Generational tobacco ban: ERS outlines roadmap for EU Member States

A new one report A legal report commissioned by the European Respiratory Society asserts that European Union member states have the latitude to adopt ambitious tobacco control policies, including a generational ban on the sale of tobacco products. This measure, presented as compliant with European law, is part of a broader dynamic of protecting public health and respecting human rights.

Author Steven Baylis presented his findings in Dublin at Action on Smoking and Health's (ASH) Global Tobacco Endgame summit, on the eve of the World Conference on Tobacco Control (WCTC).[1].

Quitting smoking: an achievable and legally sound goal

The ERS report recalls that the Member States of the European Union have the legal competence to adopt policies ofEndgame or "exit from smoking", provided that they are justified by a legitimate public health objective, and that they are proportionate to this objective. This is particularly the case with the generational ban on the sale of tobacco, which consists of prohibiting for life the sale of tobacco products to anyone born after a certain date.

Contrary to some recent positions—particularly in Ireland—the report demonstrates that nothing in European law prevents a Member State from implementing such a measure. Indeed, the European Tobacco Products Directive (TPD) does not regulate the age of sale, internal marketing arrangements, or national prevention policies. Consequently, Member States retain sovereignty in this matter, as long as their measures comply with the principles of the internal market and European law as a whole.

The ERS relies in particular on the case law of the Court of Justice of the European Union (CJEU), in particular the analysis of proportionality developed in the case Scotch Whisky AssociationThis case law provides a methodological framework enabling States to justify restrictive public health measures by proving that they are necessary, effective, and that no less restrictive alternative exists to achieve the same objective.

Furthermore, Article 2.1 of the WHO Framework Convention on Tobacco Control (FCTC), ratified by the European Union and all Member States, expressly calls on Parties to adopt stricter measures than those provided for in the convention at the time of its adoption. Article 24.3 of the TPD reaffirms this possibility. Furthermore, the fundamental rights enshrined in the EU Charter of Fundamental Rights, such as the right to health (Article 35) and the right to life (Article 2), support the legitimacy of tobacco control policies.

Thus, according to the ERS, a generational ban can fit perfectly into the EU legal framework, provided that it is evidence-based, time-bound, and accompanied by rigorous monitoring of its effects. Such a measure does not constitute a general marketing ban, but a gradual, targeted restriction that is consistent with the public health commitments of the Member States.

An ambitious measure to protect young people

The ERS report emphasizes the central importance of protecting children and adolescents from tobacco products. The association points out that the vast majority of smokers begin smoking before the age of 20, at a time of heightened neurological vulnerability, when nicotine addiction can develop even more quickly and sustainably. This reality fully justifies the adoption of policies focused on early prevention, particularly those that prevent initiation.

From this perspective, the generational ban on tobacco sales appears to be a particularly appropriate measure. It aims to permanently interrupt the cycle of initiation by making it impossible for future generations to legally access tobacco products. This preventive approach has been adopted—but delayed—in New Zealand and is now the subject of a bill in the United Kingdom. The report notes that interest in this type of measure continues to grow, both among political leaders and in civil society, and that it enjoys strong support when properly explained to the public. It represents both a pragmatic and ambitious response to the challenge of the intergenerational transmission of smoking.

In Europe, several countries have already set tobacco-free generation targets, such as France, the Netherlands, and Belgium. However, none have yet taken the step of implementing a generational ban. The ERS report urges them to seriously consider this option, basing it on solid epidemiological data and integrating it into a comprehensive strategy to reduce tobacco prevalence.

A structured approach to achieving the elimination of tobacco from society

For a European Union Member State to implement a generational ban on tobacco sales, the ERS report recommends a rigorous methodology based on the principle of proportionality. This approach begins with the definition of a clear public health objective—for example, achieving a smoking prevalence below 5% by 2040—in accordance with the guidelines of Europe's Beating Cancer Plan. The next step is to establish the current prevalence level, particularly among young people, and to assess existing tobacco control measures against the commitments made under the FCTC. The State must analyze whether these policies are sufficient to achieve the set objective, or whether other complementary measures—such as raising the age of sale or mass awareness campaigns—can be considered. Comparative modeling of different scenarios, including a generational ban, then makes it possible to identify the most effective and least restrictive strategy for trade. Finally, any draft law should incorporate a rigorous monitoring and evaluation mechanism to demonstrate its effectiveness over time and prevent any adverse effects, such as the development of parallel markets or a shift towards other risky products. This structured approach provides a solid basis for justifying the legality and legitimacy of an ambitious measure under European law.

Regulate industry interference

The ERS report highlights a major obstacle to the adoption of ambitious tobacco control policies: the tobacco industry's persistent and structured interference in public decision-making processes. This industry mobilizes a wide range of strategies—legal, economic, media, and political—to block, slow, circumvent, or discredit measures that threaten its commercial interests.

This interference is all the more worrying because it directly contradicts the obligations of States Parties to the FCTC, particularly Article 5.3, which requires the protection of public health policies against the commercial interests of industry. The report highlights that this obligation is still too often ignored or insufficiently enforced within the European Union, exposing governments to sophisticated influence campaigns, often conducted behind the scenes via consulting firms, front associations, or sectoral alliances.

In the specific case of so-called "tobacco exit" policies, industry opposition is manifested by questioning their legal feasibility, highlighting alleged economic risks, and spreading alarmist stories about the growth of the illicit market. The report highlights that the argument that a generational ban would be incompatible with European law is often put forward without serious foundation, or even contradicted by institutions themselves, such as the European Commission or the CJEU in its case law.

The ERS therefore calls on Member States to be increasingly vigilant in the face of these influence and disinformation strategies. It is essential that health authorities, parliamentarians, and judicial bodies be able to rely on independent expertise, based on the principles of the right to health and democratic transparency. The report also recommends that legislative processes be clearly separated from any industrial lobbying and that any contacts with industry representatives be transparent and subject to strict supervision, with systematic publication of exchanges, in accordance with the guidelines of Article 5.3 of the FCTC.

©Generation Without Tobacco

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[1] ERS offers EU member states roadmap for tobacco endgame, Tabaknee, published June 30, 2025, accessed July 1, 2025