R (on the Application of) Philip Morris Brands SARL et al. v. Secretary of State for Health

A challenge to the validity of the European Union’s (EU) Tobacco Products Directive (TPD) 2014 brought by Philip Morris and British American Tobacco was dismissed on all grounds by the Court of Justice of the European Union (CJEU). The amended TPD was adopted in April 2014 and provides a wide range of requirements relating to emissions, reporting, 65% pictorial health warnings, packaging and labeling, a ban on characterizing flavors and other additives, and regulates e-cigarettes. Article 24(4) permits Member States to adopt further requirements to standardize packaging. The TPD applies to all countries within the EU.

In this case, Philip Morris and BAT brought a judicial review against the United Kingdom based on the government’s intention to implement the TPD requirements in UK legislation. The tobacco companies claimed that parts of the TPD and the Directive as a whole were invalid because the TPD was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonizing in nature; and contravened the principle of subsidiarity.  The UK court hearing the case referred questions on the interpretation of EU law to the CJEU. The CJEU upheld all aspects of the TPD, including provisions to require pictorial warning labels, to prohibit menthol cigarettes, and to allow countries to prohibit cross-border sales and to adopt additional packaging restrictions, such as plain packaging. The court noted that the EU may act to prevent obstacles to the trade of tobacco products while also ensuring a high level of public health protection. The court found that the packaging and labeling requirements were proportionate and did not go beyond what were necessary and appropriate. 

In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation. 

EU Member States are obliged, under the TPD, to implement most provisions of the TPD into domestic law by May 20, 2016 (although a number of states have been late in their implementation).

The Queen on the Application of Philip Morris Brands SARL et al. v. Secretary of State for Health, Case C-547/14, Court of Justice of the European Union (2016).

  • European Union
  • May 4, 2016
  • Court of Justice of the European Union

Parties

Plaintiff

  • The Queen, on the application of British American Tobacco UK Ltd
  • The Queen, on the application of Philip Morris Brands SARL
  • The Queen, on the application of Philip Morris Ltd

Defendant THE SECRETARY OF STATE FOR HEALTH

Third Party

  • Deutsche Beckert GmbH & Co. KG
  • Gallagher Ltd
  • Imperial Tobacco Ltd
  • Ireland
  • Joh. Wilh. von Eicken GmbH
  • JT International SA
  • Tann UK Ltd
  • Tannpapier GmbH
  • The Council of the European Union
  • The European Commission
  • The European Parliament
  • The French Government
  • The Hungarian Government
  • The Italian Government
  • The Kingdom of Norway
  • The Polish Government
  • The Portuguese Government
  • The United Kingdom Government
  • V. Mane Fils

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Having regard to the foregoing considerations, it does not appear that, in adopting Article 10(1)(a) and (c) of Directive 2014/40, the EU legislature manifestly went beyond the limits of what is appropriate and necessary to attain the objective of improving the conditions for the 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."
"That prohibition [of menthol products] is also appropriate for ensuring a high level of human health protection, especially for young people. Indeed, it is not disputed that certain flavourings are particularly attractive to young people and that they facilitate initiation of tobacco consumption. As regards the argument that young people are not attracted to menthol and that the use thereof does not facilitate that initiation, it has already been stated in paragraph 115 of this judgment that the EU legislature could properly make all characterising flavours subject to the same set of legal rules. Accordingly, the appropriateness of the prohibition in question for the purpose of achieving the object of human health protection cannot be called into question solely in respect of a particular flavouring. The point should also be made that, according to the Partial Guidelines for Implementation of Articles 9 and 10 of the FCTC — which should, on account of the findings made in paragraph 112 of this judgment — be recognised as being of particularly high evidential value, menthol, amongst other flavours, contributes to promoting and sustaining tobacco use and, because of its palatability, renders tobacco products more attractive to consumers. Furthermore, Directive 2014/40 is aimed at ensuring a high level of health protection for consumers as a whole and consequently its ability to achieve that aim cannot be assessed solely in relation to a single category of consumers."