Tobacco firms no match for Court of Justice

Date: 12/12/02

By Karen Carstens

TOBACCO companies were choked this week after the European Court of Justice (ECJ) ruled that tough new health warnings must be prominently displayed on their products.

But David Byrne, the health and consumer protection commissioner, and MEPs who fought for the measures, were ecstatic.

"The industry took us to court as usual, and yet again has had to bite the dust," said Dutch Liberal MEP Jules Maaten. "From today onwards, Europe is more advanced than any other part of the world in combating tobacco addiction."

The ECJ reached its decision on Tuesday (10 December), in the wake of a challenge mounted against the Tobacco Products Directive by British American Tobacco (BAT) and Imperial Tobacco in September 2001.

Under the ruling, the terms "light" and "mild" are banned from cigarette packets - even if they are part of a brand name, such as Marlboro Light. In addition, health warnings must cover 30 of the front of packets and 40 of the back.

In member states with more than one official language, such as Belgium, these figures are even higher, said Byrne spokesman Thorsten Münch. Because Belgium has three official languages - French, Flemish and German - 35 of the front and 50 of the back of packets must be covered, he said.

There was, however, a partial victory for the tobacco companies. Restrictions on the use of "descriptors" such as "light" and "mild" do not apply to products intended for sale outside the EU. Around 90 of cigarettes made by BAT, the world's second-biggest tobacco producer after Philip Morris, are produced for export markets.

Otherwise the ruling leaves the directive intact. Besides the more prominent warnings to be displayed on packets, it limits the tar, nicotine and carbon monoxide content of cigarettes. The new ceilings - 10 milligrams (mg) per cigarette for tar, 1mg per cigarette for nicotine and 10mg per cigarette for carbon monoxide - will apply to products sold worldwide.

The rules come into force on 1 January 2004 for cigarettes sold in the EU and 1 January 2007 for cigarettes produced for export. Michael Pridaux, BAT's corporate and regulatory affairs director, was clearly disappointed by the ECJ verdict. "Export bans have been virtually unknown since the height of the Cold War," he said. "A new chapter in EU trade policies has been opened up by its decision to uphold the ban on manufacturing export products which do not meet the directive's specifications for products to be sold within the EU."

Tom Roberts, a BAT spokesman, said the Commission had acted "outside of its remit" as public health matters are usually the domain of member states alone.

The same criticism has been voiced against another directive, which banned tobacco advertising on the radio, in newspapers and on the internet and was approved by health ministers earlier this month. Münch said that Belgium, Spain, Finland and Sweden had met a 30 September deadline to adopt the Tobacco Products Directive measures, while Germany and France were about to do so. Other member states have yet to report back to the Commission.

Besides warnings on packets, member states can also use pictures of shrivelled lungs or blackened teeth to raise awareness of the perils of smoking.

Such graphic warnings - which Maaten called "a very exciting possibility" - are already used in Brazil and Canada.

"Studies show that 44 of Canadian smokers claimed that the stark illustrations had increased their motivation to stop smoking," he said, adding that "Australia and Thailand are also considering it, along with the World Health Organization".

The European Court of Justice ruled on 10 December 2002 that tough new health warnings must be prominently displayed on tobacco products.