Swedish Match Ltd. v. The Ministry of Health and Care Services
Swedish Match Ltd. ("Swedish Match") sought an injunction in the Oslo County Court to suspend Norway's plain packaging laws for 'snus' (oral tobacco) while it brought a full challenge to the law. The Norwegian law requires plain packaging for cigarettes, hand-rolled tobacco and snus. Swedish Match is the main producer of snus in Europe and Scandinavia. The key legal basis for the claim is that the law violates the EEA Agreement (the trade agreement with the European Union) because it is an unjustified restriction on the trade in goods. Swedish Match argued that snus is the least harmful smoke-free tobacco product on the market and that the government had not considered how important snus is as a harm-reduction product. They claimed it was wrong to treat cigarettes and snus equally in their packaging requirements and that there was no evidence that plain packaging would work to reduce tobacco use.
The Oslo County Court dismissed the application ruling that plain packaging is both suitable, appropriate and necessary and that it does not involve any arbitrary discrimination or hidden trade restriction. Swedish Match was ordered to pay all the government's legal costs.
Swedish Match Ltd. v. The Ministry Swedish Match et al., Case No.: 17-110415TVI-OBYF, Oslo County Court (2017).
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 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 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 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.
Tobacco products that are used by means other than smoking, such as chewing, sniffing, or placing between the teeth and gum. Examples include chewing tobacco, dipping tobacco, snuf, snus, gutkha or gutka, and dissolvable tobacco products.
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.
"As regards Swedish Match's argument that snuff is a harm-limiting alternative (alternative product) to cigarettes, the Court will refer to the Advocate General's statement in case C210/03 Swedish Match, sections 50-54 and 89, which states that there is uncertainty linked to both the harm limitation theory (that snuff is a harm-limiting alternative to cigarettes) and the “gateway” theory (that using snuff may lead to more people - who otherwise would not have started using tobacco – beginning to smoke). Furthermore, the Court cannot see that more recent research contributes significantly to the greater clarity of these issues, see for example, Commission Staff Working Document, Impact Assessment, 19 December 2012, pages 66-69, with a review of available research, and Ingeborg Lund and Karl Erik Lund, How has the Availability of Snuff Influenced Cigarette Smoking in Norway? International Journal of Environmental Research and Public Health 2014, page 11713. The Court further refers to the explanation of Karl Erik Lund, where it was found that his assessment was that the net health benefit of the measure would be negative, but that this is an assessment question. With respect to this question, David Hammond explained that the introduction of standard packaging requirements is likely to have little or no effect for people who want to switch from cigarettes to snuff.
It follows from this that the problem presented here before the Court must be regarded as quite complex and as having an uncertain conclusion. As shown above, this also requires that the courts show restraint when testing whether the relevant measure is appropriate. In addition, this is a question of the introduction of a recognised measure, which is recommended internationally and being introduced in a number of countries, and which is considered effective by research, especially where the states have already introduced extensive restrictions on marketing tobacco products. The Court refers in particular here to the statement by David Hammond regarding the effect of introducing requirements for standard packaging. Under these circumstances, the measure must also be considered to be appropriate."
"In the court's view, there are no indications that the proposed alternatives safeguard all of the objectives of the chosen measure. The court refers in this to Proposition 142 L (2015-2016), page 59 (subsection 3.6.2), which states that the purpose of the measure is more than to reduce the proportion of children and youths who start using tobacco, although this is the central purpose of the measure. In the proposition and the recommendation, it is stated, as shown above, that the measure is also expected to contribute to a moderate reduction in tobacco consumption among adults, as well as to the denormalisation of tobacco products and tobacco use in society. In addition, it is stated that the measure will also contribute to fulfilling Norway's obligations under the Tobacco Convention. The measure must also be seen in connection with the long-term vision of the Tobacco Harm Act with respect to a tobacco-free society, cf. the proposition, page 59 (subsection 3.6.2). In the view of the court, these objectives will not be achieved by raising the age limits or by introducing a municipal licensing scheme."
"In assessing whether there is a fault in the factual basis relating to the assessments of whether the use of snus can lead to cancer and the significance that this may have, in the view of the court, it must be taken into account that the Ministry expressly assumed that -based on the present research - it was not possible to determine how large the risk increase for using snuff will be in order to get cancer. Furthermore, it must be taken into account that the Ministry, in its assessment, took into account that the risk would depend on the usage pattern and type of product. The latter must also be seen in relation to the fact that the studies carried out have had information regarding exposure to a limited degree, cf. the explanation by Jan Alexander regarding this and the Norwegian Institute of Public Health report, page 12. These clarifications contribute, in the view of the court, to creating a more complete and correct picture of the risk that using snuff can lead to cancer. Furthermore, the Court can also not see that there are any errors in the factual basis underlying the measure as a result of the fact that when assessing the available research, the Norwegian Public Health Institute included research, not only regarding snuff, but also on other smokeless tobacco, and we refer here to the fact that there were objective reasons for including studies on other types of smokeless tobacco."
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.
Swedish Match Ltd. ("Swedish Match") sought an injunction in the Oslo County Court to suspend Norway's plain packaging laws for 'snus' (oral tobacco) while it brought a full challenge to the law. The Norwegian law requires plain packaging for cigarettes, hand-rolled tobacco and snus. Swedish Match is the main producer of snus in Europe and Scandinavia. The key legal basis for the claim is that the law violates the EEA Agreement (the trade agreement with the European Union) because it is an unjustified restriction on the trade in goods. Swedish Match argued that snus is the least harmful smoke-free tobacco product on the market and that the government had not considered how important snus is as a harm-reduction product. They claimed it was wrong to treat cigarettes and snus equally in their packaging requirements and that there was no evidence that plain packaging would work to reduce tobacco use.
The Oslo County Court dismissed the application ruling that plain packaging is both suitable, appropriate and necessary and that it does not involve any arbitrary discrimination or hidden trade restriction. Swedish Match was ordered to pay all the government's legal costs.