European Court of Justice upholds ban on flavourings in heated tobacco

The European Court of Justice has dismissed Irish cigarette manufacturer PJ Carroll’s appeal against the European Commission’s ban on flavoured heated tobacco products. The Court held that the Commission had acted within its powers in banning the products, and justified the measure primarily on public health concerns.[1].

This decision reinforces the European Union's commitment to strict tobacco control policies and sets a legal precedent for future regulatory measures regarding new nicotine products.

Ban justified for health reasons, says Court

PJ Carroll, a subsidiary of British American Tobacco (BAT), had initially challenged the ban in the Irish High Court, arguing that it was disproportionate and did not have a sufficient scientific basis. The manufacturer argued that flavoured heated tobacco products should not be subject to the same regulatory restrictions as traditional combustible tobacco and that the European Commission had exceeded its powers by banning flavours for these products. However, the European Court of Justice, for its part, found that the European Commission had acted within its legal mandate under the Tobacco Products Directive (TPD) which aims to reduce smoking, particularly among young people. The Court also found that the Commission had acted appropriately within its mandate to adapt the provisions of the Directive to address new developments in the tobacco market, such as the emergence of heated tobacco products.

The measure, introduced in 2022 as part of the EU's broader strategy to reduce smoking rates, bans the sale of heated tobacco products with flavouring agents that could make them more attractive to potential consumers, including non-smokers and young people. The European Commission justified the measure by concerns that such products could act as a gateway to nicotine addiction and undermine efforts to discourage tobacco use.

This decision has significant implications for the tobacco industry, which is increasingly moving towards a range of new nicotine products, including heated tobacco, vaping devices and oral products such as nicotine pouches. These new products are tobacco manufacturers' response to the decline of their traditional products, which are less consumed due to stricter regulations. With this decision, the EU confirms its commitment to achieving a tobacco-free generation by 2040 and sets a legal precedent for future regulatory measures on new nicotine products.

Public health advocates welcomed the court's decision, highlighting the dangers posed by flavored tobacco and nicotine products. The World Health Organization (WHO) warns of the marketing strategies used by tobacco companies to promote all of these products, citing concerns about their possible impact on smoking initiation rates.

Workarounds already in place to promote flavored products

To circumvent the European ban on flavourings, manufacturers Philip Morris and British American Tobacco have recently introduced nicotine-infused sticks, using substances such as rooibos tea, for use with heated tobacco devices.[2].

Philip Morris has notably launched the LEVIA range, consisting of tobacco-free sticks infused with nicotine and available in several flavours. The company's CEO, Jacek Olczak, has also confirmed that these products are being put on the market to avoid certain regulations and taxes applicable to traditional tobacco products. In some countries such as Romania and the Czech Republic, where current regulations are more permissive, these tobacco-free sticks would already represent half of all sticks sold for British American Tobacco's heated tobacco device by December 2023, this figure being 30 % in Germany and 19 % in Greece.

AE

[1] Tony Connelly, European Commission within rights to baned flavor HTPs - court, published on January 31, 2025, consulted the same day

[2] Tobacco-free generation, New “tobacco-free alternatives” in the sights of certain European countries, published on April 3, 2024, consulted on January 31, 2025