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
The ECJ's review focused on the following aspects of the
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).
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
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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