law might require all cigarettes to be sold in uniform tombstone-style packets. This is not contemplated in the present directive.96

One technique that has been trialled in Canada with some apparent success is the use of photographs on packets to show the health consequences of smoking.97 The directive allows member states to require additional warnings in the form of colour photographs or other illustrations and also requires the Commission to adopt rules for their use by 31 December 2002.98

Product descriptions

From 30 September 2003 texts, names, trade marks and figurative or other signs which suggest a particular tobacco product is less harmful than others are all prohibited.99 This will affect the use of names such as 'light' or 'mild', and will have been the subject of a challenge before the ECJ by Japan Tobacco because their leading brand 'Mild 7' will be

95 Hanson and Kysar, supra n 8. This leads Hanson to argue for a no-fault liability regime to give manufacturers incentives to reduce harm: see Hanson, J and Logue, K 'The costs of cigarettes: The economic case for ex post incentive-based regulation' (1998) 107 Yale Law Journal 1163.

  1. Although I wondered whether it was in contemplation of such a move that a recent cigarette campaign featured a black and white outline of the brand design and asked consumers to fill in the colours that were usually there.
  2. A report by Liefeld, J The Relative Importance of Size, Content and Pictures on Cigarette Package Warnings (1999) found that warnings with pictures were 60% more likely to cause smokers to stop/not start smoking. Report available on Health Canada website at < tobacco/pdf/liefeld-eng.pdf> . For a discussion of whether New Zealand should follow the Canadian lead, see Laugesen, M (ed.) Health or Tobacco: an End to Tobacco Advertising and Promotion (Wellington: Department of Health, 1989).

98 Article 5(3).

99 Article 7.

  1. The challenge was launched on 20 September 2001 as the company believes the banning of the term 'mild' infringes their intellectual property rights: see their press release at <> .

2001 Tackling Tobacco the European Way 101
seriously affected."x) The reasoning behind this move is a desire not to give the impression that some types of cigarettes are safer, for fear that some potential quitters will instead simply substitute an apparently safer cigarette which still carries a serious health risk. Indeed smokers of light cigarettes might not even reduce their total intake of toxic substances. Nevertheless the tobacco companies note an apparent inconsistency when they comment that such a stance lies uneasily with the other policies of reducing yields of tar, nicotine and carbon monoxide and requiring their disclosure.
Possible challenges to the tobacco directives Tobacco products directive

The tobacco products directive has been the subject of very recent litigation before the EC.P°1 on a preliminary ruling from the English High Court. The ECJ has been asked the following questions:

1. Is Directive 2001/37/ECI02 invalid, in whole or in part, by reason of:

  1. the inadequacy of Articles 95 and/or 133 EC as a legal basis;
  2. the use of Articles 95 and 133 EC as a dual legal basis;
  3. infringement of the principle of proportionality;
  4. infringement of Article 295 EC, the fundamental right to property and/or Article 20 of TRIPs;

e.infringement of Article 253 EC and/or the duty to give reasons;

  1. infringement of the principle of subsidiarity;
  2. misuse of powers?

101 R v Secretary of State for Health, ex parte British American Tobacco and

Imperial Tobacco, supported by Japan Tobacco, C- 491/01.

102 Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products — Commission statement: OJ L 194, 18/07/ 2001, 26.

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2. If it is valid, does Article 7 of Directive 2001/37/EC of the Parliament and Council apply only to tobacco products marketed within the European Community, or does it apply also to tobacco products packaged within the European Community for export to third countries?

Japan Tobacco is also challenging the directive before the European Court of Justice.

Although there were many potential grounds of challenge, the main focus was on whether article 95 can be the proper basis for such a directive and whether such rules can extend to exports. This paper will limit its comments to that aspect of the decision."

Advocate-General Geelhoed delivered his opinion in this case on 10 September 2002." He upheld the validity of the directive, although he found that article 7 concerning descriptors such as 'mild' did not apply to exports. The Court published its judgment on 10 December 2002, and reached the same conclusions as the Advocate-General.' This is clearly a judgment that will be broadly welcomed by the anti-tobacco lobby. Although there has been little time to digest the decision, some discussion of it is necessary because of its importance.'

