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ASH Press release: France commits to go ahead with standardised ‘plain’ cigarette packs as Big Tobacco’s UK legal challenge draws to a close

Friday, December 18th, 2015

London - The tobacco industry’s challenge to the UK’s standardised tobacco packaging regulations is drawing to a close today and a ruling is expected to be made by the judge, the Hon. Mr Justice Green, in the New Year.

The tobacco industry’s challenge to the UK’s standardised tobacco packaging regulations is drawing to a close today and a ruling is expected to be made by the judge, the Hon. Mr Justice Green, in the New Year. This follows the commitment by the French parliament yesterday to proceed with standardised packaging, and the announcement that the Philip Morris challenge to the Australian government on tobacco plain packaging under a 1993 investment treaty between Australia and Hong Kong has failed. [1]

Standardised ‘plain’ cigarette packaging is now spreading round the world, starting with Australia, followed by the UK and Ireland, with New Zealand, Norway, Hungary, Sweden, Finland, Turkey, Bulgaria and Canada following on behind. Australia went first, implementing in 2012, the UK, Ireland and France will be next from 20th May 2016.

The Regulations, which gave the Health Secretary the power to regulate pack design, were passed by an overwhelming majority on free votes in both the House of Commons and in the House of Lords. [2]

The four major manufacturers (British American Tobacco, Imperial Tobacco Limited, Japan Tobacco International and Philip Morris International) asserted in their legal challenge that the standardised packaging regulations are unlawful, disproportionate and infringe their intellectual property rights. [3] The tobacco companies also claim that this measure breaches their human rights as set out in the European Convention [4], and that if it goes ahead they should be due multi-billion pound compensation.[5] A lawyer for Japan Tobacco speaking in court gave the example of the compensation given to slave owners when slavery was abolished. However, as the judge pointed out this was a decision made by parliament in its own self-interest, not by the courts. [6]

ASH, with pro bono support from lawyers, intervened in the case in support of the Government’s defence of the regulations. [7] The Government case, supported by ASH is that strict regulation of a product which kills half its users, and is highly addictive, is proportionate and in the public interest, and that compensation is not due the industry.

Deborah Arnott, Chief Executive of health charity ASH said:

"The evidence for and against the introduction of standardised ‘plain’ cigarette packs has been set out at great length and will be weighed in the balance by the judge. In our opinion there is no contest. The tobacco companies struggled to show that the interference with their ‘human rights’ wasn’t justified on public health grounds. The low point was their argument that multi-billion pound compensation should be due if they have to get rid of their glitzy packaging, because even slave owners were compensated when slavery was abolished.”

The Barrister acting for ASH, Mr Peter Oliver, drew the courts attention to the fact that 680,000 smokers are lost to the industry every year [8], either by dying or quitting. And that since two thirds of people start smoking as minors with less than 1 in five starting after the age of twenty, the industry has to attract children and young people to replace those it loses, as mature adults are highly unlikely to start such a dangerous and expensive habit.

Mr Oliver went on to argue that cigarette packaging is essentially a form of advertising and promotion which is exploited to the full by the industry. He showed the court an example of a shocking pink Pall Mall pack and quoted from a CRUK video of young girls describing their feelings about it, where one girl says ‘I think this one looks quite pretty, and the other responds ‘pink, pink, pink!’. [9] This was to the point as earlier in the case Dinah Rose QC had said that for the Government to identify pink packaging as designed to appeal to young women was ‘gender stereotyping’.

A separate challenge on the EU Tobacco Products Directive (TPD), with respect to standardised packaging, regulation of e-cigarettes and the ban on menthol flavouring is under consideration by the European Court of Justice and the Advocate General’s Opinion is due on 23rdDecember, with the final judgement expected in the Spring, before the TPD is implemented in May.


Notes and Links

[1] Australian government wins plain packaging case against Philip Morris Asia. Sydney Morning Herald, 18 Dec.2015
France votes for plain cigarette packaging from 2016 The Guardian, 18/12/15

[2] The Standardised Packaging of Tobacco Products Regulations 2015: http://www.legislation.gov.uk/ukdsi/2015/9780111129876/pdfs/ukdsi_9780111129876_en.pdf

On 11 Mar 2015 367 MPs voted in favour of the Standardised Packaging of Tobacco Products Regulations 2015 with just 113 against. In the Lords on 16 March the regulations passed without a division.

[3] Royal Courts of Justice Cause List
CO/2322/2015 The Queen on the application of British American Tobacco Uk Limited v Secretary Of State For Health
CO/2323/2015 The Queen on the application of Philiip Morris Brands Sarl v Secretary Of State For Health
CO/2352/2015 The Queen on the application of JT International Sa v Secretary Of State For Health
CO/2601/2015 The Queen on the application of Imperial Tobacco Limited v Secretary Of State For Health

[4] European Convention on Human Rights http://www.echr.coe.int/Documents/Convention_ENG.pdf

[5] Bingham J. Tobacco companies prepare multi-billion compensation claims over UK plain packaging Daily Telegraph 21 May 2015

[6] Thursday 10th December. Royal Court of Justice Court 76.

MR ANDERSON: However strong the objective for taking property away, you will normally compensate. Your Lordship will remember the slave-owners were compensated when slavery was abolished, when hand-guns --

MR JUSTICE GREEN: Only by Parliament, not by the courts.

MR ANDERSON: There we are.

MR JUSTICE GREEN: There were a lot of self-interested Parliamentarians who made a lot of money out of the 1837 Act.

[7] Acting for ASH on a pro bono basis are: solicitors from Leigh Day and barristers Peter Oliver and Ligia Osepciu of Monckton Chambers.

[8] West R. Brown J. ‘The Smoking Pipe’: A model of the annual inflow and outflow of cigarette smokers in England in 2014. Smoking in Britain. September 2015.

[9] Cancer Research UK. Setting the standard for plain cigarette packaging

Media contacts: Deborah Arnott 020 7404 0242 (w) or 07976 935 987 (m), Ian Willmore (who attended the High Court hearings) 07887 641344 (m)

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