Press Release is taken from the Court of Justice of the European Union (CVRIA) outlining the legal validity of the forthcoming Tobacco and Related Products Regulations/TPD regulations. This ruling, therefore, rejects the challenge against brought by Totally Wicked.
Concerning the special rules for electronic cigarettes…
…which provide, inter-alia, for a duty on manufacturers and importers to submit a notification to the national authorities for any product which they wish to place on the market (with a six-month standstill period), specific warnings, a maximum nicotine content of 20 mg/ml, a leaflet requirement, a separate prohibition on advertising and sponsorship and annual reporting obligations, the Court notes that electronic cigarettes display different objective characteristics from those of tobacco products. Therefore, by submitting those cigarettes to a separate legal regime which is, moreover, less strict than the one applicable to tobacco products, the EU legislature has not infringed the principle of equal treatment.
The Court points out, taking into account the growing market for electronic cigarettes and refill containers, the national provisions governing the conditions which those products must satisfy are in themselves liable, in the absence of harmonisation at Union level, to constitute obstacles to the free movement of goods. The Court also notes that, by allowing the Member States to prohibit the cross-border distance sales of electronic cigarettes and refill containers and by imposing certain common rules on the Member States which do not prohibit those sales, the directive enables the Member States to ensure that the rules on conformity are not circumvented.
The Court points out that the identified and potential risks linked to the use of electronic cigarettes have led the EU legislature to act in a manner consistent with the requirements stemming from the precautionary principle. In that regard, submitting electronic cigarettes to a notification scheme does not seem manifestly inappropriate or manifestly beyond what is necessary to attain the objective pursued by the EU legislature.
The Court rejects the argument that the obligation on manufacturers and importers of electronic cigarettes and refill containers to submit each year, to the competent authorities of the Member States, certain data enabling those authorities to monitor the development of the market infringes the principles of proportionality and legal certainty. Similarly, by fixing the maximum nicotine yield which may be contained in the liquid of electronic cigarettes at 20 mg/ml, the legislature has not acted arbitrarily or manifestly exceeded the limits of what was appropriate and necessary in order to achieve the objective.
The Court further holds that it is not disproportionate to require the unit packages of electronic cigarettes and refill containers to contain a separate leaflet, nor is it disproportionate essentially to prohibit commercial communications and sponsorship for electronic cigarettes and refill containers. In addition, the prohibition imposed on economic operators of promoting their products does not affect the essence of the freedom to conduct a business and the property right recognised by the Charter of Fundamental Rights of the European Union. The Court holds, lastly, that the special rules applicable to electronic cigarettes do not infringe the principle of subsidiarity.
Totally Wicked’s response to the legal defeat HERE
View/download full CVRIA Press Release | Article 20 archive