We have reached a new stage in our challenge to the ban on snus.
The background: The sale of snus is banned throughout the EU, except for in Sweden. Swedish Match, the leading snus manufacturer, initiated a challenge against the ban. On 26 January 2017 the High Court in London ruled that the challenge should be heard at the European Court of Justice and that NNA could join the challenge as intervenor. On 25 January 2018 the case was heard at the European Court of Justice in Luxembourg.
NNA was represented in court by Paul Diamond, QC. Also present on behalf of NNA were Professor Gerry Stimson, expert witnesses Karl Lund and Lars Ramström, Atakan Befrits - the Chair of NNA Sweden and member of INNCO secretariat, Bengt Wiberg and Uwe Hille from the snus community, and Jessica Harding, NNA administrator. Professor Martin Jarvis was also there, as expert witness for Swedish Match.
The ban was defended in court by Counsels for the UK government, the government of Norway, the European Parliament, the European Council and the European Commission. This being a challenge to EU law most of the arguments focused on proportionality and whether the ban is manifestly inappropriate (“A measure is only manifestly incorrect when judged against the information available at the time of the adoption of the rule.”). The principle of proportionality requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question.
Seven judges faced the courtroom from a distant row at the front, including the Judge-Rapporteur and the Advocate General. The court was reasonably crowded but far as we could tell the only consumers in the court were those in our party. We’d attracted some unwanted attention from the chief security guard when we were trying to film outside the court (“No Facebook! No Twitter!”), so he followed us into the hearing to keep his beady eye on us.
Each party had fifteen minutes to give their oral observations, where they could respond to the Written Observations which had been submitted previously by the other parties. The Counsels acting for Swedish Match were up first, followed by Paul Diamond for NNA, then the Counsels for the UK Government, the Government of Norway, the European Parliament, the European Council and the European Commission.
What follows are some brief notes on some of what was said:
Swedish Match argued that snus has a lower health risk than the other products covered by the directive (TPD), that snus has a positive effect on public health (“the Swedish experience”), that the FCTC covers all tobacco products so all should be regulated, that there is no product that is completely safe for everyone in all circumstances, that the EU legislator had failed to do a proper assessment and failed to analyse the evidence correctly, that the ban was discriminatory, irrational and disproportionate.
NNA’s Paul Diamond was up next. The court heard that NNA was there to represent the people who hadn’t been asked - the smokers - and to assert the right to be able to choose a safer alternative. Paul argued that the ban is disproportionate, that it infringes on the right to health of citizens, and that it is contrary to the harm reduction purpose of the WHO Framework Convention on Tobacco Control. He told the court that snus protects people from smoking, that it is not new and the effects have been well researched. He welcomed seeing that the government of Norway was represented in court, and asked whether Norway’s recently reported drop in smoking rates and rise in snus use could have been possible were Norway an EU state. He concluded that the court bore a heavy responsibility as thousands of lives would be affected.
Counsel for the UK Government
The UK argued in favour of upholding the ban. This was baffling - and very disappointing - as the recent tobacco control plan states that “the government will continue to embrace developments that have the potential to reduce the harm caused by tobacco use” and the UK government policy with regards to electronic cigarettes is (relative to other countries) extremely progressive and liberal. The UK observations here focused on proportionality. We heard that snus is highly addictive, that it has harmful effects, that it may be a gateway to tobacco use, that the scientific evidence is disputed so falls within the “margin of discretion” allowed to the legislators. Lifting the ban would allow an addictive product onto the market and would prevent the legislator from protecting public health. The UK counsel argued that we should take note of the “evidence-based FCTC” and “the law must prevent the initiation of a tobacco product by young people”. Also, that commercial interests cannot override public health risks of a product that might be harmful to the young, and the protection of human health has priority over economic interests.
Counsel for the Norwegian government
Norway also defended the ban. We heard that Norway’s goal is for a tobacco free society, so the rapid increase in the use of snus in Norway is of serious concern to the Norwegian government, its use by young people in particular, and that the government views it as “an epidemic”. In a relatively emotive presentation the lawyer asserted that “there is no doubt” that snus is highly addictive, harmful and may cause cancer. Their view is that oral tobacco can be an entry point to addiction. The Norwegian success in reducing smoking prevalence is, the counsel said, due to anti-tobacco measures rather than to snus. He asserted that NNA couldn’t show a direct causal link between the use of snus and the decline in smoking. Also, that there is an ethical concern about harm reduction theory – is it fair to use young people as an experiment in order to protect others against a more harmful product?
Counsel for the European Parliament
We heard that: The impact assessment on the EU was that “snus is a toxic and addictive product” and that the 2004 case (the last time the ban was challenged) is still relevant. A high level of protection of human health is required, and the FCTC requires the EU to prevent the initiation of, and to decrease the consumption of, tobacco products. Credit for reducing the risk of smoking in Sweden is due not to snus but to tobacco control and healthy living. Snus complicates attempts to quit and promotes dual use. The present case we were told relies on studies by a single scientist whose conclusions do not reflect the view of the scientific community and as expressed in SCENHIR and IARC. “Lifting the ban would have irreversible effects”. Less restrictive measures would not provide a high level of health protection. “The proven harmfulness of tobacco consumption” means that it is in the discretionary power of the legislator to ban and it is not manifestly inappropriate.
Counsel for the European Council
Counsel argued that the ban is perfectly appropriate and proportionate. The ban provides protection of the population from snus, which is addictive and toxic, increases risk of cardiovascular death and is a risk for the foetus. The negative health effects justify the ban. This was the scientific evidence at the time of the legislation.
