This is a guest from trade lawyer Adarsh Ramanujan
Continuing from my earlier post on the recent ECJ judgements relating to the EU Directive on tobacco products, one part of the dispute involved Poland’s challenge that the EU-wide ban on cigarettes with characteristic flavouring, including menthol, was not permissible. Although the legal basis of the claim raised by Poland has no relationship with WTO law in any sense, I found some of the observations of the ECJ worth sharing. This is particularly because the underlying factual issues that govern the regulation of tobacco products or even the outright ban on tobacco products, always appear to be disputed (is scientific consensus really possible?). The ECJ’s way of handling this was interesting to me.
Right off the bat, the ECJ judgment observes this:
52. Next, even if the claim that menthol is not as attractive to young people as other flavourings were true, which the defendants moreover deny, that claim is not conclusive as such. It is sufficient to point out that the attractiveness of the products at issue cannot be assessed in the light solely of the tastes and habits of a single group of consumers disregarding the others.
53. Lastly, as regards the claim that the qualities of mentholated tobacco products in terms of taste are different from those of the other tobacco products having a charactering flavour in that the former, unlike the latter, do not completely eliminate the taste and smell of tobacco, it must be held that that claim is not sufficiently substantiated. Although it cannot be excluded that certain flavourings alter to varying degrees the taste or smell of tobacco, the fact remains that all flavourings, including menthol, mask or reduce tobacco smoke’s harshness and contribute to promoting and sustaining tobacco use, as has been noted in paragraph 44 above.
Second, Poland argued that the ban breaches the principle of ‘proportionality’ - acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (paragraph 78 of the ECJ judgment). Sounds familiar?
When dealing with this question, the ECJ broke down its analysis into three parts – (i) whether it is appropriate for the objective pursed, (ii) whether it is necessary, and (iii) whether this is the least onerous mechanism.
On the question of whether it is appropriate for the objective pursued, the standard applied by the ECJ is more in a negative sense – unless the measure is manifestly inappropriate, the EU has a sufficiently wide margin of discretion. Here is what the ECJ had to say on this point:
82. Secondly, that prohibition is also appropriate for ensuring a high level of protection of human health, especially for young people. It is not disputed that certain flavourings are particularly attractive to them and that they facilitate initiation of tobacco consumption.
83. In addition, the argument that the prohibition on the placing on the market of menthol-containing tobacco products does not contribute to the reduction in the number of smokers, even if proved, cannot succeed either, since it disregards the preventive function of that prohibition, which is to reduce the initiation of tobacco consumption.
84. As regards, lastly, the argument that the prohibition of characterising flavours will lead to the rapid growth in the illicit sale of flavoured tobacco products, it must be found that that argument does not take sufficient account of the mechanisms introduced by Directive 2014/40, in particular Articles 15 and 16 thereof, in order to deal with that risk.
85. Accordingly, the prohibition in question cannot be regarded as manifestly inappropriate for achieving the objective of facilitating the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people.
On the question of whether the measure is ‘necessary’ and the least onerous of the available options, the following analyses caught my eye:
90 With regard, in the second place, to whether that prohibition is necessary, it should be borne in mind, first, that, as has already been stated in paragraph 44 above, the Partial Guidelines for Implementation of Articles 9 and 10 of the [World Health Organisation Framework Convention on Tobacco Control or] FCTC recommend that the Parties to the FCTC, inter alia, prohibit ingredients, such as menthol, that may be used to increase palatability in tobacco products. In addition, in accordance with section 1.1 of those partial guidelines, the Parties to that framework convention are encouraged to implement measures beyond those recommended by the guidelines.
91 It was thus lawful for the EU legislature — taking account of those recommendations and in the exercise of its broad discretion — to impose a prohibition on all characterising flavours.
92 Secondly, as regards the less restrictive measures advocated by the Republic of Poland, they do not appear to be equally suitable for achieving the objective pursued.
93 Raising — solely in respect of tobacco products with a characterising flavour — the age limit from which their consumption is permitted is unlikely to reduce the attractiveness of those products and thus prevent persons above that age from starting smoking. In addition, any prohibition on sale resulting from an increase in that age limit can, in any event, be easily circumvented when the products concerned are marketed.
94 The possibility of prohibiting the cross-border sale of tobacco products is in itself already provided for in Article 18 of Directive 2014/40. As is apparent from recital 33 of that directive, such a prohibition seeks, in particular, to prevent circumvention of the compliance rules for tobacco products laid down by that directive. However, that prohibition is not as such appropriate for ensuring a high level of health protection, since, in the absence of a prohibition on the placing on the market of tobacco products with a characterising flavour, those products would continue to attract consumers.
95 As regards affixing a health warning on the labelling stating that tobacco products with a characterising flavour are as harmful to health as other tobacco products, this does not appear to be as appropriate for protecting consumer health as the prohibition on the placing on the market of tobacco products with such a flavouring, since the presence of that flavouring is, by its nature, likely to promote and sustain tobacco use, as is apparent from paragraph 44 above.
96 Consequently, it must be found that the prohibition on the placing on the market of tobacco products with a characterising flavour does not go manifestly beyond what is necessary in order to attain the objective sought.
97 As regards, in the third place, the allegedly disproportionate effects of the prohibition on the use of menthol as a characterising flavour, on account of the negative economic and social consequences to which that prohibition would give rise, it must be noted that, even though it has, in the present case, a broad legislative power, the EU legislature must base its choice on objective criteria and examine whether aims pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators (see, to that effect, judgment in Luxembourg v Parliament and Council, C‑176/09, EU:C:2011:290, paragraph 63 and the case-law cited).
Again, I won’t venture into the question how far these standards are the same or different from those employed under various provisions of the WTO. Still, the similarity in some of these standards is quite interesting to observe.