Why the Government should ignore the current threat from the tobacco industry

The recent legal threats to the proposed enactment of the Public Health (Standardised Packaging of Tobacco) Bill will have come as little surprise to seasoned observers of the tobacco lobby. What has come as a surprise is the nature of the intervention, a letter seeking immediate suspension of the enactment by today with a suggestion of intervention in the courts if such an undertaking is not forthcoming.

The dispute has its origins in the adoption in 2014 by the European Union of a new Tobacco Products Directive (2014/40/EU) and its proposed transposition in to Irish law by national legislation. At the heart of the dispute is the proposal of the Government to go beyond the directive and introduce a plain packaging requirement for tobacco products in Ireland.

It is worth noting that the proposed legislation before the Oireachtas seeks to give effect to the directive, as is required by EU law, as well as introducing plain packaging. The tobacco industry in general and the company JTI in particular object to the Bill on a variety of grounds including the suggestion that it would infringe property rights and trade mark rights as well as being in violation of both EU and World Trade Organisation law.

The suggestion that the latest round of tobacco controls infringe EU law can be crystallised into two arguments. First, JTI suggests that the current Bill transposing the EU Directive should not be adopted pending the outcome of a case currently before the European Court of Justice (ECJ) as to the validity of the directive. Second, JTI suggests that the additional requirement in the Bill allowing for plain packaging is offensive to the freedom of movement of goods as guaranteed by the EU treaties.

On the first point, in 2014 the British courts referred a case to the ECJ concerning the validity of the relevant EU Directive. This came as no surprise as the validity of previous tobacco directives have also been challenged. As national member-state courts cannot declare a measure adopted by the EU to be invalid it was always likely that such a challenge in the British courts would be referred to the ECJ. However, the suggestion that the Irish courts intervene to prevent the transposition of a directive, which has a presumption of validity, into Irish law pending the outcome of a case before the court of justice is unlikely to gain much support.

One could draw an analogy with the Government proposal on minimum unit pricing for alcohol. A similar measure adopted in Scotland is currently the subject of a reference to the ECJ as to its conformity with EU law. In the circumstances it might be advisable to refrain from adopting the measure in Ireland until clarity is received from the ECJ.

However, the distinction between the two cases is that the Tobacco Bill is giving effect to an EU law; in addition, the advisability of not legislating is different from a suggestion that the courts would intervene in the adoption of legislation by the Oireachtas.

Secondly, it is suggested by the tobacco industry that the concept of plain packaging runs contrary to article 34 of the Treaty on the Functioning of the European Union.While it is true that proposals on plain packaging would place a limitation on the freedom of movement of tobacco products within the EU, the same may be said for other existing requirements such as the adhesion of a tax stamp to a packet of cigarettes or the requirement of a health warning being printed in the language(s) of the relevant member-state. Both such requirements already exist and have not proved an insurmountable obstacle to tobacco manufacturers within the European Union.

The proposal for plain packaging is required to be notified to the European Commission under the Technical Standards Directive and such notification took place last year. Indeed JTI’s Brussels office wrote to the European Commission objecting to the proposal on foot of the notification.

Any challenge to the plain packaging proposal on grounds that it runs contrary to the freedom of movement of goods will undoubtedly be defended on the grounds of an objective justification based on public health concerns. Central to any such case will be a discussion as to whether the plain packaging proposal is a disproportionate response especially in the light of the fact that the Tobacco Directive itself did not introduce a plain packaging requirement. However, it is likely that Ireland would successfully contend the directive allows for additional measures including plain packaging provided it can be justified on grounds of public health.

Indeed, the potential for a challenge to the Bill has clearly been anticipated by the Government. Speaking in the Dáil at the conclusion of the second stage debate on the Bill, the then minister for health, James Reilly, stated: “While a legal challenge by the industry cannot be ruled out, I am confident that the research available to us demonstrates that standardised packaging will have a positive impact on health and is a proportionate and justified measure.”

The current threats from the tobacco industry are unlikely to meet with success in the courts and the Government would be well advised to ignore them at present as they constitute an unjustified attempt to interfere in the legislative process.

However, it is likely that the plain packaging rules once enacted will ultimately be challenged before the courts and its compatibility with the principle of the freedom of movement of goods will ultimately be determined by the European Court of Justice.

Declan Walsh is a lecturer in European Union law at the school of law, University College Cork