The tobacco companies argued that there is no internal market justification for the directive, and that it was in reality a public health measure." Furthermore there was no need to further refine the tar

103 The Court also found that article 133 dealing with the development of a common commercial policy was not applicable but that the use of this dual basis did not invalidate the directive.

  1. R v Secretary of State for Health, ex pane British American Tobacco and Imperial Tobacco, supported by Japan Tobacco, C- 491/01, opinion of Advocate-General Geelhoed, 10 September 2002.
  2. R v Secretary of State for Health, ex parte British American Tobacco and Imperial Tobacco, supported by Japan Tobacco, C- 491/01, judgment of the Court, 10 December 2002.
  3. Some sense of the debates can also be gleaned in advance from a law review article written by a lawyer working for BAT and from the websites of British American Tobacco and Imperial Tobacco. See Crosby, S 'The new tobacco control directive: An illiberal and illegal disdain for the law' (2002) 27 Eur L Rev 177, <> and <> .

2001 Tackling Tobacco the European Way 103
yields from an internal market perspective as these had already been harmonised." Japan Tobacco made a special plea that there was no evidence that barriers to trade would have emerged if article 7 on descriptors had not been adopted." The industry was supported by some governments. For instance, the German government thought the ban on manufacture amounted to a ban on exports, which was not justified, because any threat to the internal market came from cigarettes imported illegally from non-member states.""

The Court, however, held that intra-state trade was a relatively large part of the cigarette trade and that requirements relating to designation, composition or packaging could constitute obstacles to the free movement of goods.'" The Court took a fairly flexible approach to assessing when a barrier to trade might be a potential problem justifying legislation. For example, it had been argued that the controls on nicotine levels introduced by some states did not create barriers because the link between tar and nicotine meant that any cigarettes complying with the harmonised tar rules would also comply with the nicotine rules. The Court nevertheless took account of the possibility that states could choose in the future to reduce the permitted nicotine levels.112 As regards descriptors it was sufficient that one state had adopted rules on the matter.'" It also gave the Community a free hand to modernise its laws. This was needed if the rules were not to become outdated because the national legislatures would have also lost their powers with regard to harmonised rules. Community revision did not have to be justified solely by reference to progress in scientific knowledge, but could take

107 Supra n 105, para 43.

108 Ibid, para 44.

109 Ibid, para 46.

110 Ibid, paras 47-50.

111 Ibid, para 64.

112 Ibid, para 70.

113 Ibid, para 73.
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account of the increased importance of social and political aspects of the anti-smoking campaign.14

The Court was also willing to accept that the ban on manufacture of products not complying with the directive could be justified even though it amounted to a ban on exports. It noted that the cigarette market lent itself to unlawful trade and that the risk of fraud would increase if cigarettes could be manufactured in the Community that could not be marketed there. The export ban therefore prevents the internal market rules from being undermined. The Court shrewdly argued that this risk should not be assessed solely by the present situation: an increased market in such products might develop if consumers sought out products they were accustomed to, but which could no longer be bought within the Community.'" The only crumb of comfort for the industry was the Court's construction of article 7 concerning descriptors. The Court found it did not apply to exports, and clearly thought the risk posed by re-importation of packets carrying banned terms such as 'mild' was less serious than the sale of cigarettes with prohibited contents.16

This decision shows that a lot of tobacco control legislation can be brought within article 95. All that needs to be shown is that some elements of the product composition or presentation are dealt with differently or might in the future be treated differently in the member states and this can be used as a gateway through which rules having a protective effect can be introduced. Once there is the power to act, the Commission can take a high level of protection, and that must include the right to improve that protection over time. The irony has not been missed that the directive, by requiring warnings to be in the language of the state of retail sale, actually creates barriers to trade."7 However, given that member states will all have some sort of labelling and warning requirements, it must help the internal market for there to be some standardisation of the information obligations.

