NNA snus ban challenge - update May 2017 - New Nicotine Alliance UK

European Court of Justice sends legal arguments out for comment

More progress with our case against the ban on snus: the European Court of Justice has now sent the legal arguments out for comment.

In January the High Court in London ruled that Swedish Match and NNA could take their challenge against the UK and EU ban on snus to the European Court of Justice, in Luxembourg.

The documents setting out the legal arguments were agreed between Swedish Match, the UK Department of Health (as defendant) and NNA, approved by the High Court and sent to the European Court of Justice. You can view them here.

This first stage is in itself a major success: there are few referrals to the ECJ, and even fewer involving an NGO such as NNA.

The ECJ has now requested comments on the legal issues (see below).

The Swedish Match legal challenge against the ban on snus

Swedish Match – the main manufacturer of Swedish snus – brought the challenge in the UK High Court. Their legal argument is that the law discriminates against snus compared with cigarettes and with lower risk nicotine products, that the ban is disproportionate, is against the EU principle of subsidiarity in removing national regulatory discretion, breaches the duty to give reasons for the ban, and is an unjustified restriction on the free movement of goods.

The NNA legal challenge against the ban on snus

NNA is acting as a third party in the public interest – in legal terms it is an independent ‘intervenor’.

NNA argues that the ban on snus is (a) disproportionate in that it is incommensurate given the low risk of snus compared other products on the market, and (b) contravenes the right under EU law to a high level of health protection.

Significantly, for the first time in a challenge against UK (and EU) tobacco legislation, NNA argues that the ban infringes human rights. NNA argues that the ban contravenes the EU Charter of the Fundamental Rights with respect to Art 1 on ‘human dignity’, Art 7 on ‘respect for private and family life’, and Art 35 on ‘health care’.

Art 35 stipulates that a high level of human health protection shall be ensured in the EU policies and activities. NNA argues that the snus ban is wrong as it prevents smokers from having access to a safer product and is an unsuitable means for achieving a high level of health protection. We consider that the EU legislators misinterpret health protection as meaning only protection from risks from products, whereas it should have considered a product such as snus in helping people to protect themselves from risks through the choices they can make to avoid smoking.

See here for more details of NNA’s legal case and the documents filed in the High Court.

Progress with the case

The High Court agreed on Jan 26th 2017 that there was a case for a review of the legislation. NNA’s request to be joined to the case was allowed by the High Court.

Because the UK law – the Tobacco and Related Products Regulations 2016 – is based on the EU Tobacco Products Directive 2014, the case was referred by the High Court to the European Court of Justice.

The ECJ has initiated the first steps in the legal review (case C151/17).

The ECJ has now sent out the case for comment to EU member states, the European Commission, Parliament and Council, and EFTA states. All these parties are able to make a submission to the ECJ commenting on the legal issues that we have raised: their comments have to be received by ECJ by 7th July.

When comments have been received back they will be reviewed by the court. It is likely that the actual case will be heard in Luxembourg at the end of the year or the beginning of next year.

Implications of the case

The ECJ ruling will apply across the EU, not just the UK
Referrals to the ECJ are uncommon – to get this far is a significant achievement for an NGO.
For the first time a ‘right to health argument’ has been lodged as a challenge to tobacco control legislation.

For more details of the argument that the ban on snus infringes the right to health see here

Watch this space!