United States Tobacco International Inc. v Minister for Health

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1990
• Neutral Citation: 1990 WJSC-HC 2391
• Date: 01 January 1990
• Docket Number: [1986 No. 2037P],No. 2037P/1986

UNITED STATES TOBACCO INTERNATIONAL INC v. MIN HEALTH

BETWEEN:

UNITED STATES TOBACCO INTERNATIONAL INC. AND JOSEPH R. TADDEO

Plaintiffs

and

THE MINISTER FOR HEALTH, IRELAND AND THE ATTORNEY GENERAL

Defendants

1990 WJSC-HC 2391

No. 2037P/1986

THE HIGH COURT

Synopsis:

MINISTER OF STATE

Powers

Exercise - Validity - Authority - Statute - Minister's order not authorised by enactment - Harmful tobacco product - Chewing tobacco - Restricted article - Order banned import and sale of product - Ban imposed pursuant to powers conferred in public- health legislation - Health (Restricted Article) Order, 1985 (S.I. 429) - Health Act, 1947, ss. 65, 66 - (1986/2037 P - Hamilton P. - 7/9/87) - [1990] 1 I.R. 394

|United States Tobacco International v. The Minister for Health|

SOCIAL WELFARE

Health

Tobacco - Product - Importation - Ban - Restricted article - Sachets of chewing tobacco - Risk of injury to health - Order made ~ultra vires~ Minister - (1986/2037 P - Hamilton P. - 7/9/87) - [1990] 1 I.R. 394

|United States Tobacco International v. Minister for Health|

STATUTORY INTERPRETATION

Legislature

Intention - Minister of State - Delegated powers - Tobacco - Product - Importation - Ban - Restricted article - Sachets of chewing tobacco - Risk of injury to health - Order made ~ultra vires~ Minister - (1986/2037 P - Hamilton P. - 7/9/87) 1990 I.R. 394

|United States Tobacco International v. Minister for Health|

WORDS AND PHRASES

"Restricted article"

Public health - Risk - Tobacco - Product - Importation - Ban - Sachets of chewing tobacco - Risk of injury to health - Order made ~ ultra vires~ Minister - (1986/2037 P - Hamilton P. - 7/9/87)

|United States Tobacco International v. Minister for Health|

Citations:

HEALTH ACT 1947 S66

HEALTH (RESTRICTED ARTICLE) ORDER 1985 SI 429/1985

HEALTH ACT 1947 S66(1)

HEALTH ACT 1947 S66(2)

HEALTH ACT 1947 S66(3)

HEALTH ACT 1947 S66(4)

HEALTH ACT 1947 S66(5)

HEALTH ACT 1947 S66(6)

HEALTH ACT 1947 PART VI

CONSTITUTION ART 40.3

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 297

CITYVIEW PRESS LTD V AN COMHAIRLE OILIUNA 1980 IR 381

COOKE V WALSH 1984 IR 710

EAST DONEGAL CO-OP V AG 1970 IR 317

TOBACCO PRODUCTS (CONTROL OF ADVERTISING, SPONSORSHIP & SALES PROMOTION) REGS 1979 SI 350/1979

HEALTH ACT 1953 S39

HEALTH ACT 1947 S35

HEALTH ACT 1947 S65

BOURNE V NORWICH CREMATORIUM LTD 1967 2 AER 576

DILLON V MIN POST & TELEGRAPHS UNREP SUPREME 03.06.81 1981/9/1589

MIXNAM'S PROPERTIES LTD V CHERTSEY URBAN DISTRICT COUNCIL 1964 1 QB 214

HEALTH ACT 1947 PARTS 1–10

1 Judgment of the President of the High Court delivered on the7th day of September 1987

2 The first named Plaintiff herein is a company incorporated under the laws of the State of Delaware in the United States of America.

3 It is the manufacturer and distributor of a number of tobacco products including one in the form of finely-cut, moist tobacco contained in sachets or pouches. This product is distributed under the brand name Skoal Bandits.

4 The second named Plaintiff is the Managing Director - Europe of the said company.

5 On or about the 20th day of December 1985 in purported exercise of the powers conferred upon him under Section 66 of the Health Act, 1947(No. 28 of 1947) the first named Defendant made the Health (restricted Article) Order, 1985 (S.I. No. 429 of 1985).

6 This Order provided that:-

"Whereas the Minister for Health is of opinion that tobacco in the form of finely-cut, moist tobacco contained in sachets or pouches and intended for use by being placed in the mouth, is likely, when accessible to the general public, to be used for purposes involving risk of serious injury to health or body; now therefore the Minister for Health hereby orders as follows:-"

(1) Tobacco in the form of finely-cut, moist tobacco contained in sachets or pouches and intended for use by being placed in the mouth shall be a restricted article for the purposes of Section 66 of the Health Act, 1947(No. 28 of 1947)".

