The CJEU questioned on the validity of cigarette emission measurements

In the European dispute over "sjoemelsigaret"—cigarettes with rigged filters that circumvent official tests—the Advocate General of the Court of Justice of the European Union (CJEU) ruled that the Dutch Youth Smoking Prevention Foundation could not demand the application of an alternative method to the ISO standard, which was deemed unrepresentative. However, he raised a fundamental question: can this standard, never published in the Official Journal of the EU, be considered legally valid? This position opens a new chapter in a legal battle that has been going on since 2019 and could have major consequences for the future of the European Tobacco Directive.

A measurement method called into question

At the heart of the dispute lies the ISO method prescribed by the European Tobacco Products Directive for measuring tar, nicotine, and carbon monoxide emissions. This technical standard, developed with extensive involvement from the tobacco industry, relies on standardized laboratory testing conditions. However, according to work by the Dutch Institute of Public Health (RIVM) published in 2018, this approach leads to a systematic underestimation of the toxic substances actually inhaled by smokers. In practice, cigarettes tested using the ISO method appear to meet regulatory thresholds, even though exposure levels are much higher when smoked under real-world conditions.

The explanation lies in the very design of modern cigarettes, whose filters are pierced with micro-perforations. These openings allow additional air to be introduced during laboratory tests, artificially diluting the measurements of tar, nicotine, and carbon monoxide. But once brought to the lips, these perforations are blocked by the smoker's fingers or lips, resulting in inhalation of much more concentrated smoke. Thus, the ISO method provides a falsely reassuring image and does not protect consumers from real risks.

To address this bias, the World Health Organization has for several years recommended the use of alternative methods, such as the WHO-Intense method, which more accurately simulates actual consumption. According to analyses conducted using this approach, cigarette emissions are on average three times higher than the figures obtained using the ISO method. This finding reinforces the argument of public health organizations, which believe that the exclusive use of the ISO standard violates consumers' fundamental right to information and contravenes the health protection objectives enshrined in European treaties.

A complex European procedure

The so-called “sjoemelsigaret” affair[1] illustrates the complexity of European legal mechanisms when a technical standard is the subject of public health challenges. The Dutch Youth Smoking Prevention Foundation initiated this procedure by bringing the case before the Rotterdam court to challenge the use of the ISO method, arguing that it did not allow compliance with the provisions of the European Tobacco Directive to be verified and that it contravened the Member States' obligation to ensure a high level of health protection.

In 2019, the Dutch court that had been seized decided to use the preliminary ruling procedure provided for in the Treaties, referring several questions relating to the interpretation of the directive to the Court of Justice of the European Union (CJEU). The main one concerned the legal validity of a standard not published in the Official Journal of the Union and the possible obligation to use alternative methods.

In its February 2022 ruling, the CJEU ruled that the ISO standard, in the absence of official publication, could not be directly enforced against citizens. It also reiterated that Member States remained required to implement a measurement method that was appropriate and consistent with the objectives of protecting public health. This decision, seen as a major step forward by health organizations, nevertheless raised reservations among national authorities.

The Dutch government and the NVWA regulatory agency have highlighted the risks of legal uncertainty linked to the absence of a harmonised method at European level, fearing divergences in application between Member States and a challenge to the coherence of the internal market. In this context, an appeal was filed with the Commercial and Industrial Court (CBb), which has once again decided to refer the matter to the CJEU to obtain clarification on the scope of the 2022 judgment.

The question now posed is central: should the directive be interpreted as requiring Member States to immediately adopt alternative methods, or should the reference to the ISO standard be maintained as it stands despite the absence of official publication of this otherwise contested scientific standard? The Court's response will determine not only the continuation of the Dutch proceedings, but also the evolution of the European legal framework for measuring tobacco emissions.

The Advocate General's opinion and its implications

In his conclusions of 5 September 2025, Advocate General Nicholas Emiliou provided several clarifications of general scope. On the one hand, he considered that the 2022 judgment should be interpreted restrictively: only certain private companies could, in specific cases, invoke the use of alternative methods. Civil society organizations, such as Youth Smoking Prevention, would not have this option. This reasoning limits the access of associations to litigation on the direct basis of the Tobacco Directive.

Furthermore, the Advocate General highlighted the lack of publication of the ISO standard in the Official Journal of the European Union. In his view, a technical standard that has not been published cannot, in principle, be legally binding. This omission could call into question the very validity of Article 4(1) of the Tobacco Products Directive, which prescribes the use of the ISO method. He therefore recommended that the Court reopen the proceedings to examine this issue specifically, stressing that it affects the legal certainty, transparency, and legitimacy of EU law.

If the Court were to confirm that the lack of publication invalidates the reference to the ISO standard, such a decision would force European institutions and Member States to quickly define a scientifically robust alternative method. The consequences would be major, both for the rules controlling tobacco products and for the products themselves, which would no longer be able to be validly placed on the market.

The opinion of the Attorney General does not directly reflect the expectations of the Youth Smoking Prevention organization.[2], however, it contributes to placing the issue of measurement methods back at the center of the European legal and political debate. This procedure highlights the limits of a standard whose legitimacy is contested; it should feed into future discussions in the context of the revision of the Tobacco Products Directive. The requirement for normative transparency and the adoption of measurement methods reflecting actual consumption now appear to be essential issues to guarantee real information to consumers and protect public health.

©Generation Without Tobacco

AE

[1] European case on the 'rigged' cigarette and illegal measurements, published November 7, 2023, accessed September 10, 2025

^[2] Advocate General of the EU Court: Rigged cigarette can stay, Tabaknee, published September 8, 2025, accessed September 10, 2025