Tobacco firms challenge ban on flavoured heated tobacco products

The High Court has granted permission to two tobacco companies to bring a challenge over a new EU directive banning flavoured heated tobacco products.

The State is set to transpose the new EU law by next July. But the country’s oldest tobacco manufacturer, PJ Carroll and Co Ltd, along with UK marketing and sales firm, Nicoventures Trading Ltd, claim the EU directive is invalid. Their challenge is against the Minister for Health, Ireland and the Attorney General.

Under previous regulations, flavoured heated tobacco products were not banned but this was changed by the European Commission which wants member states to transpose the ban by July 23rd.

The use of these products involves the smoker consuming half the tobacco of a traditional cigarette. They are smoked using a battery-powered electronic device which heats the cigarette – rather than burns it – and a nicotine-contained aerosol is produced which the user inhales.

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In 2021, PJ Carroll, which holds 10 per cent of the Irish market for e-cigarettes, says it began taking steps to commercialise heated tobacco products in the State, including flavoured ones.

However, the company says, the banning of these products by the EU severely undermined its “ability to capitalise fully on the unique opportunity of being the first company to launch heated tobacco products on the Irish market for adult smokers who would otherwise continue to smoke”.

Simon Carroll, a director and head of trade in PJ Carroll, said in an affidavit the ban will also undermine significant investment by the British American Tobacco (BAT) group, which the Irish and UK firms are part of, in the development of “products with reduced risk profile (relative to cigarettes) to cater to the preferences of adult smokers in Ireland who would otherwise continue to smoke”.

The ban also has significant implications for the implementation of public health policy and antismoking campaigns where there are acceptable alternatives to traditional cigarettes, he said.

PJ Carroll and Nicoventures wrote to the Minister for Health and the Chief State Solicitor and were told any court challenge in Ireland was premature given that a direct EU challenge by a number of applicants, including PJ Carroll and Nicoventures, had already been initiated before the EU General Court, a part of the Court of Justice of the EU (CJEU).

As the Minister for Health confirmed Ireland would be transposing the directive next July, PJ Carroll and Nicoventures brought an application before Mr Justice Charles Meenan on Wednesday seeking to challenge the directive and the intended transposition of it into Irish law. As the application was brought ex parte, only the plaintiffs were represented in court.

Margaret Gray SC, for PJ Carroll and Nicoventures, said it was their case the European Commission had unlawfully extended the directive to cover products of her clients and that in doing so it failed to provide proper reasoning.

The companies claim, among other things, that the new directive is invalid because it constituted the unlawful exercise of delegated powers under the previous Tobacco Products Directive (TPD).

The commission’s method of assessing “a substantial change of circumstances” (in introducing the new ban) exceeded the scope of delegated powers under the TPD, they also say.

The court was also told the companies will be asking to have the matter referred to the CJEU for a preliminary ruling.

The judge was satisfied to grant leave but said he believed the reference to the CJEU would have to be first dealt with before anything else. He said the case could come back next month.

*This article was amended on Monday, January 16th to remove references to vaping