To rely on the “so called Swedish experience” is, we were told, inaccurate because of the flaws in the data. The applicants, Counsel said, argue that there is a causal link between snus and the reduction in smoking, but this has not been proven. In Sweden women smoke as little as men yet do not use snus to the same extent. Parental leave is encouraged in Sweden and the decrease may be due to the high levels of parental leave taken by men who are less likely to smoke when looking after children. Evidence from the US, not presented by the applicants, shows that snus undermines attempts to quit smoking. The applicants have failed to demonstrate that the use of snus would reduce smoking in the European Union. Snus is less dangerous than smoking (as the NNA has shown), but Counsel argued that there is a need to weigh the potential benefits against the risks – in particular the risk of non-smoking young people taking up snus “cheered on by Swedish Match”. The original products were attractive to young people. No authorities (including WHO) argue for a lift in the ban. The Swedish government’s aim is to reduce the use of all tobacco products and the evidence does not support the lifting of the ban. “If we are going to win the fight against the tobacco epidemic we have to take action where we can”; “Snus was legitimately banned in the past”; “A guiding principle of the FCTC is of a fundamental conflict between the tobacco industry and public health”.
A lifting of the ban on snus would have far reaching and unforeseeable consequences therefore the Council requests that the court rejects the application.
Counsel for the Commission
Counsel asserted that the case in 2004 remains applicable and that there has been no fundamental change in the legal and regulatory framework or the science. Snus is a “harmful and addictive product”. “It has been argued that it is less harmful and less addictive” [than smoking] but relativizing harm is a distraction to direct attention away from the harms of snus. The claim that snus is harmful has already been established and is manifest from studies included in the EU impact assessment.
The written observation (submitted to the court) from Finland is that snus is highly addictive and a reversal of the policy would send a negative signal. The FCTC requirements indicate the need to uphold the ban. The objective is to reduce all forms of tobacco consumption.
Snus is addictive therefore the ban is the most effective measure.
There is a market potential for snus. The product has been marketed to young people in the past. It is a particular problem because snus can be used surreptitiously eg by children at school and it may be a gateway to smoking. The Commission data leads to the conclusion regarding the Swedish experience that there is a lack of causal link between snus and the decline in smoking.
It is acknowledged that NNA may wish to help existing smokers to give up, but, Counsel argued, legislators need to regulate for the population as a whole. Wide discretion is allowed [by legislators], hence the ban is not manifestly inappropriate.
This was followed by (largely inaudible) questions from the judges. One judge noted that there was a big discrepancy in the conclusions in the evidence offered by the institutions and the expert witnesses, and asked the Commission: “Should the Court conclude that you blend together evidence to find a solution more appropriate policy wise that accords with your view?" Another judge asked whether it might be politically difficult to lift the ban, and asked whether that had coloured the judgement of the institutions with regards to the scientific evidence. One judge questioned whether the institutions were supporting the ban because snus is harmful and addictive or because of a wish to ban nicotine. A judge proposed that snus could be sold in pharmacies only.
Each party then had five minutes to reply. NNA’s barrister stated that the NNA represents the real party here, i.e smokers and consumers, that the policy advocated here today had been to “quit or die”, that snus will save lives and that smokers are sensible and will take a safer choice if offered. He stated too that ‘dignity’ permeates the Charter of Fundamental Rights and accused those defending the ban of arrogance. He thanked the court for listening to NNA.
Other summary points were:
- Swedish Match again asserting the need to look at all the evidence, stating that there is no evidence that snus poses a greater risk to foetuses and citing the Intoxicants in Norway 2016 report, which found that the increase in snus use amongst Norwegian youth had plateaued.
- The Commission asserting that one of the problems is that people can use snus anywhere, and some people even snus while sleeping.
- The Council stating that if the ban was lifted they would pursue another type of restriction.
- Parliament “we are here especially to protect young people” and concern about tobacco company use of attractive packaging.
The hearing ended by lunchtime. We went to get lunch in the ECJ canteen and then did some filming in the rain - under the bike shelter and away from the security guards.
The Advocate General will give his opinion on 12 April 2018, after which the Court will come to a decision.
Overall it was very disappointing to witness the UK and Norway, as well as the three EU institutions, defending the ban and relying on arguments debunked long ago to do so. However, it was a relief to hear some of the judges questioning the defendants’ motives and addressing the discrepancies in evidence, and we are cautiously optimistic for a positive result.
Another plus is that this process has demonstrated that there’s a huge amount of common ground between us vapers and snus users: common themes in the arguments used against our choices are that only state sponsored tobacco control will do (quit or die and do it our way), concerns about children (unsupported by evidence), gateway concerns (unsupported by evidence) and current smokers being viewed as collateral damage in the pursuit for a tobacco free world.
We are delighted that the court hearing has led to new advocacy activity for snus, including #EUforSnus@euforsnus on Twitter, and the EUforsnus Facebook group. Please join and follow #EUforSnus: it is essential for us snus users and vapers to make our voices heard and the consumer voice will be much more potent if we join together to assert our right as adults to choose safer products.
Video of Gerry Stimson speaking with Bengt Wiberg after the hearing. "We need more carrots and fewer sticks".
Uwe Hille introducing snus to the tobacco display in the ECJ shop
Gerry Stimson outside the ECJ.
Gerry Stimson, Paul Diamond and Jessica Harding in the ECJ canteen after the hearing
Atakan Befrits, Bengt Wiberg and Uwe Hille
Karl Lund and Lars Ramström
#EUforSnus decorates goods delivered all over Europe, thanks to a member of the EUforsnus Facebook group.