“The Criminal Court found the companies guilty of tobacco advertising, on the grounds that the IQOS electronic device was a tobacco product since its use required the insertion of a HEETS tobacco refill to be heated, and that the companies were inciting the consumption of the latter. The Court overturned the judgement, stating that no offence could be held to have been committed because Philip Morris Products SA was not responsible for the facts, the IQOS electronic device was not a tobacco product, and the communications in question did not constitute advertising but rather information of limited access to adult smokers on the essential characteristics of IQOS in compliance with the French Consumer Code, the effect of the judgment was to prohibit any communication on technological advances, a prohibition that constituted a disproportionate infringement of consumers’ freedom of expression and information regarding the products they consume.”
Philip Morris France SAS v. National Committee for Tobacco Control
Philip Morris France SAS v. National Committee for Tobacco Control, Paris Court of Appeal, 22/00519 (2024)
- France
- Jun 25, 2024
- Paris Court of Appeal, Division 2, 8th Chamber
Parties
Legislation Cited
Related Documents
Type of Litigation
Tobacco Control Topics
Substantive Issues
Type of Tobacco Product
“The promotion of a tobacco heating system necessarily implied an indirect promotion of tobacco use. The defendants criticised the court for finding that the companies presented the IQOS product as consisting of three parts: a heated tobacco unit containing a stick, a holder into which the tobacco unit is inserted and a charger. Yet this is how they described the product in the file submitted to the FDA. As noted by the court, the product is presented on the website as having many benefits (no cigarette smell, no ashes, no smoke). The aim was to encourage people to smoke, but to smoke better, in a less ordinary, more modern, in a more in touch way. This objective is clearly stated, since under the slogan “Delivering a smoke-free future”, it is stated: our mission is to offer better alternatives to adult smokers who want to continue using tobacco. The laudatory language (best alternative, exceptional technology) and the presentation of the product in terms of scientific progress and medical reassurance were part of this advertising.”
"According to the CNCT and the ADNF, PHILIP MORRIS could not therefore reasonably claim to be encouraging complete smoking cessation, as implied by the misleading wording on their website: “Delivering a smoke-free future”. In its Frequently Asked Questions section (FAQs), the IQOS website answered the question: “Will IQOS help me to stop smoking? If you’re concerned about the effects of smoking on your health, it is best to stop using tobacco altogether”, thus acknowledging that IQOS is a tobacco product."
In 2021, Philip Morris France SAS (PMF) and Philip Morris Products SA (PMP) were convicted for IQOS’s illegal advertisement in France. PMF and PMP both appealed. In this June 25, 2024 decision, the Paris Court of Appeal upheld the lower court’s underlying conviction.
In this appeal, the PMF and PMP alleged the French Public Health Code’s prohibition on tobacco advertising was a disproportionate infringement on freedom of information and enterprise and impeded an individual’s right to protect their own health. PMF and PMP also re-submitted their trial positions that IQOS was not a “tobacco product” and therefore could be advertised in France.
The Court of Appeal held that IQOS was not a “tobacco product” but concluded the advertising ban still applied as IQOS encouraged the use of tobacco. Further, as IQOS’s sale was permitted and as the advertising ban allowed for limited exceptions, the limitations on rights were proportionate to the interest in protecting public health.
The court modified but affirmed the criminal court’s convictions. PMF was fined 500,000 EUR while PMP was fined 400,000 EUR. Civilly, PMF and PMP were ordered to pay the plaintiffs in the initial case, CNCT and DNF, 1,730,910 EUR in recognition of the harm which IQOS’s illegal advertising had caused to France’s anti-smoking initiatives.