The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., et al.
The High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court) referred questions concerning the validity and reach of Directive 2001/37/EC of the European Parliament to the Court of Justice of the European Union. Directive 2001/37/EC standardized member-state regulations pertaining to the manufacture and labeling of tobacco products in an effort to promote the internal efficacy of the market and a high level of public health. The Court held, among other things, that the Directive was properly enacted within the authority vested in the European Parliament by Article 95 EC and that the Directive did not violate the proportionality principle, property rights, the obligation to give reasons, or the subsidiarity principle.
The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., et al., Case C-491/01, Court of Justice of the European Union (2002).
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.
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.
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 property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Regulatory measures may lead to an increase in illegal sales, such as counterfeit products. The industry may also argue that such illicit trade will reduce tobacco tax revenue.
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.
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.
"The fact is that since the Community legislature made exhaustive provision in Directive 90/239 over the question of fixing the maximum tar yield of cigarettes, the Member States no longer had the power to enact individual rules in that area. As the Advocate General has observed in paragraph 124 of his Opinion, the Community legislature can properly carry out its task of safeguarding the general interests recognised by the Treaty, such as public health, only if it has the freedom to amend the relevant Community legislation so as to take account of any change in perceptions or circumstances. It follows that, even where a provision of Community law guarantees the removal of all obstacles to trade in the area it harmonises, that fact cannot make it impossible for the Community legislature to adapt that provision in step with other considerations. With regard in particular to the protection of public health, it follows from Article 95(3) EC that the Community legislature, in harmonising the legislation, must guarantee a high level of protection, taking particular account of any new development based on scientific facts."
"It follows that the Directive genuinely has as its object the improvement of the conditions for the functioning of the internal market and that it was, therefore, possible for it to be adopted on the basis of Article 95 EC, and it is no bar that the protection of public health was a decisive factor in the choices involved in the harmonising measures which it defines."
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.
The High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court) referred questions concerning the validity and reach of Directive 2001/37/EC of the European Parliament to the Court of Justice of the European Union. Directive 2001/37/EC standardized member-state regulations pertaining to the manufacture and labeling of tobacco products in an effort to promote the internal efficacy of the market and a high level of public health. The Court held, among other things, that the Directive was properly enacted within the authority vested in the European Parliament by Article 95 EC and that the Directive did not violate the proportionality principle, property rights, the obligation to give reasons, or the subsidiarity principle.