Tobacco firms lose second plain pack challenge

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government’s plain-packaging rules

Several big tobacco firms have lost a second challenge to the government’s plain-packaging rules.

Following the defeat at the High Court, on the eve of the new regulations coming into force in May, companies, including British American Tobacco, Imperial Tobacco and Japan Tobacco International, took the case to the Court of Appeal saying the regulations violated UK and EU law, eliminating valuable property rights by rendering tobacco products indistinguishable.

The UK is the first country in Europe to require cigarettes to be sold in plain, standardised packaging, and the government has said it means a generation will “grow up smoke-free”.

However, the challenge was rejected by three judges who said the Health Secretary had “lawfully exercised his powers”.

Under the new rules cigarette companies can no longer brand their products and health warnings take up 65% of the front and back of the pack. Packets of 10 cigarettes, which do not have enough room for the health warnings, are banned completely.

Tobacco companies and retailers have a year to clear old stock and replace with the new standardized packs – after that period, they will risk penalties for distributing/selling the products in the branded packs.

Under the new TPD and standardised packaging rules,  from 20 May 2016: all relevant products branded manufactured in or imported into the UK after this date must be in the new TPD and standardised packaging (as applicable) if theyare intended for consumption in the UK. There is a 1 year period until 21 May 2017 where old stock branded, manufactured in or imported into the UK before 20 May 2016 may be sold.
Then from 21 May 2017 all relevant products which are to be sold or supplied to the UK market
must be in the new TPD and standardised packaging (as applicable).The 1 year sell through period enables retailers to sell old branded stock. For this 1 year period between 20 May 2016 and 20 May 2017 it is likely that there will be both old branded tobaccopacks and new TPD-compliant and standardised packs on sale in shops.
Prohibited packaging features which are things that applicable tobacco packaging must NOT have include:
1) information about the tar, nicotine or carbon monoxide content
2) discounts, 2-for-1 offers, price reductions or similar offers
3) indication that the product is less harmful than other products
4) indication that the product has health or lifestyle benefits
5) indication that the product has vitalising, energising, healing, rejuvenating, natural or organic
properties
6) indication that the product has environmental benefits
7) indication of tastes, smells or flavours (whilst cigarettes are permitted to have menthol flavour until 2020 and flavours are permitted in tobacco products other than cigarettes and hand rolling tobacco, these are not permitted to be depicted on the packets)
8) appearance of a food or cosmetic product.

Interestingly, whilst many consumers (and even more non smokers) are under the impression that the packaging rules are limited to the product packaging only, the scope of the government’s plain-packaging rules are far wider and also include standardised formats for the cigarette sticks themselves.

The full government’s plain-packaging rules can be downloaded here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/579889/Tobacco_Packaging_Guidance.pdf

Deborah Arnott, chief executive of health charity ASH, said: “This is a victory for public health and another crushing defeat for the tobacco industry.

“This ruling should also encourage other countries to press ahead with standardised packaging, now that the industry’s arguments have yet again been shown to be without foundation.”

But Simon Clark, director of the smokers’ group Forest, said the government was targeting the consumer as well as the tobacco industry with the new rules.

“Plain packs are unlikely to stop people smoking but the impact on consumer choice could be significant because some brands will almost certainly disappear from the market.

“Tobacco is a legal product. The law should not impose excessive regulations on consumers who know the health risks and don’t need this type of finger-wagging measure.”