The prohibition in stages at EU level on cigarettes and roll-your-own tobacco containing a flavouring is valid, the EU Court of Justice ruled on Wednesday 30 January (Case C-220/17).
The German company Planta Tabak, which manufactures and markets flavoured roll-your-own tobacco products, has challenged before the German courts the application to its products of certain national provisions relating to the prohibition of flavours, shock photos and the prohibition of advertising of flavours. These provisions transpose the Tobacco Products Directive (2014/40/EU).
When the Berlin Administrative Court referred the matter to it, the Court ruled against Planta Tabak. It notes that the gradual ban established in the Directive - 20 May 2016 for flavoured cigarettes and roll-your-own tobacco with an EU-wide sales volume of less than 3%, and 20 May 2020 for the same products with a sales volume exceeding 3% (see EUROPE 11554) - is valid.
The fact that the Directive does not provide for a specific procedure for determining products with sales volumes exceeding 3% does not mean that the principle of legal certainty is not respected, according to the Court, since that procedure must be established by the Member States concerned.
According to the EU judge, the distinction on the basis of sales volume is objectively justified and does not infringe the principle of equal treatment. The European legislator was entitled to give consumers of the most widespread products in the EU the time necessary to consume other products.
Moreover, in the Court's view, the prohibition on the placing on the market of tobacco products containing a flavouring does not clearly go beyond what is necessary to guarantee a high level of public health, particularly for young people, and therefore does not infringe the principle of proportionality. Some flavoured tobacco products are particularly appealing to young people.
The EU judge also considers that the contested prohibition constitutes a restriction on the free movement of goods justified by weighing its economic consequences against the need to guarantee a high level of health protection. And economic operators have had enough time to adapt over two years.
As for the prohibition on the use of information referring to a taste, smell, aroma or other additive, the Court points out that this prohibition also applies to non-commercial information.
Finally, as regards the prohibition on the use of marks referring to a flavouring on the labelling of packaging units, the outer packaging and the tobacco product itself, the Court finds that this restriction amounts only to a limitation of the right of ownership and not to a deprivation of that right. Owners retain the freedom to use trademarks in other ways, including through wholesale. Here again, the objective is to guarantee a high level of public health protection. (Original version in French by Mathieu Bion)