The Queen on the Application of Swedish Match AB, et al. v. Secretary of State for Health

A snus manufacturer challenged on several bases the validity of a provision in Directive 2001/37/EC that directs member states to prohibit the marketing of any tobacco products designed for oral use, except those tobacco products designed to be smoked or chewed. The Court held that the Directive properly derived its authority from Article 95 EC, which provided the community with rule-making authority to ensure the internal consistency of the community market. The Court further held, among other things, that: (1) adoption of the Directive was supported by sufficient scientific evidence; (2) the Directive satisfied the principle of proportionality; (3) sufficient reasons existed to treat oral tobacco differently from chewed tobacco at the time of the Directive's adoption; (4) a claim to a right to property could not be based upon denial of a market share; and (5) the Directive's interference with the freedom to pursue an economic activity was justified by the concerns guiding adoption of the Directive. 

The Queen on the Application of Swedish Match AB, et al. v. Secretary of State for Health, Case C-210/03, Court of Justice of the European Union (2004).

  • European Union
  • Dec 14, 2004
  • Court of Justice of the European Union
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Parties

Plaintiff

  • Swedish Match AB
  • Swedish Match UK Ltd
  • The Queen

Defendant Secretary of State for Health

Legislation Cited

Directive 2001/37/EC, Tobacco Products Directive

Tobacco for Oral Use (Safety) Regulations 1992

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

"It follows from the above considerations that, with respect both to the objective of ensuring a high level of protection of human health given to the Community legislature by Article 95(3) EC and to its obligation to comply with the principle of proportionality, the contested prohibition cannot be regarded as manifestly inappropriate."
"With regard to Article 8a inserted in Directive 89/622 by Directive 92/41, it is apparent from the preamble to the latter directive that the prohibition of the marketing of tobacco products for oral use was the only measure that appeared appropriate to cope with the real danger that those new products would be used by young people, thus leading to nicotine addiction, with those products causing cancer of the mouth in particular. Swedish Match essentially submits that, having regard to the state of the scientific information available to the Community legislature in 2001, when Article 8 of Directive 2001/37 was adopted, on which it moreover relied in amending the rules governing the warning referred to in Article 5(4) of that directive, maintenance of the prohibition of marketing tobacco products for oral use was disproportionate in relation to the objective pursued and did not take account of the development of that scientific information. The answer to that argument must be that, while some experts could from 1999 call into question the assertion that, as the 16th recital in the preamble to Directive 92/41 puts it, ‘these new products cause cancer of the mouth in particular’, all controversy on that point was not eliminated at the time of adoption of Directive 2001/37. Moreover, while part of the scientific community accepted that tobacco products for oral use could be used as substitute products for cigarettes, another part challenged the correctness of such a position. From that situation it must be inferred that the scientific information which could have been available to the Community legislature in 2001 did not allow the conclusion that consumption of the products in question presented no danger to human health. Moreover, like all other tobacco products, those for oral use contain nicotine, which causes addiction and whose toxicity is not disputed."