NNA’s legal case: snus and the right to health
Tobacco harm reduction is consistent with the broad public health aim of enabling people to take action to reduce risks to their health. They cannot do that unless they have access to the resources that help them do this. That is why a ban on snus is inconsistent with helping people to lead healthier lives. Snus has to be legalised because snus saves lives.

Gerry Stimson
The NNA legal case is the first time that a ‘right to health’ argument has been used to challenge a bad tobacco control law. We hope that this example might be a springboard for challenges in other countries.

The NNA has joined the action against the ban on snus as a third party in the public interest – in legal terms it is an independent ‘intervenor’. The initial legal action was taken by Swedish Match (see Snus legal case timeline).

The NNA’s case to the European Court of Justice is based on EU law and the EU Charter of Fundamental Rights (CFR) [1]. We argue that the ban on snus is disproportionate, and that it is contrary to the right to health. Given the evidence that snus is substantially safer than smoking cigarettes, and that it protects against smoking, it is not only unethical but also contrary to EU law to deny access to this product.

The NNA supports the idea of tobacco harm reduction, in offering smokers and would-be smokers low risk alternatives to smoking. It is as an approach that is preferable to an abstinence only strategy, which is in effect a ‘quit or die’ approach. The current scientific evidence, and the fact that Sweden, where snus is used, now has the lowest lung cancer and tobacco-related mortality in Europe, indicates that snus is a suitable and appropriate product for individuals who are seeking to avoid smoking and other combustible tobacco products.

Human dignity, and Respect for private and family life

The NNA also accepts that many people like using nicotine and thus – especially if lower risk forms of nicotine are available - there must be major limitations on the ability of the state to interfere with that choice. The availability of snus is an aspect of personal health and personal autonomy by which consumers can avoid the health hazards of smoking.

The NNA submits that the ban on snus contravenes those articles in the Charter of Fundamental Rights of the European Union (CFR) that protect autonomy and choice - Articles 1 (human dignity) and Article 7 (respect for private and family life).

Article 1 of the CFR is an overall obligation to respect human rights, and protects ‘human dignity’. The issue of dignity is linked to personal autonomy: a principle by which individuals make choices on the conduct of their life, which presupposes a range of choices.

Article 7 on ‘respect for private and family life’ is a broad-ranging right that is often closely connected with other rights regarding freedom to act such as freedom of religion, freedom of expression, freedom of association and the right to respect for property. Article 7 has been held to apply to issues of quality of life, self- determination, a right to establish relationships, self-identity, choices in relation to medical treatments to prolong life, and decisions on parenthood by insemination techniques.

Health protection and the Right to Health

The NNA further argues that people have a right to protect themselves to avoid ill-health. European states are obliged to further the health of their citizens. The preamble to the European Social Charter [2] states that: ’Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’ and Article 11 requires states to take measures to prevent disease and to encourage individual responsibility in matters of health.

Moreover, all EU law must take into account ‘health protection’. Facilitating a high level of health protection is required under Title XIV of the Treaty of Lisbon which states that ‘A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’.

A high level of health protection is relevant to all EU legislation including the Tobacco Products Directive. We have argued in our submission to the High Court and the European Court of Justice that health protection includes not only protection from health threats but also includes enabling people to make choices that help them avoid ill-health.

The EU Charter of Fundamental Rights stipulates in Article 35 that a high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities. The NNA argues that the EU legislators based the law on a limited understanding of ‘health protection’ in violation of Article 35. By banning tobacco for oral use, the EU prevents access to a product that significantly reduces harm to consumers as compared to cigarettes. The EU legislators, we believe, took a narrow definition of ‘health protection’ to mean protection from products, whereas it should have taken a broader public health definition to include making it possible for people to take action to avoid ill-health through the choices they make.

A similar argument may be made on the basis of other international treaty obligations.

The International Covenant on Economic, Social and Cultural Rights [3], has been ratified by 165 countries including all EU states. Article 12 recognizes: ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ and that States Parties must take steps regarding ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases.’ This has been interpreted by the UN Special Rapporteur on the Right to Health to include access to harm reduction resources for people who use drugs [4]. We similarly argue that Article 12 includes access to tobacco harm reduction resources, ie safer nicotine products.

Tobacco harm reduction is also consistent with obligations in the international treaty on tobacco control. All European Union states are signatories to the Framework Convention on Tobacco Control (FCTC), the international health treaty that aims to reduce the use of tobacco [5]. The preamble to the FCTC notes obligations (as mentioned above) under the Article 12 of the International Covenant on Economic, Social and Cultural Rights. Moreover Article 1d of the FCTC specifically refers to harm reduction as one of the defining strategies of tobacco control, which is: ‘a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke’.

As mentioned above the European Social Charter requires states to encourage individual responsibility in matters of health. This view links to a basic principle of public health, which is one of creating the conditions in which people can lead healthier lives. In particular, as stated in the constitution of the World Health Organisation [6], that: ‘Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people.’ [6] Empowering individuals and communities to take control of their health is a fundamental principle of public health, as set out in the WHO Ottawa Charter on Health Promotion [7].

See here for the written observations submitted to the European Court of Justice on behalf of NNA [LINK]
  • [1] Charter of Fundamental Rights of the European Union (2000/C 364/01)
  • [2] European Social Charter
  • [3] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
  • [4] Open Letter by the Special Rapporteur on the right of everyone to the highest attainable standard of mental and physical health, Dainius Pūras, in the context of the preparations for the UN General Assembly Special Session on the Drug Problem (UNGASS), which will take place in New York in April 2016.
  • [5] Framework Convention on Tobacco Control
  • [6] Constitution of the World Health Organisation
  • [7] Ottawa Charter on Health Promotion. World Health Organization 1986