The European Commission must take action to curb the rigged cigarette. That was the tenor at the hearing of the European Court of Justice in the enforcement case that the Youth Smoking Prevention Foundation started in 2019. The Advocate General will share his conclusion on 10 July.

By the web editor

“Wouldn’t it be scandalous if the Court ex officio were to examine article 4, paragraph 1?” Vice-President Von Danwitz of the European Court of Justice asked to everyone’s surprise at the end of the hearing on 10 March in the Dutch enforcement case around the rigged cigarette. The Vice-President saw in the Court’s previous judgment in this case, then in response to preliminary questions from the Rotterdam District Court, a clear call to the European Commission to resolve a contradiction in the European tobacco regulations. Why then should the Court now decide this issue?

The contradiction lies precisely at the heart of the legal issue at hand, namely whether the standard of 10 mg tar, 1 mg nicotine and 10 mg carbon monoxide in cigarette emissions (article 3, paragraph 1 of the Tobacco Products Directive [TPD]) can be measured using a different measurement method than the ISO method prescribed in article 4, paragraph 1 of the TPD.

As scientifically established by the National Institute for Public Health and the Environment (RIVM), this ISO method grossly underestimates what a smoker actually inhales. This mismeasurement is caused by tiny holes in the filters of cigarettes, that allow air to be mixed with the cigarette smoke in a test setting. Smokers close these holes with their fingers and lips, thus inhaling less diluted smoke. Also, the frequency and volume of puffs not comparable to smoker’s actual behaviour.

Youth Smoking Prevention therefore asked the Netherlands Food and Consumer Product Safety Authority (NVWA) to take enforcement action using an alternative measurement method, such as the WHO Intense method. The NVWA stated that it had to adhere to the legally prescribed ISO method, but in the further course of the procedure it was determined that, because this method is not published in the Official Journal of the EU and citizens are therefore unaware of its content, the ISO method cannot be binding on individual citizens. And that is where the contradiction lies that was exposed in the previous judgment of the Court. Because on the one hand, citizens can demand that the 10-1-10 standard be met, and on the other hand, tobacco manufacturers are bound by the ISO method.

Appeal to the Commission

The Vice-President’s question clearly also surprised the team of lawyers of the European Commission, who needed almost a minute of deliberation before the answer came. “We did indeed see exactly that tension in the last points of the judgment”, said the lawyer on behalf of the Commission. “Today we hear that it is a clear appeal to the Commission, and we are listening to that appeal. An evaluation is currently underway, and we promise that we will look into this carefully and critically examine it. But we think it would be going too far if that would now lead ex officio to the annulment of Article 4, paragraph 1. That is not at all a question that is at issue in the national procedure.”

What has priority: health or measurement method?

In his plea on behalf of Youth Smoking Prevention, lawyer Jacques Sluysmans stated that the entire procedure essentially revolves around what should be given priority: public health, in particular of young people, on the one hand, or adhering to a measurement method that is laid down in European law on the other. “The irony here is that the purpose of this measurement method is to check whether the tobacco industry complies with the maximum emissions of tar, nicotine and carbon monoxide, with the aim to better protect public health. This measurement method must therefore also serve public health.”

Adhering to the ISO method, which according to the RIVM study is clearly inadequate, therefore goes against the protection of public health. That is why Youth Smoking Prevention, in the words of Sluysmans, “believes that the importance of public health, and the health of young people in particular, far exceeds the importance of adhering to a specific measurement method.”

‘Directive is only for harmonisation’

Unsurprisingly, the tobacco industry took the position that the 10-1-10 standard and the measurement method in the Tobacco Products Directive are only intended to harmonise the requirements that tobacco products must meet throughout the European Union. The primary purpose of the directive is to promote the internal market, argued Philip Morris’ lawyer. There can be no health objective, he argued, because cigarettes, regardless of the maximum emission level set for them, are always harmful to health. In addition, no measurement method can entirely imitate human smoking behaviour, which means that these methods are merely technical aids to be able to set a standard for the internal market. Moreover, the lawyer argued, the set emission standards and the measurement method are inextricably linked, which means that a different measurement method would also require different emission standards.

‘The Netherlands wants to, but cannot’

The lawyer representing the Netherlands told the Court that the Netherlands is in favour of using a measurement method that better approximates the actual smoking behaviour of consumers, but cannot yet do so despite the Court’s previous ruling in this case. On the one hand, the Dutch government wants to meet the Youth Smoking Prevention requirement, but on the other hand, it cannot disregard the measurement method prescribed in the law. That would be contrary to legal certainty for tobacco manufacturers. In her plea, the lawyer therefore called on the European Commission to make use of the possibility offered by the directive to change the measurement method.

The lawyer for the European Commission also believed that it cannot be the case that individual Member States set aside the prescribed measurement method and opt for a different method. However noble the motives of Youth Smoking Prevention may be, she concluded, the failure to publish the ISO standards in the Official Journal of the EU cannot be a reason to apply a different measurement method.

A cigarette is not an incense stick

In the second part of the hearing, several judges asked questions about specific aspects of the case. In response to a question about the meaning of the description ‘when used as intended’ of a cigarette for the choice of one or other method, Sluysmans replied that this does not refer exclusively to the burning of a cigarette. That is the interpretation that the tobacco industry wants to give it, but Sluysmans argued that a cigarette is not just burned like an incense stick. Intended use refers to smoking a cigarette that between the fingers is brought to the mouth in one way or another.

In response to other questions, the European Commission stated that in the present legislation a balance must always be sought between public health and requirements that safeguard the internal market. If public health were to prevail, the maximum emission values ​​would have to be set at zero. “That is not possible”, the lawyer stated. But she did say that she ‘strongly agreed’ with the Netherlands’ position that Article 4, paragraph 1, on the measurement method to be used should be amended. But then via the appropriate route, i.e. via the European legislator (the Council or the European Parliament), or via the delegated authority that the Commission has on this point.

Then the bombshell that the Vice-President seemed to be placing under the entire discussion had yet to come. The Advocate General will announce his conclusion in this case on 10 July.

The entire session can be viewed on curia.europa.eu (C-155/24).