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Tobacco companies defeated over plain packaging

Leigh Day acts for ASH in successful High Court intervention in support of plain packaging for cigarettes

19 May 2016

The legal action brought by the tobacco industry challenging the lawfulness of the Regulations introducing plain packaging for cigarettes and rolled tobacco products in the UK was today dismissed by the High Court in an emphatic 386-page judgment.

Law firm Leigh Day represented the campaigning public health charity ASH who intervened in the legal action in support of the Government’s proposals to introduce plain packaging.

The Standardised Packaging of Tobacco Products Regulations 2015 require cigarettes and hand rolling tobacco to be sold in drab brown packages, which have had all their attractive features and colours removed and with prominent picture and text health warnings.

The manufacturer’s name and the cigarette brand are printed in a standard font, colour, size, case and alignment on the package.


ASH Image: packaging compliant with Tobacco Products Directive and Standardised Packaging regulations.

The purpose of the Regulations is to make cigarette packets less attractive to the eye and to the touch, especially to young people, and thus to reduce the number of young people starting to smoke and to make it easier for existing smokers to quit.

All arguments put forward by the tobacco industry that the Regulations breached international, European and domestic law, including that the measures would infringe the tobacco companies’ human rights and intellectual property rights, were rejected by Mr Justice Green in his comprehensive judgment.

In his judgment, the Judge was critical of the expert evidence submitted by the Tobacco Industry (the Claimants in the legal action) and stated:

“As a generality, the Claimants’ evidence is largely: not peer reviewed; frequently not tendered with a statement of truth or declaration that complies with the CPR [Civil Procedure Rules]; almost universally prepared without any reference to the internal documentation or data of the tobacco companies themselves; either ignores or airily dismisses the worldwide research and literature base which contradicts evidence tendered by the tobacco industry; and, is frequently unverifiable …... Some of it was wholly untenable and resembled diatribe rather than expert opinion”

In rejecting the Tobacco Industry’s argument that the restrictions were disproportionate, the Judge stated:

“If one examines the issue purely by comparing the monetary losses the tobacco industry assert that they will incur against the costs which would be saved to the public purse by the Regulations the balance comes out very clearly indeed on the side of the public purse. Yet it is wrong to view this issue purely in monetised terms alone; there is a significant moral angle which is embedded in the Regulations which is about saving children from a lifetime of addiction, and children and adults from premature death and related suffering and disease. I therefore reject the Claimants’ case that the Regulations are disproportionate.”

In rejecting the Tobacco Industry’s argument that it should be compensated for any restrictions imposed, the Judge stated:

“Tobacco usage is classified as a health evil, albeit that it remains lawful. There is no precedent where the law has provided compensation for the suppression of a property right which facilitates and furthers, quite deliberately, a health epidemic. And moreover, a health epidemic which imposes vast negative health and other costs upon the very State that is then being expected to compensate the property right holder for ceasing to facilitate the epidemic.”

The Regulations come into effect on 20th May 2016. However, there is a one year transitional period to allow for the sell-through of old stock and from May 2017 all tobacco products on sale in the UK must comply with the Regulations.

Commenting on the judgment, ASH Chief Executive Deborah Arnott said: “This landmark judgement is a crushing defeat for the tobacco industry and fully justifies the Government’s determination to go ahead with the introduction of standardised packaging. Millions of pounds have been spent on some of the country’s most expensive lawyers in the hope of blocking the policy. This disgraceful effort to privilege tobacco business interests over public health has rightly failed utterly.”

Sean Humber Head of the human rights Department at Leigh Day and who is representing ASH, said: “After Australia, the UK now becomes the second country in the world to require cigarettes to be sold in plain, standardised packaging. This comprehensive judgement is likely to be of great importance internationally as it will provide comfort to the significant number of other countries looking to introduce similar restrictions on cigarette packaging that such measures would be lawful.”

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