TOBACCO CONTROL LAWS

Tobacco Co. v. Respondent

In 2021, the Munich Administrative Court rejected an application by a tobacco wholesaler who objected to the ban on nicotine pouches. The court stated that nicotine pouches are classified as novel foods, and they have a nicotine content higher than the dose recommended by the European Food Safety Authority. In this matter, the Higher Administrative Court rejected an appeal by a wholesaler against an order prohibiting it from bringing nicotine pouches onto the market. The Court upheld that nicotine pouches are classified as foods containing the unauthorized novel food ingredient nicotine, and therefore they cannot be placed on the German market without novel food authorization.

Tobacco Co. v. Respondent, 5 Bs 56/21 (Hamburg Higher Admin. Court 2021).

  • Germany
  • Aug 19, 2021
  • Hamburg Higher Administrative Court
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Parties

Plaintiff Tobacco company based in Hamburg

Defendant Respondent

Legislation Cited

Lebensmittels-, Bedarfsgegenstände- und Futtermittelgesetzbuch (LFGB) (Food and Feed Code)

International/Regional Instruments Cited

Regulation (EC) No 178/2002
Regulation (EU) 2017/625

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
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.

Tobacco Control Topics

Industry Interference
Measures to protect health policies from the commercial or other vested interests of the tobacco industry. (See FCTC Art. 5.3)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Commerce
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.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Reactionary Regulation
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.

Type of Tobacco Product

Oral nicotine products (non-medicinal)
Products not containing tobacco designed for nicotine absorption through the mouth. Examples include nicotine pouches, nicotine lozenges, and nicotine sticks. Oral nicotine products do not include any nicotine product approved by the government as nicotine replacement therapy.
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