The Federal Office of Consumer Protection and Food Safety denied a tobacco company's request to sell a cigarette that contained a menthol capsule that releases a burst of flavor whenever the smoker crushes the capsule during smoking. The tobacco company appealed the government decision. In this decision the court upheld the agency's denial. The court found that the flavor capsules violated the principle of the Framework Convention on Tobacco Control that the attractiveness of tobacco products should not be increased by novel products. The court found that the effect of the releasing the refreshing flavor on demand encourages the smoker to remain dependent. Additionally, occasional smokers or young smokers may become addicted to cigarettes with the flavor capsule where they would otherwise be discouraged by the harsh and unpleasant tobacco taste. The court found that cigarettes with flavor capsules are more hazardous than conventional cigarettes, and upheld the ban.
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 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.
"Insofar as the Defendant cites the harmfulness of menthol in connection with the smoking of
cigarettes, it does not however thereby give evidence of the compelling reasons of health
protection. The fact that the additive menthol has a cooling, pain-relieving and slightly numbing
effect, which makes the inhalation of the severe and irritating tobacco smoke easier and according
to American studies, an increased potential for addictiveness (see Kahnert et al., Effects of Menthol
as an Additive in Tobacco Products and the Need for Regulation, Federal Health Bulletin
(Bundesgesundheitsblatt) 2012, 409-415), is not sufficient to prohibit the marketing of a new
cigarette with a menthol capsule, because these effects also arise when smoking the "traditional"
menthol cigarettes that are allowed on the German market."
"In the interpretation of the "compelling reasons of health protection" criterion, for tobacco products
it must be considered that in contrast to food there is the fact that the smoking of each cigarette
with or without a menthol additive is damaging to health and addictive. The free movement of
goods for tobacco products has therefore also been qualified from the outset. That is roughly what
is said in the recitals 4 for the Directive 2001/37/EG of 06/05/2001 for the alignment of the legal and
administrative regulations of the member states regarding the manufacture, packaging and sale of
tobacco products (- L194, 26 -), that in light of the particularly harmful effects of tobacco, in this
context, priority should be given to health protection and all new findings supported by scientific
results must be considered. According to these principles, in the present case there are compelling reasons of health protection considering the Defendant's degree of discretion. For this, the Defendant does not have to prove that the consumption of the Plaintiff product itself is more harmful than traditional menthol cigarettes permitted on the German market due to certain substances in the smoke. Rather, it is sufficient that there is information on this type of cigarette which shows significantly greater harmfulness and or risk of addiction compared to traditional 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.
The Federal Office of Consumer Protection and Food Safety denied a tobacco company's request to sell a cigarette that contained a menthol capsule that releases a burst of flavor whenever the smoker crushes the capsule during smoking. The tobacco company appealed the government decision. In this decision the court upheld the agency's denial. The court found that the flavor capsules violated the principle of the Framework Convention on Tobacco Control that the attractiveness of tobacco products should not be increased by novel products. The court found that the effect of the releasing the refreshing flavor on demand encourages the smoker to remain dependent. Additionally, occasional smokers or young smokers may become addicted to cigarettes with the flavor capsule where they would otherwise be discouraged by the harsh and unpleasant tobacco taste. The court found that cigarettes with flavor capsules are more hazardous than conventional cigarettes, and upheld the ban.