European Directive 2014/40/EU intends to harmonise a number of aspects of the manufacture, presentation and sale of tobacco and related products within the EU. From May 2020, the Directive provides for, amongst other things, the standardisation of the labelling and packaging of tobacco products. The validity of a number of the provisions within the directive has recently been questioned by Poland, specifically in relation to the prohibition on the sale of menthol cigarettes, and the High Court of England and Wales.
From an IP perspective, the law governing the standardisation of the labelling and packaging of tobacco products raises a number of questions for trade mark owners. The new law provides at article 13 that:
“The labelling of unit packets and any outside packaging and the tobacco product itself shall not include any element or feature that… promotes a tobacco product or encourages its consumption by creating an erroneous impression about its characteristics.”
“The elements and features that... are prohibited may include but are not limited to texts, symbols, names, trade marks, figurative or other signs.”
The directive also provides that member states may introduce further requirements, applicable to all products placed on its market, in relation to the standardisation of the packaging of tobacco products, where it is justified on grounds of public health (the key aim of the directive itself).
In a case brought by the tobacco manufacturer, Philip Morris Brand in the UK, the High Court asked:
- if a number of provisions within the directive, including article 13, concerning tobacco labelling and packaging, comply with the principles of proportionality and subsidiarity
- if article 13 does comply with the principle of proportionality and subsidiarity, does the prohibition also prevent true and non-misleading statements about tobacco products from appearing on product packaging
- the extent to which the directive permits member states to adopt more stringent rules in relation to matters relating to the 'standardisation' of the packaging of tobacco products
The Court of Justice of the European Union (CJEU) has concluded that the provisions relating to the standardisation of the labelling and packaging of tobacco products, including article 13, are proportionate and compliant with the principle of subsidiarity, due to the overriding interest of public health protection that the directive intends to pursue.
The CJEU has also ruled that article 13 prohibits the inclusion of “any element or feature that is such as to promote a tobacco product or encourage its consumption, even if these are factually accurate”. This is on the basis that the purpose of the directive is to protect consumers from the risks associated with tobacco use and it does not go beyond what is necessary in order to achieve this objective.
Finally, the CJEU has clarified that member states may maintain or introduce further requirements solely in relation to aspects of the packaging of tobacco products that are not harmonised by the directive.
The introduction through the directive of plain packaging for tobacco products is very controversial. It seems likely that these challenges will be the first of many.