Philip Morris appeal dismissed over health warnings on heated tobacco

In August 2023, Philip Morris France filed an action before the interim relief judge of the Council of State to suspend an order requiring manufacturers to affix health warnings on heated tobacco packages like regular cigarette packages. On September 7, the Council of State dismissed the urgent nature of the request and dismissed the cigarette manufacturer's claim.[1].

In November 2022, the European Commission published the directive 2022/2100 which prohibits characterising flavours in heated tobacco products and imposes health warnings comparable to those for other cigarettes. Member States were required to transpose this Directive into national law by 23 July 2023 at the latest, with application of these provisions from 23 October 2023. Member States are also required to communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Philip Morris France has brought an action before the Council of State to suspend the execution of the decree of 17 July 2023 amending the decree of 19 May 2016 relating to the terms of inclusion of health warnings on the packaging units of tobacco products, vaping products, herbal products for smoking other than tobacco and cigarette rolling papers in France. According to the grounds supported, this would represent significant additional costs for modifying its packaging. The manufacturer also contested the legality of the decision (on this point, since the condition of urgency was not met, the judge did not have to rule).

The urgency of the request was not accepted

Philip Morris France had estimated the additional costs of modifying the packaging of its products at 800,000 euros. The manufacturer's global profits amounted to 150 billion euros ($159 billion) in 2021 and nearly 500 million in France.

According to the Council of State, the contested order does not prejudice the interests of the cigarette manufacturer in a sufficiently serious and immediate manner, which has not, in view of its situation, provided sufficient justification for the urgent nature of the case aimed at annulling the effects of the decision of the Minister of Health. The urgent nature of the application is therefore not proven: " The emergency condition provided for by Article L. 521-1 of the Code of Administrative Justice cannot be considered as fulfilled. ". Urgency is understood here in an objective and global manner and is not assessed solely from the applicant's point of view. It results from the balancing of the applicant's interests with the general interest, as recalled in the decision: " neither the cost to be borne by Philip Morris to comply with the disputed provisions, which in any event is not claimed to represent a significant portion of its turnover, nor the possibility of sanctions in the event of non-compliance with the disputed regulations, can be regarded as such considerations. ".

Legal action, a recurring strategy of the tobacco industry

In December 2022[2], the manufacturer British American Tobacco (BAT) had announced that it had initiated legal proceedings in the High Court of Ireland against the Department of Health and the Attorney General of Ireland, in order to protest against the ban on the sale of flavoured heated tobacco. More recently[3], two companies specialising in the sale of heated tobacco from the manufacturer BAT have sued the Irish State, which was preparing to transpose Directive 2022/2100 into its legislation, on the grounds that the European Commission (EC) had exceeded its powers.

These repeated legal actions by the tobacco industry are part of its strategies to preserve its financial interests and exert pressure on decision-makers and dissuade them from undertaking protective public health policies.

Keywords: heated tobacco, health warning, Council of State, France, Philip Morris France, interference, Europe

©Tobacco Free Generation

AE

[1] France, Council of State, Interim Judge, September 7, 2023, 478518

[2] Generation without tobacco, Ban on flavours for heated tobacco: BAT protests and sues Ireland, published on December 22, 2022

[3] Tobacco-Free Generation, Legal pressure on the European Commission over heated tobacco, published on October 21, 2023