7 Attached to the said Statutory Instrument was an Explanatory Note which provided that:-

"The effect of this Order is to make the tobacco product referred to a restricted article under Section 66 of the Health Act, 1947.Under this Section, it is an offence for a person, unless authorised by a permit granted by the Minister for Health, to import, manufacture, sell or otherwise dispose of or offer to keep for sale or other disposal, or advertise, a restricted article. Persons found guilty of an offence under the Section are liable to a fine not exceeding £100 or imprisonment for a term not exceeding six months or to both such fine and imprisonment and, in every case, to forfeiture of the restricted article."

8 Section 66 - (1) of the Health Act, 1947states that:-

"The Minister may by order provide that -"

9 (a) any instrument, appliance or apparatus of a class as respects which he is of opinion that the use by the general public of instruments, appliances or apparatuses of that class involves risk of serious injury to health or body or,

10 (b) a substance as respects which he is of opinion that it is likely, when accessible to the general public, to be used for purposes involving risk of serious injury to health or body, shall be a restricted article for the purposes of this Section."

11 Sub-section (2) provides that:-

"In the subsequent sub-sections of this Section, the expression "restricted article" means an article declared by an order under this section to be a restricted article for the purposes of this section."

12 Sub-section (3) provides that:-

"The Minister may grant to a registered medical practitioner a permit for the importation, manufacture, sale or other disposal of a restricted article and may attach to the permits such conditions (if any) as he thinks proper."

13 Sub-section (4) provides that:-

"Save so far as may be authorised by a permit under Section (3) of this section, it shall not be lawful for a person to import, manufacture, sell or otherwise dispose of, or offer to keep for sale or other disposal, a restricted article."

14 Sub-section (5) provides that:-

"It shall not be lawful for a person to advertise a restricted article".

15 Sub-section (6) provides that:-

"A person who contravenes sub-section ( 4) or (5) of this Section or who, having been granted and having availed of a permit under sub-section (3) of this Section, does not comply with the condition attached to the permit, shall be guilty of an offence under this Section, and shall be liable on summary conviction thereof to a fine not exceeding £100 or, at the discretion of the Court, to imprisonment for a term not exceeding six months or to both such fine and such imprisonment and, in every case, to forfeiture of the restricted article in relation to which the offence was committed."

16 The Plaintiffs in this case claim:-

17 (a) A declaration that the Health (restricted article) Order, 1985 (Statutory Instrument No. 429 of 1985) is ultra vires and void.

18 (b) A declaration that the Health (restricted article) Order, 1985 (Statutory Instrument No. 429 of 1985) is ultra vires the powers of the first named Defendant under Section 66 of the Health Act, 1947by reason of the failure of the said Defendant to comply with the principles of natural and constitutional justice and the principles of basic fairness of procedure as provided for in Article 40.3 of the Constitution of Ireland.

19 (2) A declaration that Part 6 of the Health Act. 1947(No. 28 of 1947) as amended, laying down provisions in relation to medical and toilet preparations and certain other articles, has no application to the first named Plantiff's tobacco product in the form of finely-cut, moist tobacco contained in sachets or pouches known as Skoal Bandits or to any tobacco product.

20 Before proceeding to deal with the facts in this particular case and the Statutory Instrument impugned, I think it desirable to refer to a number of cases and statements made in the course of the judgments thereon.

21 In the course of his judgment in Cassidy .v. Minister for Industry ( 1978 I.R. Page 297), the former Chief Justice stated at Page 305 of the Report that:-

"Under the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas and there is no other legislative authority. As a consequence where, as in this case, a Statutory Instrument made by a Minister is impugned, the Courts have the duty to enquire whether such instrument has been made under powers conferred, and for the purposes authorised, by the Oireachtas. If the powers conferred by the Oireachtas on the Minister do not cover what was purported to be done, clearly, the Instrument is ultra vires and of no effect. Equally, if the rule-making power given to the Minister has been exercised in such a manner as to bring about a result not contemplated by the Oireachtas, the Courts have the duty to interfere. Not to do so in such circumstances would be to tolerate the unconstitutional assumption of powers by great departments of State to the possible prejudice of ordinary citizens. If what the Minister seeks to do was not contemlated by the Oireachtas then, clearly, it could not have been authorised".

22 In the course of his judgment in the same case, Mr. Justice Henchy stated at Page 310 of the Report that:-

"The general rule of law is that where Parliament has by statute delegated a power of subordinate legislation, the power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. Otherwise it will be held to have been invalidly exercised for being ultra vires. And it is a necessary implication in such a statutory delegation that the power to issue subordinate legislation should be exercised reasonably. Diplock L.J. has stated in Mixnam's Properties Ltd. .v. Chertsey Urban...