Wednesday, January 11, 2023

High Court reporters

Two tobacco companies have been granted permission by the High Court to bring a challenge over a new EU directive banning flavoured heated tobacco products used in vaping.

Ireland is set to transpose the new EU law by next July. But the country’s oldest tobacco manufacturer, PJ Carroll and Co Ltd, along with UK marketing and sales firm, Nicoventures Trading Ltd, claim the EU directive is invalid. Their challenge is against the Minister for Health, Ireland and the Attorney General.

Under previous regulations, flavoured heated tobacco products were not banned, but this was changed by the EU Commission which wants member states to transpose the ban by July 23rd.

The use of these products involve the smoker consuming what look like cigarettes but which contain half the tobacco of a traditional cigarette. They are smoked using a battery powered electronic device which heats the cigarette – rather than burns it – and a nicotine-contained aerosol is produced which the user inhales.

Cotton candy and chocolate

They can come in a wide variety of flavours such as bubble gum, chocolate and cotton candy, which critics say help attract younger users but which supporters say aid those trying to quit..

In 2021, PJ Carroll, which currently holds 10 pc of the Irish market for e-cigarettes, says it began taking steps to commercialise heated tobacco products in Ireland, including flavoured ones.

However, the company says, the banning of these products by the EU severely undermined its “ability to capitalise fully on the unique opportunity of being the first company to launch heated tobacco products on the Irish market for adult smokers who would otherwise continue to smoke”.

Simon Carroll, a director and head of trade in PJ Carrolls, said in an affidavit the ban will also undermine significant investment by the British American Tobacco (BAT) group, which the Irish and UK firms are part of, in the development of “products with reduced risk profile (relative to cigarettes) to cater to the preferences of adult smokers in Ireland who would otherwise continue to smoke”.

The ban also has significant implications for the implementation of public health policy and anti-smoking campaigns where there are acceptable alternatives to traditional cigarettes, he said.

PJ Carroll and Nicoventures wrote to the Minister for Health and the Chief State Solicitor and was told any court challenge in Ireland was premature given that a direct EU challenge by a number of applicants, including PJ Carroll and Nicoventures, had already been initiated before the EU General Court, a part of the Court of Justice of the EU (CJEU).

High Court application

As the Minister for Health confirmed Ireland would be transposing the directive next July, PJ Carroll and Nicoventures brought a one-side only represented application before Mr Justice Charles Meenan on Wednesday seeking to challenge the directive and the intended transposition of it into Irish law.

Margaret Gray SC, for PJ Carroll and Nicoventures, said it was their case the EU Commission had unlawfully extended the directive to cover products of her clients and that in doing so it failed to provide proper reasoning.

The companies claim, among other things, that the new directive is invalid because it constituted the unlawful exercise of delegated powers under the previous Tobacco Products Directive (TPD).

The EU Commission’s method of assessing “a substantial change of circumstances” (in introducing the new ban) exceeded the scope of delegated powers under the TPD, they also say.

The court was also told the companies will be asking to have the matter referred to the CJEU for a preliminary ruling.

The judge said he was satisfied to grant leave but said he believed the reference to the CJEU would have to be first dealt with before anything else. He said the case could come back next month.

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