Philip Morris Norway v. The Ministry of Health and Care Services

Philip Morris Norway challenged Norway's ban on the display of tobacco products at retail establishments.  A European court, ruling on European law, determined that the domestic Norwegian court must decide whether "the measure is necessary to achieve the stated goal, and that goal cannot be reached using less extensive prohibitions or restrictions or prohibitions or restrictions that affect trade within [Europe] less."  The Norway court determined that the display ban is necessary and that no alternative, less intrusive measure could produce a similar result.  The court upheld the ban and ordered Philip Morris to pay legal fees.  

Philip Morris Norway v. The Ministry of Health and Care Services, Civil Action No. 10-041388TVI-OTIR/02, Oslo District Court (2012).

  • Norway
  • Sep 14, 2012
  • Oslo District Court

Parties

Plaintiff Philip Morris Norway AS

Defendant Staten v/Helse Og omsorgsdepartementet (Ministry of Health and Care Services)

Third Party

  • The Norwegian Cancer Society

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Even if such campaigns contribute to de-normalisation, the absence of visible tobacco in the shops will in the District Court’s opinion reinforce the effect and operate in the same direction. Contrariwise, continued influence by visibly displayed tobacco products could weaken the de-normalisation effect of the mass media campaigns. The District Court refers in this context to Rt. 2009 page 839, Pedicel, paragraph (36) on the indirect effect of advertising, the normalising effect, and where the Supreme Court refers to an example that can also illuminate the issue in our case – transferred to the influence of a visible display of tobacco: “An example of such a connection is referred to in the European Commission’s proposed tobacco directive of 19 January 2001 (COM(22001) 283) page 6 (501PC0283): “As regards the subtle implications of the advertising of a product such as tobacco, the United Kingdom example is significant. In this Member State two thirds of the adult smokers say they want to stop, but half agreed with the statement that smoking cannot be all that dangerous, or the government would not allow tobacco to be advertised.” ” Nor will a limited display ban remove the advertising and normalising effect of a visible tobacco display. The government has in this context referred to the WHO Guidelines, where it is emphasised that the effect of a partial advertising ban is limited. This was also emphasised by the government’s expert witnesses Lund, Chaloupka and Hastings. The District Court also refers to Rt. 2009 page 839, Pedicel, paragraph (61), where it is found that a less comprehensive measure, a quantitative restriction in the total prohibition, must be presumed to weaken the effect of the measure. The Supreme Court found it clear that such an alternative measure cannot lead to the total ban on alcohol advertising not being deemed necessary. This must apply correspondingly in our case as regards a limited display ban. The District Court therefore considers that the Display Ban is necessary and that there are no other alternative, less interventionist measures that could yield a corresponding result."
"The objective of the Display Ban is a general reduction in tobacco use in the population and particularly among young people, as a step towards a paramount objective of a tobacco-free society. Given the purpose and justification for the measure, the Display Ban must be seen as an extension of the advertising ban and as a measure for closing what the authorities regarded as a loophole in the advertising ban. Reference is made to the District Court’s review above under the suitability question, regarding the comparison between advertising and display. As the objective of the Display Ban is described in the preparatory works, the District Court finds that the objective is more specifically to remove the advertising effect of visible displays of tobacco at points of sale. The Display Ban shall further contribute to de-normalisation of smoking in that tobacco products are not visibly displayed together with or at the same location as corner-shop and supermarket goods. In addition, the measure is specially directed at preventing children and youngsters from beginning to smoke. This is an element of both the advertising effect and of de-normalisation. It is also noted that the Display Ban can contribute to facilitating quitting and preventing relapse for smokers who have quit, by the tobacco products not being visible in the shop. All in all, over time this will lead to a decline in tobacco use and a positive effect on public health."
"The Display Ban is suitable and necessary; this is established in the guidelines to the Convention. The world community has endorsed this interpretation, including the EU. This means that the measure is obviously suitable. In Norway, the Display Ban has a greater effect than in countries where advertising is still allowed. Such strict regulation is entirely necessary. The tobacco industry should be treated differently from other industries on the grounds of the great health risks. The intervention is proportional to the gravity of the harmful effect of tobacco."
"The Framework Convention on Tobacco Control states by way of introduction that states shall prioritise their right to protect public health. There is an inherent conflict in that the government is to protect public health while the tobacco industry on the other hand desires a market position for a product that is harmful to health. All in all, the tobacco industry wants to protect its product as legal, and is working against government regulation."