EU Court Backs New German Limits on Flavored Tobacco

(CN) – A company that makes flavored roll-your-own tobacco failed to sway Europe’s top court Wednesday that its products should be exempt from German law.

Planta Tabak had taken issue specifically with tobacco laws Germany adopted in April 2016 relating to shock photographs, advertising and and prohibited flavors.

For companies with less than a 3 percent sales volume of flavored tobacco products, the law took effect in May 2016. All other undertakings meanwhile were given until 2020 to meet the requirements.

The Administrative Court in Berlin has been presiding over Planta Tabak’s challenge, but it put the case on hold for input on how properly German lawmakers had interpreted the 2014 EU directive on tobacco products.

Offering some insight Wednesday, the Luxembourg-based European Court of Justice found nothing improper about Germany applying its regulation differently for various undertakings depending on their sales volumes.

“The documents available to the court do not show that tobacco products with a particular characterizing flavor whose EU-wide sales volume is less than 3% in a particular product category are manufactured principally by small and medium-sized undertakings,” the ruling by the court’s First Chamber states. “That criterion must therefore be regarded as objectively justified.

“Moreover, it must be considered appropriate for allowing consumers adequate time to switch to other products, thus allowing the economic consequences of the prohibition in Article 7 of Directive 2014/40 to be reconciled with the requirement of ensuring a high level of protection of human health.”

The ruling also calls it undisputed that certain flavorings are particularly attractive to and tend to make smokers out of young people. Such health concerns thus demonstrate that “the prohibition of the placing on the market of tobacco products with a characterizing flavor does not go manifestly beyond what is necessary in order to attain the objective pursued.”

As to the argument that the law impinges the principle of the free movement of goods, the court found that Germany had justified its restrictions “on grounds of protection of the health and life of humans.”
The EU judges were similarly inflexible on the reach of the advertising law.

“Article 13(1)(c) and (3) of Directive 2014/40 must be interpreted as requiring the Member States to prohibit the use of information referring to taste, smell, flavorings or other additives even where that information is not promotional information and the use of the ingredients concerned is still permitted,” the ruling states.

The ruling closes with guidance on trademark restrictions.

“Since … tobacco products having a characterizing flavor facilitate initiation of tobacco consumption and affect consumption patterns, the prohibition of placing trade marks referring to a flavoring on the labelling of unit packets, the outside packaging and the tobacco product itself is liable to make them less attractive and meets objectives of general interest recognized by the European Union, by contributing to ensuring a high level of protection of public health,” the ruling states.

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