Legal pressure on the European Commission over heated tobacco

The Irish government is set to take the case to the European Court of Justice, which is being sued by two companies involved in the sale and marketing of glo (BAT) brand heated tobacco products. The case will be examined in particular to determine whether the European Commission exceeded its powers by banning flavourings for heated tobacco products.

In June 2022, the European Commission proposed to member states to ban flavored products for heated tobacco devices. This proposal, which was then to be examined by the 27 governments of the European Union, was justified by the rapid growth of heated tobacco products in Europe. Between 2018 and 2020, the European market for these products had grown from 934 million euros to almost 20 billion euros (+2000 %)[1].

The directive banning flavourings in heated tobacco products was part of the 2014 EU Tobacco Products Directive.[2]It also imposes on all Member States the obligation to affix health warnings for these heated tobacco products. It entered into force on 23 November 2022.

Questioning the delegations of power of the European Commission

Two companies – PJ Carroll & Company and Nicoventures Trading – engaged in the sale and marketing of glo brand heated tobacco products manufactured by British American Tobacco (BAT) in Ireland, considered the directive to be abusive. They sued the Irish state, which was preparing to transpose the directive into law, on the grounds that the European Commission (EC) had exceeded its powers. According to the plaintiffs’ lawyers, this was a political decision, an area that is normally the responsibility of the Member States and not the European Commission. Four Member States reportedly challenged in 2022 what they considered to be an abuse of the EC’s delegation of powers.

The Dublin Court has referred the matter to the Court of Justice of the European Union (CJEU) to clarify these issues.[3]. One of the manufacturers' arguments is that heated tobacco products did not exist at the time of the 2014 directive and that they would not be affected by it. The European Commission is also criticised for not having taken into account that heated tobacco sticks contain less tobacco than a cigarette, an argument already put forward by manufacturers in an attempt to avoid heavy taxes on tobacco products.

Systematic challenge to public health measures by the tobacco industry

The institutions of the European Union, creators of standards on environmental, social and health issues, are essential targets for industrialists and in particular the tobacco industry.

This legal offensive by the tobacco industry is consistent with its overall strategy of deregulation and pressure on public institutions. While presenting themselves as responsible actors concerned with public health, tobacco companies invariably contest any provision that could restrict their profits. In order to fight public health measures, they take states to court, as was the case for Australia, Uruguay and also France. More generally, they threaten many states with costly procedures in order to dissuade them from adopting such measures. Taking legal action to contest the extension of a public health measure, as is the case here with flavored heated tobacco products, is thus one of the tobacco industry's many strategies.

Several of its countries – Ireland, Finland, the Netherlands – are among the world leaders in the fight against tobacco. One of the strategies of the industrialists is to use states that are favorable to it (Poland, Italy, Germany, the Czech Republic, etc.) to advance its positions and prevent consensus between member states.

To learn more about heated tobacco and the “alternatives to combustion” strategy, see our decryption.

Keywords: heated tobacco, glo, BAT, European Commission, lobby, interference, flavors

©Tobacco Free Generation

M.F.

[1] Smoke without fire? Researchers question heated tobacco products, France 24/AFP, published July 21, 2022, consulted October 13, 2023.

[2] Commission Delegated Directive (EU) 2022/2100 of 29 June 2022 amending Directive 2014/40/EU of the European Parliament and of the Council as regards the withdrawal of certain exemptions in respect of heated tobacco products (Text with EEA relevance), EUR-Lex, published on 3 November 2022, accessed on 13 October 2023.

[3] Powell N, Exclusive: Commission to face European court over tobacco law overreach, Eureporter, published on October 11, 2023, accessed on October 13, 2023.