Poland objected to the proposed ban on the sale of menthol cigarettes, due to come into force in 2020, because this type of cigarette has been on the Polish market since 1953 and could be regarded as a traditional product. Poland is one of the biggest consumers of menthol cigarettes, which account for more than 20 per cent of the local market. Menthol cigarettes are said to be manufactured in six factories in Poland, with a large share for exportation, which implies that outlawing the sale of such products would have serious consequences for local economy.
The extensive standardisation of packaging, the future EU-wide prohibition on menthol cigarettes and the special rules for e-cigarettes are lawful
It was based on both legal and economic arguments with the Court of Justice of the European Union against the EU’s new Tobacco Products Directive (TPD). Side by side with the Polish Government were the Ireland, the French Republic, the United Kingdom of Great Britain and Northern Ireland.
Advocate General Kokott stated that the special rules for e-cigarettes differ appreciably from the rules for conventional tobacco products: notification with a six-month standstill period, specific warnings, a maximum nicotine content of 20 mg/ml, a leaflet requirement, a separate prohibition on advertising and sponsorship and annual reporting obligations. The Advocate General judges that those rules are “moderate both in comparison with the rules for conventional tobacco products and by international standards, and are ultimately not disproportionate”.
In virtue of the precautionary principle, the TPD should remain applicable to e-cigarette products, she declared. Risks to human health and, in the case of adolescents and young adults, the risk to develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption were the main arguments for a product that is “still relatively little known”.
Two other challenges are pending justice decisions:
- Totally Wicked, challenging the legality of Article 20 which holds provisions on e-cigarettes.
- Philip Morris International (PMI) and British American Tobacco (BAT) brought two separate claims against the TPD, alleging that the TPD is without a valid legal basis, that elements are disproportionate and do not comply with the principle of subsidiarity. Japan Tobacco International (JTI) and Imperial Tobacco are supporting the claims as “interested parties”.
Based on the press release where the terms “subsidiarity principle” and “disproportionate” are employed abundantly, the latter claim is reviewed in a similar (negative) way by the Advocate General. The court still has to deliver a final ruling, based on the legal aforementioned opinions.
The last the Global Forum on Nicotine, a yearly conference that is recognized for the quality of its content took place in Warsaw, Poland, in June 2015. The next event will be held one month ahead of the implementation of the EU TPD that will probably arouse interesting discussions if the EU Court of Justice follows Advocate General’s opinions.
The fact that it has come to this is just sad!