The Queen on the Application of Sinclair Collis Ltd v. Secretary of State for Health et al.
The Court of Appeal rejected an argument that a ban on cigarette vending machines would not result in a reduction in smoking rates. The vending machine operators had argued that a law banning cigarette vending machines contravened provisions of the Treaty on the Functioning of the European Union regarding restrictions on imports. In the alternative, they argued for a less restrictive measure of fitting machines with age restriction mechanisms because there was no evidence of a causal link between a complete ban and decreased smoking. In rejecting the argument that there was a lack of evidence, the Court noted the provision in the FCTC Article 13 Guidelines that states "vending machines should be banned because they constitute by their very presence a means of advertising or promotion under the terms of the Convention."
Regina (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437 (17 June 2011).
United Kingdom
Jun 17, 2011
High Court of Justice Court of Appeal (Civil Division)
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 any form of direct or indirect tobacco advertising, promotion and sponsorship.
(See FCTC Art. 13)
Substantive Issues
None
Type of Tobacco Product
None
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"So the issue comes down to deciding whether the Regulations imposing a ban are
disproportionate because the Secretary of State failed to consider or adopt an
alternative measure, namely a voluntary code, which would undoubtedly be
substantially less onerous, but which would, to put it at its lowest, quite conceivably
be less effective in achieving the aim of the ban. That issue must be decided by
reference to the various circumstances and principles discussed above.
At least on the face of it, particularly in the light of the margin of appreciation
afforded to the Government in the light of the nature of the decision in this case, it
seems to me that it would be wrong for the court to overturn the ban simply on the
basis that the Secretary of State should have addressed the possibility of, or tried
out, a voluntary code before opting for a ban. It would be taking the law further than
it has been taken by the Court of Justice if we were to hold that a Government
measure infringed proportionality simply because another, less onerous, alternative
was not considered, in circumstances where it is apparent that the Government
reasonably took the view that that alternative would significantly fall short of the
measure in terms of achieving the aim sought to be achieved."
"Fourthly, a voluntary code would have no benefits for adult smokers. They would be as easily able to purchase cigarettes from a TVM as they are currently (save that they would have to ask the controller to unlock the TVM). Whereas, under a ban, adult smokers would, of course, be unable to purchase cigarettes from TVMs. Again the extent of the benefit of a ban on adult smokers is a matter of speculation, but it is not unreasonable for the Secretary of State to take the view that there would be some reduction in adult tobacco consumption simply because one source of supply, namely every TVM, has been eliminated."
"Thirdly, a voluntary code would probably be more difficult to enforce than a ban (or indeed than a regulatory code based on the use of ARMs, which was the Secretary of State’s preferred approach before 12 November 2009). It would presumably be easier to check whether an unlawful TVM was present, than to see whether a TVM was ARM-controlled effectively. A voluntary code would, almost by definition, carry no sanctions, whereas a ban obviously could and would. A ban would, by definition, apply to everyone, whereas a voluntary code would only apply to those who accepted it: thus, if, as anticipated, it would be operated by NACMO, it would not, at least necessarily, apply to TVM operators who are not NACMO members. The trial on the effectiveness of voluntary use of ARMs is of very limited persuasive value for the reasons given by Arden LJ in para 106 above. However, if a voluntary code was introduced, there must be reasonable prospect that it would be strictly adhered to, given that, if it did not work, a ban would be likely to follow. Nonetheless, I find it hard to quarrel with the rationality of the Secretary of State’s statement in the letter quoted at para 103 above that “[p]rohibition would be easier and cheaper to enforce than imposing restrictions”, particularly if those restrictions are voluntary."
"Secondly, under a voluntary code, there would be controllers who might be persuaded to unlock a TVM because they were deceived, negligent or uncaring. As already mentioned, this is answered by the appellants’ point that there will equally be over-the-counter retailers who are deceived, negligent or uncaring, and would sell cigarettes to under-18 year olds who were unable to purchase from TVMs. Thus, it is conceivable that any potential purchaser under the age of 18, who would have been able to persuade a controller to unlock an ARM-controlled TVM would, if TVMs were banned, be equally well able to purchase cigarettes over the counter in the event of a ban. However, one does not know whether the controllers of ARM-controlled TVMs would be the same people as those who sell over the counter. Common sense suggests that not all those who would be controllers if there was a voluntary code, would be over-the-counter retailers if there was a ban. It seems to me to be by no means fanciful to think that a person selling tobacco over the counter will be more careful to check on a customer’s age than a person controlling an ARM-controlled TVM. The former person’s job would normally require him or her to concentrate on customers in a shop or supermarket, whereas the latter person would often, no doubt, have many functions, which did not involve retail customers at all."
"First, as already mentioned, it is likely that there will simply be fewer sources of supply of tobacco if TVMs are outlawed. It is possible that at least at some locations where a TVM existed, a new source of supply (a legal over-the-counter, or an illegal, supplier) will start up, but it seems unlikely in the extreme that this will occur in all, or even virtually all, locations. As a matter of elementary economic logic, it is not really possible to stigmatise as unreasonable the notion that fewer children, and indeed fewer adults, will have access to tobacco if one source of supply, namely every TVM, is removed. In addition to the FIA, there is the evidence in these proceedings referred to in para 172(l) above that many under 18-year olds will not switch from TVMs to other sources of cigarettes if TVMs are banned.
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 Court of Appeal rejected an argument that a ban on cigarette vending machines would not result in a reduction in smoking rates. The vending machine operators had argued that a law banning cigarette vending machines contravened provisions of the Treaty on the Functioning of the European Union regarding restrictions on imports. In the alternative, they argued for a less restrictive measure of fitting machines with age restriction mechanisms because there was no evidence of a causal link between a complete ban and decreased smoking. In rejecting the argument that there was a lack of evidence, the Court noted the provision in the FCTC Article 13 Guidelines that states "vending machines should be banned because they constitute by their very presence a means of advertising or promotion under the terms of the Convention."