Cigarette companies lose last-minute bid to stop plain-packaging EU law

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20 May 2016

Tobacco giants have lost their High Court challenge over the Government's new plain packaging rules, the day before they are due to come into force.

A judge dismissed a judicial review action brought by the world's four biggest firms, hours before new laws enforcing standardised, green cigarette packets become law.

Philip Morris International, British American Tobacco, Imperial Tobacco and Japan Tobacco International had challenged the legality of the new regulations, introduced by Parliament shortly before last year's general election.

At the heart of the ruling given by the High Court are the Standardised Packaging of Tobacco Products Regulations 2015, which the companies say will destroy their valuable property rights and render products indistinguishable from each other.

The firms put forward a number of grounds of challenge, including a claim that the regulations violate a number of UK and EU laws, and that they are "disproportionate" and "must be quashed".

But Mr Justice Green, who heard the case in December, dismissed all grounds for a judicial review.

In his 386-page, 1,000-paragraph written ruling, Mr Justice Green said: "The regulations were lawful when they were promulgated by Parliament and they are lawful now in the light of the most up-to-date evidence."

The ruling found that it was lawful for states to prevent the tobacco industry from continuing to make profits by using their trademarks, on the grounds of protecting public health. While plain packaging curtailed tobacco firms' property rights, they had not been "expropriated" and there were no grounds for compensation for tobacco firms, Mr Justice Green found.

He added: "In my judgment the regulations are valid and lawful in all respects. There is no basis upon which I could or should strike down the regulations or prevent them coming into effect tomorrow."

Earlier this month, the European Court of Justice (ECJ) ruled that the Tobacco Products Directive, which was adopted in 2014 but has been held up by the challenges, is lawful.

Anti-smoking group Action on Smoking and Health (Ash) called the "landmark" judgment "a crushing defeat for the tobacco industry", while the British Lung Foundation said it showed it was "completely valid for the Government to tackle the number one cause of preventable early death".

Two of the tobacco companies, British American Tobacco and Japanese Tobacco International, said they would seek leave to appeal. A BAT spokesman said that the ruling was "by no means the final word on the lawfulness of plain packaging", adding that it was "not a precedent for other governments to introduce plain packaging". The spokesman pointed to an ongoing dispute at the World Trade Organisation over plain packaging.

Marc Firestone, senior vice-president and general counsel of Philip Morris International (PMI), expressed the company's "disappointment" at the ruling, and said that although there were "strong grounds" to appeal, it had decided not to do so.

Professor Kevin Fenton, national director for health and wellbeing at Public Health England, said: "Standard packaging is a fabulous result, not just protecting generations to come but also offering a powerful new reason for smokers to quit."

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