Cubacigar Benelux NV v. State of the Netherlands (Ministry of Health, Welfare and Sport)
Cubacigar Benelux NV (Cubacigar) appealed a lower court decision upholding packaging restrictions contained in the Tobacco and Smoking Regulations. Specifically, Cubacigar had challenged restrictions limiting the use of metallic foils and embossing (“glitter and glamor” elements) on cigar boxes. The lower court held that these restrictions in the Tobacco and Smoking Regulations did not conflict with the EU Tobacco Products Directive. The court also determined that although the packaging requirements restricted the free movement of goods, the requirements were justified from a public health point of view because they are aimed at reducing the attractiveness of tobacco products. Further, the requirements of the principle of proportionality were also met.
On appeal, the Court of Appeal upheld the lower court's decision that the packaging requirements under the Tobacco and Smoking Regulations are in line with the EU Tobacco Products Directive. The Court concluded that the government presented sufficient evidence demonstrating that the measures are justified on grounds of public health protection and are proportionate.
Cubacigar Benelux NV v. State of the Netherlands (Ministry of Health, Welfare and Sport), Hague Court of Appeal, 30 June, Case Number: 2020. 200.269.353 / 01.
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.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
A violation of freedom of the right to travel, reside in, and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others. Smokers may claim that smoke free laws violate this right.
Any combustible tobacco product that is designed to be smoked – other than cigarettes – including cigars, cigarillos, little cigars, blunts, and bidis or beedis (small, flavored filterless Indian cigarettes).
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.
"In this context, the Court also considers important what is said in the guidelines for the implementation of the WHO Framework Convention on the packaging of tobacco products. In these guidelines, the Contracting Parties are called upon to prescribe generic packaging for tobacco products, because this can increase the visibility of health warnings and prevent them from diverting attention from those warnings or put the harmfulness of tobacco products into perspective (see above under 2.6 ). As long as generic packaging is not yet prescribed, the contracting parties are called upon to prohibit “glitter and glamor” elements (see 2.7 above: “If plain packaging is not yet mandated, the restriction should cover as many as possible of the design features that make tobacco products more attractive to consumers, such as animal or other figures, “fun” phrases, colored cigarette papers, attractive smells, novelty or seasonal packs. ") In the context of the WHO Framework Convention, it is therefore also assumed that the prohibition of "glitter and glamor elements" of packaging can contribute to the protection of public health."
"...if generic packaging can reduce the attractiveness of tobacco products, it is reasonable to assume that banning specific packaging elements that aim to make tobacco products more attractive will have the same effect. This effect may be less, because distinguishing features are not completely prohibited. At the same time, such measures also have less far-reaching consequences for the ability of tobacco product suppliers to differentiate their products. That banning of specific elements of packaging has less effect than prescribing generic packaging."
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.
Cubacigar Benelux NV (Cubacigar) appealed a lower court decision upholding packaging restrictions contained in the Tobacco and Smoking Regulations. Specifically, Cubacigar had challenged restrictions limiting the use of metallic foils and embossing (“glitter and glamor” elements) on cigar boxes. The lower court held that these restrictions in the Tobacco and Smoking Regulations did not conflict with the EU Tobacco Products Directive. The court also determined that although the packaging requirements restricted the free movement of goods, the requirements were justified from a public health point of view because they are aimed at reducing the attractiveness of tobacco products. Further, the requirements of the principle of proportionality were also met.
On appeal, the Court of Appeal upheld the lower court's decision that the packaging requirements under the Tobacco and Smoking Regulations are in line with the EU Tobacco Products Directive. The Court concluded that the government presented sufficient evidence demonstrating that the measures are justified on grounds of public health protection and are proportionate.