On 4 May 2016, the Court of Justice of the European Union (the "ECJ") issued three judgments confirming the validity of Directive 2014/40/EU of 3 April 2014 "on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products" (the "TPD") (ECJ, Case C‑358/14, Poland v. European Parliament and Council of the European Union; ECJ, Case C‑477/14, Pillbox 38 (UK) Ltd v. The Secretary of State for Health; ECJ, Case C‑547/14, Philip Morris Brands SARL and Others v. Secretary of State for Health).

The ECJ's review focused on the following aspects of the TPD:

  • the prohibition of menthol cigarettes (Article 7 of the TPD);
  • the standardisation of packaging and labelling rules (Articles 8 through 16 of the TPD); and
  • the special rules for electronic cigarettes (Article 20 of the TPD).

Menthol Cigarettes

Regarding the prohibition of menthol cigarettes, the ECJ considered that tobacco products containing a characterising flavour (whether menthol or another flavouring) incite and sustain the consumption of tobacco products. Flavoured tobacco products are more attractive to consumers. Therefore, the ECJ held that the prohibition of menthol cigarettes is an adequate measure to reduce the product's attractiveness and discourage tobacco use. Moreover, the ECJ considered that less restrictive measures would not be equally suitable for achieving the TPD's objective.

Standardisation of Labelling and Packaging

The ECJ reached the same conclusion regarding the TPD's rules governing labelling and packaging. The TPD prohibits the inclusion of any element or feature promoting or encouraging the use of a tobacco product, even if such element is factually accurate. The prohibition targets (i) the labelling of the unit packages; (ii) the outside packaging; and (iii) the tobacco product itself. The ECJ held that this prohibition is designed to protect consumers against the risks associated with tobacco use and does not go beyond what is necessary to achieve the objective pursued. According to the ECJ, this conclusion equally applies to the TPD's rules relating to (i) the integrity of health warnings after the packet has been opened; (ii) the position and minimum dimensions of the health warnings; (iii) the shape of unit packets of cigarettes; and (iv) the minimum number of cigarettes per unit packet.

Electronic Cigarettes

Finally, the ECJ upheld the TPD's special rules for electronic cigarettes, which are less strict than those applicable to tobacco products. As electronic cigarettes display different objective characteristics, the ECJ held that the special rules for electronic cigarettes are in line with the principle of equal treatment. Moreover, the specific requirements applicable to electronic cigarettes (including the pre-marketing notification requirement, specific warnings, leaflet requirement and prohibition on advertising and sponsoring) are not inappropriate or disproportionate to attain the objective pursued.

Subject to a few exceptions, EU Member States should apply the national implementing measures of the TPD as from 20 May 2016.

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