Standardised Packaging: Tobacco industry claims for compensation "blown out of the water"

On the day MPs are debating the Regulations prior to a vote, a Legal Opinion has been published which concludes that standardised (“plain”) packaging of cigarettes and other tobacco products is compatible with European law, and compensation would therefore NOT be due the tobacco industry. The talk is not about buying cigarettes online.

The Opinion was commissioned by Action on Smoking and Health (ASH) and Cancer Research UK from Alberto Alemanno, Jean Monnet Professor of Law at HEC Paris and Global Clinical Professor at NYU School of Law, and Amandine Garde, Professor of Law at Liverpool University. They conclude that: “In this Legal Opinion, we have focused on the compatibility of the UK draft Standardised Packaging of Tobacco Products Regulations with EU law.

We concluded that all the packaging requirements they propose are compatible with both the EU TPD and, more generally, EU law.” They also state that: “Our analysis suggests that the UK Department of Health enjoys a broad margin of discretion to introduce a standardisation scheme of tobacco products… The evidence supporting standardised packaging keeps accumulating. The Chantler Review [3] adds to the calls for standardised packaging … The UK’s proposed regulations and its Impact Assessment draw on this evidence and present it is as clearly as possible [given] the conditions the TPD and the EU Treaties lay down to determine the validity of a national scheme standardising tobacco products.”

The Opinion also states that the Regulations are lawful under EU law relating to trademarks, and “fundamental rights”, both of which do not prevent Member States from introducing legislation to protect public health.

The tobacco industry has claimed that the industry would be due billions of pounds in compensation [4] if standardised packaging were to proceed in the UK, but this Opinion demonstrates these claims are not substantiated.

Professor Alemanno said:

“Our analysis demonstrates that under current EU law the UK Government is entitled to regulate the packaging of tobacco products well beyond what the EU prescribes. The UK government therefore enjoys considerable freedom of action in regulating the presentation of tobacco products, particularly given the overwhelming evidence of the harm that tobacco consumption causes. There is also a carefully established and strong evidence base supporting the introduction of standardised packaging. For these reasons, we believe that any challenge by the tobacco industry against standardised packaging under European law is unlikely to succeed.”