Imperial Tobacco Ltd. v. The Lord Advocate (Scotland)
Imperial Tobacco lost this final stage in its legal challenge of Scotland’s legislation to prohibit the display of tobacco products at the point of sale and to ban the sale of tobacco products from vending machines (originally passed by the Scottish Parliament in 2010). Imperial claimed the legislation exceeds Scotland’s powers granted during devolution, such that the legislation was beyond the competency of the Scottish Parliament to pass. The Supreme Court of the United Kingdom, agreeing with both of the lower courts’ decisions, found all of Imperial’s challenges unfounded and dismissed the appeal. The Supreme Court found that the law was designed to protect public health by reducing the attractiveness and availability of tobacco products, not prohibit their sale.
Imperial Tobacco Limited v. The Lord Advocate (Scotland) [2012] UKSC 61.
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 restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution.
(See FCTC Art. 16)
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
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.
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
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"As for section C8, the scope of the expression “product safety” extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987: see para 36, above. Here too there is a mismatch between what falls within the scope of that expression and the purpose of sections 1 and 9 of the 2010 Act. Their purposes have nothing to do with the standards of safety to be observed in the production and sale of tobacco products or smoking related products that are available for purchase in places where they are offered for sale or are sold by means of vending machines. The Secretary of State is empowered by section 11 of the Consumer Protection Act 1987 to make such provision as he considers appropriate to prohibit the supply of specific tobacco products either generally or to a particular class of persons: R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, per Taylor LJ at p 365. But sections 1 and 9 do not prohibit the supply of these products either generally or to any particular class. Nor is it their purpose to do so. They are designed to promote public health by reducing their attractiveness and availability, not to prohibit in any way the sale of these products to those who wish and are old enough to purchase them. Promotion of public health in Scotland is a responsibility of the Scottish Parliament under the devolution settlement. Taylor LJ’s observation in United States Tobacco at p 365 that the 1987 Act is apt to protect the consumer for reasons of public health must not be taken out of context. The words “product safety” in C8 direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all. I would reject this ground of challenge also."
"I take first section C7(a). I approach it on the assumption most favourable to the appellants that it encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection: see para 34, above. But I do not see how, even on that assumption, it can be said that the purpose of sections 1 and 9 of the 2010 Act has anything to do with consumer protection in that sense. Their aim is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices. There will be nothing of that kind to regulate as far as the vending machines are concerned. The use of such machines will be prohibited, and there will be no sales from any of them.
As for any sales that may be entered into in a place where tobacco products are offered for sale, the purpose of section 1 is to discourage transactions in such products by preventing them from being displayed and, by this means, their availability for sale from being advertised. The terms and conditions of any sale that may take place are unaffected, as are any other aspects of the transaction that may need to be regulated to ensure that the consumer is not exposed to a method of trading that is unfair. The area of activity with which the section deals is outside the scope of consumer protection, because it does not seek to regulate in any way any sales that may actually take place. For these reasons I would hold that this ground of challenge is misconceived and that it must be rejected."
"The question whether sections 1 and 9 of the 2010 Act “relate to” the matters reserved by section C7(a) and section C8 in Head C of Schedule 5 is to be determined by reference to the purpose of those provisions, having regard among other things to their effect in all the circumstances: section 29(3). The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers, and thereby achieve a reduction in sales. The purpose of section 9 is to make cigarettes less readily available, particularly to children and young people, with a view to reducing smoking: see para 22, above. Their legal effect and their short term consequences can be taken to be consistent with those purposes. As tobacco products will be less visible and less readily available, the result is likely to be a reduction in sales and a consequent reduction in smoking. The extent to which those aims will be realised in practice does not matter, as it is to the purpose of the provisions that section 29(3) directs attention in order to determine whether they are within competence."
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.
Imperial Tobacco lost this final stage in its legal challenge of Scotland’s legislation to prohibit the display of tobacco products at the point of sale and to ban the sale of tobacco products from vending machines (originally passed by the Scottish Parliament in 2010). Imperial claimed the legislation exceeds Scotland’s powers granted during devolution, such that the legislation was beyond the competency of the Scottish Parliament to pass. The Supreme Court of the United Kingdom, agreeing with both of the lower courts’ decisions, found all of Imperial’s challenges unfounded and dismissed the appeal. The Supreme Court found that the law was designed to protect public health by reducing the attractiveness and availability of tobacco products, not prohibit their sale.