114 Ibid, para 80.

115 Ibid, para 89.

116 Ibid, para 215.

117 Crosby (supra n 108) 181.
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The Community's competence exists even if all the actors in the market claim that they would be happier to work with the barriers. It must be frustrating for the industry to see an internal market provision, that is intended to promote trade, being used to introduce measures which, by raising the level of protection, actually threaten the product. But this is possible under EC law. There are many reasons why businesses would not want trade to be liberalised. For instance, they might be happy for national rules to serve as anti-competitive market segmentation devices. Thus the desire of the industry to be regulated should not be relevant. Ironically, their argument that the different rules do not create barriers might be used against them, to support arguments that national governments should have freedom to legislate for their own health concerns regarding tobacco.

There was great pressure on the Court to strike down the export ban. The industry argued that the ban would lead to the loss of many jobs as manufacturing plants were relocated outside the Community. The Court resisted on the basis that striking down the export ban might undermine the effectiveness of the directive's provisions by encouraging the development of an illicit trade. Such efficiency arguments are no doubt well-founded and safe grounds upon which to uphold the directive. One might hope that the Judges were also pleased to support the ban as part of a broader Community ethical policy of seeking to protect citizens outside Europe from being harmed by products considered too dangerous to be sold in the EU. This policy is also reflected in the revised general product safety directive,"8 which, in the limited circumstances where the Commission can pass a decision on the safety of products, permits this to be extended to exports."9 Nevertheless, the decision underlines the need to resolve the question of international standards through the WHO Framework Convention in a way which allows states to promote health without unfairly threatening EU jobs.

One might predict that the unwillingness of the ECJ to overturn the directive will cause the tobacco companies to seek out new fora in

118 Directive 2001/95/EC of the EP and of the Council of 3 December 2001 on

general product safety: OJ 2002 L 11/4.

119 Article 13(3).
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which to challenge the regulations. It will also be interesting to see how this decision impacts on the industry's tactics in relation to the revised tobacco advertising directive, although no doubt the earlier judgment annulling the first directive will be the main point of reference.

Tobacco advertising directive

David Byrne, the EC Commissioner in charge of public health matters, has complimented the ECJ on the guidance it gave on the scope of Community powers in relation to tobacco advertising and has gone on to praise his staff for quickly developing a revised proposal on tobacco advertising that seeks to follow the court's reasoning.'" The types of media that the revised proposal regulates — print, radio, information society services and sponsorship having a cross-border effect — can all cross borders easily and hence different rules on advertising might hinder their free circulation. In these circumstances prohibitions, although limiting the market for tobacco advertising, can be justified because of the greater gain to the internal market from the circulation of the other products or services. Indeed, the ECJ held that certain forms of advertising could be prohibited'2' and specifically compared periodicals, magazines and newspapers to the position with regard to television advertising of tobacco, which was already banned under EU law .'22 The Advocate-General had drawn similar lines and indeed had suggested that bans in relation to services, such as sponsorship and radio, were easier to justify than for goods.I2' In relation to goods he said a prohibition was most appropriate for goods that did not serve exclusively as media for tobacco advertising. Newspapers and magazines were mentioned as examples where a ban might be justified by internal market arguments.'24 It makes sense to focus on cross-border

  1. ' The European Dimension of tobacco control legislation' Speech to Office of Tobacco Control Conference, Dublin 1 November 2001.

121 Supra n 105, para 117.

122 Ibid, para 97.

123 Supra n 104, para 106.

124 Ibid, para 107.
2001 Tackling Tobacco the European Way 107
advertising not only for internal market reasons, but also because these media can be ways to undermine national advertising controls. Thus there would seem to be a very good chance that a tobacco advertising directive drafted along the lines of the proposal would fend off any challenge based on its legal basis as an internal market measure.

