This is a guest from trade lawyer Adarsh Ramanujan
Last week, the European Court of Justice, issued its judgment (here, here, and here) has dismissed the action initiated by Poland against the EU’s Directive 2014/40/EU concerning tobacco products, and upheld the validity of said Directive.
I don’t intend to get into EU law, the basis on the litigation and so forth. On the face of it, the measure at issue before the ECJ and those at issue in the WTO do not appear to be the same, though there is clearly some overlap. One of the questions posed before the ECJ was the validity of Article 13 of the EU Directive which prohibited the inclusion of certain elements / features on the labelling / packaging etc., even if they were factually accurate and even if such element or feature is part of a trademark.
This Article 13 provision was questioned as being in violation of the freedom of expression, including the freedom to express commercial information through labelling, advertising etc. Such a measure could be justified only if it is in compliance with the principle of proportionality, is permissible only if it is necessary and actually meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (paragraph 149 of ECJ judgment). While it is not my intent to state that these standards are identical to what is employed at the WTO level, the similarity cannot be ignored for sure.
When applying this standard to Article 13 of the EU Directive, the ECJ judgment records the following:
152 …Given that it is undisputed that tobacco consumption and exposure to tobacco smoke are causes of death, disease and disability, the prohibition laid down in Article 13(1) of Directive 2014/40 contributes to the achievement of that objective in that it is intended to prevent the promotion of tobacco products and incitements to use them.
156 It must, however, be stated that human health protection — in an area characterised by the proven harmfulness of tobacco consumption, by the addictive effects of tobacco and by the incidence of serious diseases caused by the compounds those products contain that are pharmacologically active, toxic, mutagenic and carcinogenic — outweighs the interests put forward by the claimants in the main proceedings.
157 Indeed, as is apparent from the second sentence of Article 35 of the Charter and Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU, a high level of human health protection must be ensured in the definition and implementation of all the European Union’s policies and activities.
158 The Court finds, in the light of the foregoing, (i) that the prohibition laid down in Article 13(1) of Directive 2014/40 is such as to protect consumers against the risks associated with tobacco use, as follows from paragraph 152 of this judgment, and (ii) that that prohibition does not go beyond what is necessary in order to achieve the objective pursued.
159 On this point, the Court cannot accept the argument that the prohibition concerned is not necessary because consumer protection is already adequately ensured by the mandatory health warnings mentioning the risks associated with tobacco use. In fact, awareness of those risks may, on the contrary, be diminished by information that might suggest that the product concerned is less harmful or is beneficial in some respects.
160 Nor can the Court accept the argument that the objective pursued could be achieved by other, less restrictive measures, such as regulating the use of the elements and features referred to in Article 13 of Directive 2014/40, instead of prohibiting them, or adding certain supplementary health warnings. Such measures would not be as effective for ensuring the protection of consumers’ health, since the elements and features referred to in Article 13 are, by their very nature, likely to encourage smoking (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 140). It cannot be accepted that those elements and features may be included for the purpose of giving consumers clear and precise information, inasmuch as they are intended more to exploit the vulnerability of consumers of tobacco products who, because of their nicotine dependence, are particularly receptive to any element suggesting there may be some kind of benefit linked to tobacco consumption, in order to vindicate or reduce the risks associated with their habits.
161 In those circumstances, it must be held that, in prohibiting the placing, on the labelling of unit packets and on the outside packaging, as well as on the tobacco product itself, of the elements and features referred to in Article 13(1) of Directive 2014/40, even when they include factually accurate information, the EU legislature did not fail to strike a fair balance between the requirements of the protection of the freedom of expression and information and those of human health protection.
Firstly, my reading of this judgment is that given, (a) the relatively high importance given to health considerations, and (b) the otherwise proven harmfulness of tobacco products, the fact that Article 13 was “intended” to prevent the promotion of tobacco products and incitements to use them, was sufficient enough for the provision to be necessary and proportional.
Secondly, my reading of the judgment is also that while there may be other measures that contribute to the same objective as well, Article 13 of the EU Directive is designed to complement them. The ECJ appears to be take note of the fact that the effectiveness of even large health warnings may get diluted by information printed on the labelling / packaging etc., especially in the case of existing users who are nicotine dependant. The statements in paragraph 160, extracted above, clearly expresses the sentiments of the ECJ.
