Update on the challenge to the ban on snus – next step, the European Court of Justice

NNA has succeeded in its request to join the challenge against the ban on snus in the UK and the EU.

The High Court agreed on 26th January that the challenge can be referred to the European Court of Justice. There were two issues before the court.

Swedish Match initiated the challenge to the ban and asked the High Court for a Judicial Review of the legislation. The case was brought against the Secretary of State for Health. The Department of Health opposed the application for Judicial Review on the grounds that it was out of time – they argued that the case should have been brought in 2014 when the Tobacco Products Directive was passed. SM argued that it could not bring a challenge against the law until the EU Directive had been passed into UK law in 2016. The Department of Health did not raise substantial challenges to the details of the Swedish Match case.

NNA’s Gerry Stimson and Jessica Harding were in the court and as the judge spoke it gradually became clear that there would be a positive result. Mrs Justice Lang agreed with SM’s argument that a challenge could only be brought once the law had been passed in the UK. So she agreed that the case could be referred. She then turned to NNA’s case. We asked to be joined to the case as a third party intervenor acting in the public interest and adding important consumer and health rights arguments. Neither Swedish Match nor Department of Health lawyers objected to our application and the judge agreed that we could be joined to the case.

Because the UK law is based on EU Tobacco Products Directive, the case now has to be referred to the European Court of Justice. So we get a chance to put our view at the ECJ. The UK government has signalled its intention to leave the ECJ post-Brexit, but as of now EU legal processes prevail. The advantage of getting this into the EU legal process is that if the ECJ rules in our favour and against the ban, the ECJ decision applies across the whole of the EU, not just the UK.

It will take about a month for the UK to prepare the case to be sent to the ECJ, and the ECJ will likely take up to 18 months to come to a decision – so there is a long way to go yet!

Even getting this far is a triumph for a new, small consumer advocacy group. NNA was only founded in 2015, is a small group of volunteers and has few financial resources. This shows the potential for consumer advocacy groups to make a noise and make a change. Thanks to everyone who is supporting this NNA campaign to get availability of a wide range of lower risk nicotine products.

Testimony to the Norwegian Parliament on the relative risk of snus from Professor Anders Milton, ex President of the World Medical Association.