The discussion has centred upon whether the measures have an internal market character, but tobacco companies have a few more cards up their sleeves based upon appeals to human rights law concerning in particular their freedom of expression in relation to advertising and their right to property. At present the tobacco companies are content to argue that the debate is a question of whether tobacco law should be determined in Brussels or at the national level. However, behind this is an underlying unease with the content of European regulation. The debate about whether advertising can be regulated for public health reasons at the expense of commercial free speech is an old one.' Crosby continues this campaign to emancipate the citizen by chiding the tobacco products directive for patronising the consumer by banning descriptors such as 'mild' or 'light' despite health warnings next to them, for requiring warnings to be up to ten times bigger than previously and for limiting the range of products available.' These issues could be addressed by the ECJ, but one suspects that they would prefer to stick to the constitutional basis of review. Even though the European Convention on Human Rights is part of the European legal order,' a full exploration of these issues will probably have to await appeals to the European Court of Human Rights in Strasbourg. Such appeals could take the form of challenges both to European and national legislation,

125 See Skouris, W (ed.)Advertising and Constitutional Rights in Europe (Baden

Baden: Nomos, 1994).

Ibid at 118.
Although not bound to follow the Convention the court has said it 'has special significance', Case C-260.89 ERT [19991] ECR 1-2925. Article 6(2) of the Treaty on European Union now provides: 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

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raising a whole new set of issues. It seems tobacco law will be before the courts for some years to come.

The relationship between national, European and international law

If the EC is to develop an anti-tobacco strategy that includes legislation it would be better for this to be developed under a separate independent power to harmonise legislation in this area rather than relying on the internal market provision. It might even be better to make tobacco the subject of a separate Treaty provision. This would prevent the tobacco issue from becoming embroiled in broader debates concerning whether the EU should have competence to legislate on all public health matters. At the very least it should be possible to develop a coherent tobacco control policy. This should mean that, once a matter like tobacco content or labelling is within the EC' s competence, the final rules should be broader than those needed for solely internal market concerns. This is very nearly the position with the dictate in article 95(3) to take as a base a high level of protection, but measures are still subject to a proportionality test and must still show that they are connected to the internal market dimension.

It is possible to argue that the role of Europe should be limited to that of a co-ordinator and promoter of best practice as currently envisaged by article 152 (formerly article 129))" However, given that some aspects of tobacco regulation can be justified under the internal market powers, it would seem better to allow for the development of a coherent European set of regulations. This can also be justified on the basis of ensuring that European citizens as they circulate within the Community

128 Indeed the Final Report of European Convention Working Group V Complementary Competencies favours a clearer delimitation of measures, renamed 'supporting measures', in areas such as public health so that it is emphasised that member states have not transferred competence in those areas and that harmonised legislation only applies if the principal objectives, content and intended effects of such measures relate to Treaty articles on the internal market: see CONV 375/1/02 REV 1. Although the report's call for greater clarity as to the Community's competencies is in tune with this paper, the drawing of those boundaries seems to be much narrower than advocated herein.
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are equally protected and not tempted by advertising practices, cigarettes with stronger tar content or seductive additives in other states. In the end whether one believes the EU should be involved in such developments will turn on one's view of the role of Europe. Those who favour the EU being simply an institution to promote an internal market will oppose such measures. Those who support such a role for the EU will most likely support a vision of the EU concerned with promoting social welfare and thereby adding to the value of European citizenship.

There must still be a role for national governments to protect their citizens and to adapt to local conditions. Ideally the EU directives would be minimal harmonisation directives providing a baseline for regulation that member states could improve upon. However, the ECJ seems to be demanding free movement clauses as evidence that these directives truly are internal market measures. These clauses prevent member states from using national laws that require different standards as a basis for objecting to the import of products that comply with directives. Therefore there is some concern in the anti-tobacco world that poor-quality legislation at the EU might be dangerous, as it would prevent national governments from addressing issues. It is thus important that the EU measures are strict, i.e. prohibitions, and that their scope is clearly delimited. For instance, there was concern that the proposed advertising directive might inadvertently allow indirect advertising and thereby prevent member states from introducing or retaining more effective controls. Such fears were unfounded in this instance, but it shows the need to be vigilant lest well-intentioned attempts by the EU to regulate tobacco actually do more harm by stifling effective national initiatives.

