Anyone fortunate enough to find themselves in a shop recently may have noticed signs announcing the cessation of the sale of menthol cigarettes. This was most probably immediately discounted by all those but avid menthol smokers but the background to this widely uncontroversial development illuminates the operation of EU law.
The death knell for menthol cigarettes was the ‘directive’ issued by the European Parliament and Council in 2014. A directive is a legislative goal of the EU, set out within a timeframe in which all Member States must comply, but are free to implement the changes in whatever way they see fit. The directive follows the 2003 ‘Framework Convention on Tobacco Control’, the first WHO treaty, signed by the European Community in order to reduce the consumption of tobacco products.
It was adopted following reports on the functioning of the internal market in regards the tobacco industry, scientific advice on developments in tobacco products and consultation with stakeholders and member states. The aim of the directive was to improve public health by removing menthol flavourings from cigarettes, which increase the palpability of tobacco, especially to young smokers.
However the intricacies of the directive would only be truly teased out when Poland, supported by Romania, spurred by the popularity of menthol cigarettes in their respective countries mounted a challenge on the prohibition before the Court of Justice of the European Union. The CJEU exists as the ultimate authority on the interpretation of EU law and often deliberates on disputes between individual member states and the EU legislature, such as this case.
There were three aspects to Poland’s challenge; that the directive did not fulfil the basis for harmonization, that the full-scale ban was disproportionate and that it breached the core EU principle of subsidiarity
Set down in Article 144 of the Treaty on the Functioning of the European Union, the principle of ‘approximation’ can be invoked if there are, or will arise discrepancies between the laws of the Member States which obstruct fundamental freedoms, thus disrupting the functioning of the internal market. Poland challenged that basis for the directive; that there was no and there was no evidence to suggest there would arise, divergences in national rules surrounding menthol cigarettes. A fortiori, they argued that ambiguity in definitions in the directive would in fact lead to divergences between national rules. The example of the continuing legality of menthol cigarettes in Switzerland was raised as an example of a putative smuggling avenue. Romania added that there was no benefit to the functioning of the market conferred by the ban of menthol cigarettes as they did not constitute a large part of ther market, only popular in a few member states and weren’t traded between states at a great level.
Secondly, Poland argued that the EU wide ban was disproportionate and less severe options had not been entertained before the prohibition. To this effect, they offered a series of alternative measures. They also contended that menthol should be distinguished from other flavours, due to its “long established” custom. It would seem this argument stems from the tradition and popularity of menthol cigarettes in Poland in particular. Furthermore, menthol should be differentiated as it does not completely eradicate or replace the smell and taste of tobacco and that menthol was not as attractive to young people as other flavours.
Finally, Poland contended the prohibition was unnecessary as it breached the EU principle of subsidiarity. The principle of subsidiarity is integral to the EU legislative process. It prohibits the EU from enacting law at EU-wide level unless the objective pursued cannot be “sufficiently achieved” at Member State level. Poland argued this criterion had not been met. Since levels of consumption of mentholated tobacco differs widely across the EU, it would be more effective from a public health point of view for individual Member States to tackle the issue.
The Court rejected all of Poland’s arguments. Firstly, they pointed out that the directive would not create discrepancies as the definitions of the document where eminently clear what “flavouring ingredients” entailed. The speculative example of Swiss smuggling was countered by articles 15 and 16 of the directive, which explicitly tackle illicit sales.
The Court also noted Poland had attempted to use the lack of disparity between regulations on menthol to justify their case despite wide discrepancies between general flavouring regulations. This “salami slicing” of the wider tobacco trade was rejected by the Court. Furthermore, the CJEU pointed out that the “wording of the Treaty Article intended to give the EU legislature discretion in how to implement approximation” and since public health protection was the key reason for the directive, the EU Parliament was entitled to pursue that objective in such a manner. Furthermore, the mere fact the directive would affect some Member States more than others did not make the measures disproportionate on an economic basis, so long as public health was the objective. The EU legislature can illicit negative economic consequences for particular members if considered necessary on an objective deliberation. Ultimately, the Court ruled that the market and health objectives are interdependent, thus the EU is entitled to achieve both with one fell swoop at federal level.
In response to Poland’s claims that the measures were disproportionate, the CJEU found; the tradition of menthol cigarettes in some regions did not alter the danger of the product nor the objectives the directive sought to achieve. The need to regulate new products on the market harshly does not justify, ad contrario that more established products should benefit from soft regulation. Poland’s claim that young people preferred flavours other to menthol were not conclusive and moot in a wider context, as young people would not be the only beneficiaries of the directive. Lastly, the assertion that menthol does not mask the flavour of tobacco as effectively as other flavours was not substantive and likewise moot as it still masks the tobacco to some degree.
In response to Poland’s arguments that the directive would damage industries and lifestyles, the CJEU pointed out that the delayed effect of the directive gave individual smokers ample time to change habits and the tobacco industry to adapt. It was highlighted that the tobacco industry would not sustain massive damage as a result and smokers still had the option to transfer to non-mentholated cigarettes if unable to quit. Furthermore, even if the Court found the arguments that the ban would fail to dissuade existing smokers, the ban would still hold true on preventing the initiation of new smokers.
Poland had raised a number of alternative measures to the ban, such as the ban of cross border sales, warnings on menthol cigarette packaging and age limits on menthol cigarettes. These failed to satisfy the Court, which found them too piecemeal and unsubstantial.
Finally on the point of subsidiarity, the CJEU ruled that even if the public health objective was better achieved by action at member state level as Poland claimed, the accompanying objective of regulating the market would be frustrated by allowing countries to set their own rules would lead to differences in national rules. The interdependence of these two objectives permits the operation at EU level. Furthermore, the Court rejected the idea that only three countries had substantial menthol markets, pointing out that in at least eleven member states the market share of menthol was significant.
Ultimately, the undisputed impact assessment which forecast a decrease in cigarette use of 0.5% to 0.8% over 5 years as a result of the ban proved instrumental in the Court’s deliberation and the relatively weak arguments presented by Poland posed little threat to the directive.
The directive was co-opted into Irish law by the EU (Manufacture, Presentation and Sale of Tobacco and Related Products) Regulations 2016. The Act served to directly transpose the directive into Irish law and proves a shining example of the ideal operation of an EU directive. The implementation of the 2016 Regulations has be welcomed in Ireland by the Minister for Health and the Irish Heart Foundation but largely passed without controversy here. However the move has spurred the tobacco industry to respond with its typical robustness and develop a series of alternatives to traditional menthol cigarettes, such as flavour cards that can be added to packs of cigarettes and menthol cigarillos, mini cigars, which are exempt from the ban.
The EU ban has piqued interest internationally, particularly in the US where efforts are underway to ban menthol cigarettes at federal level, following individual state bans. A minority of public representatives have opposed these moves in fear of their disproportionate effect on black smokers, by far the majority of menthol smokers in the US, where menthol comprises of a third of the tobacco market. The Canadian experience provides credence to those backing the bans of menthol. After menthol cigarettes where banned in the province of Ontario in 2017, a study found that twice as many menthol smokers attempted to quit than had initially intended.
The ban on menthol cigarettes unveiled itself as textbook EU law-making. With its genesis in the 2003 WHO treaty, its conception as the 2014 directive, its challenge in the CJEU and eventual implementation in individual member states by domestic statutes, the ban of menthol cigarettes weathered the rigours of the EU legislative process and proved itself an exemplar of European public health policy.