British American Tobacco UK Ltd., et al. v. Secretary of State for Health
Five tobacco manufacturers and one vending machine supplier challenged the legality of the Tobacco Advertising and Promotion Regulations 2004, which bans tobacco product advertising, with limited exceptions. The applicants filed an application for judicial review, alleging that the exceptions to the regulations were disproportionately restrictive of advertising at the point of sale. The Court held that the Minister of Health acted within the scope of his authority and dismissed the application for judicial review.
British American Tobacco UK Ltd., et al. v. Secretary of State for Health, [2004] EWHC 2493, Administrative Court (2004).
United Kingdom
Nov 5, 2004
High Court of Justice, Queen's Bench Division, Administrative Court
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Mr. Pannick conceded that this was merely a "supplementary" point in support of his three other heads of argument considered above. However, even for this limited purpose, I do not consider that the argument is well-founded. Mr. Adkin explains fully in his first witness statement the reasoning process adopted in framing the Regulations. For example, in paragraph 65 of that statement in particular he sets out six principal factors which were taken into account in framing
the Regulations. Each of those considerations seem to me to be entirely appropriate foundations for regulations such as these. As I have said, given those objectives, the Minister consulted and then produced the rules, drawing a line where he considered appropriate to meet the objectives. I do not consider he infringes any test of proportionality if he fails to address every single potential grievance that a producer may ultimately have even before the draftsman puts pen to paper. He has promulgated regulations meeting the objectives. The proportionality of his decision is not to be impugned because, where grievances are raised in litigation, he answers them in a more detailed fashion than he could have done when the policy decision was taken and before the objections were raised. Provided that some particular flaw is not identified, which undermines the rationality or proportionality of his policy and his regulations, he is, I think, entitled to justify the application of the regulations made in the particular context of the criticism raised. That is not "ex post facto" rationalisation of the regulations, it simply serves to demonstrate that the specific criticism does not dent the integrity of the decision as originally made. It may always be that, when tested in practice, regulations of this or any other type, may be seen to require refinement or they may prove to be satisfactory for many years. It is obviously important for any Minister to consider and, if thought fit, meet any specific criticism raised. In the alternative, he may decide to amend the relevant regulations. If he takes either of these steps it does not necessarily detract from the rationality or proportionality of the regulations as originally promulgated."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Five tobacco manufacturers and one vending machine supplier challenged the legality of the Tobacco Advertising and Promotion Regulations 2004, which bans tobacco product advertising, with limited exceptions. The applicants filed an application for judicial review, alleging that the exceptions to the regulations were disproportionately restrictive of advertising at the point of sale. The Court held that the Minister of Health acted within the scope of his authority and dismissed the application for judicial review.