In the future the debate between national and EU regulation looks set to have an added international dimension as the WHO is working on a framework convention on tobacco.'29 Many of the elements found in EU regulation have their counterparts in the framework conventions. The EU has been mandated to negotiate for the member states. Article 152(3) provides that the Community and member states shall foster

129 Latest draft of 25 June 2002 of the Fifth Session of the Intergovernmental

Negotiation Body on the WHO Framework Convention on Tobacco Control is available on WHO website at <> .
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co-operation with third countries and the competent international organisations in the sphere of public health. It is possible that the Commission might, if it negotiates a position on the framework convention and can persuade the states to agree to this, circumvent some of the legal base challenges, because member states will be under a separate international obligation. However, the wording of the convention is likely to be more vague than the directives and there may be a complication if it is argued that the Commission has exceeded its power to sign international agreements in article 300 of the Treaty by agreeing to measures that cannot be supported by the existing Treaty.

The future

Although some tobacco litigation continues in Europe there are few signs that such litigation will threaten the tobacco industry to anything like the same extent as in the US. The EU seems determined to regulate the composition of tobacco products and to control their labelling and presentation as well as to restrict the scope for advertising. It also wants to set standards for the rest of the world through export bans of products that do not meet European content standards and to play a full part in bringing the WHO framework convention into being. For those who would like to see tobacco use reduced there are obvious limitations to these efforts. Not least is the inherent problem that regulation will not make tobacco products safe. Warnings and information may go unheeded. Advertising bans may be ineffective if they are not exhaustive. Yet these efforts seem better than nothing.

However, what must be retained is the ability to innovate in regulations. Industry can develop techniques for minimising the impact of static regulation, and as trends in production and marketing change, regulatory techniques need to be adapted or new approaches developed. Moreover, Europe needs to have the ability to adapt to the divergent traditions of its fifteen constituent states and also use them as laboratories to test regulatory techniques. A line needs to be drawn to separate those European laws that must be fully harmonised from areas in which legislative freedom can be left to the member states. The tobacco companies' insistence that much of the harmonisation is unnecessary should suggest that there can safely be considerable room for national diversity above a baseline level set by European regulation.
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We might predict that we are at the first stage of legal challenges to tobacco regulation. This stage currently involves primarily challenges to the constitutional legality of the EU regulating tobacco. As the EU has to rely on internal market provisions, the ECJ has set limits on what is permitted. However, given that many of the matters discussed can be shown to have an effect on the internal market, and given also the Treaty requirement that legislation must provide a high level of protection, one might hope that the present and proposed directives will largely survive judicial scrutiny. Nevertheless, it would be desirable for such legislation to be given a securer basis in the Treaty.

Future challenges may switch venue to the European Court of Human Rights and invoke human rights law, such as the right to free speech. These challenges could apply equally national legislation such as the French Loi Evin which has banned tobacco advertising since 1973. Interestingly, tobacco companies have been slow to use human rights law to challenge such national laws. Perhaps the companies are reluctant to face the potential public relations backlash if they seek to overturn democratically enacted laws. The remoteness of the EU from its citizens and its obscure democratic structures may make its laws a more appealing target. Any positive results from the tobacco companies' perspective might then be used as precedent against national laws.

It is frustrating to see the tobacco industry use these legal challenges. The industry clearly feels unloved by many regulators and unable to communicate with them properly. Perhaps regulators should be more open about their ultimate objectives.'30 However, whilst tobacco remains a dangerous product that is permitted to be sold only because it gained its place in our culture before its dangers were known, tobacco companies must realise that the law will be attracted to tobacco like a magnet. From now on law and tobacco will be inextricably linked. If tobacco companies frustrate Europe's attempts to regulate the industry they are more likely to see law pop up in the form of liability claims. They would probably prefer the stability of regulation. It is to be hoped that Europe can find a way to come to a compromise so that only those adults who want to take the risk of smoking do so and they do so in a the way which causes least harm to themselves and others.

130 This cannot be said of the WHO, which on 10 March 2000 launched an initiative for Un monde sans tabac.

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