United States Tobacco (Ireland) Ltd v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1993
• Neutral Citation: 1991 WJSC-HC 1446
• Docket Number: [1990 No. 871P],No. 871p/1990
• Court: High Court
• Date: 01 January 1993

UNITED STATES TOBACCO (IRL) LTD v. IRELAND

BETWEEN

UNITED STATES TOBACCO (IRELAND) LIMITED AND UNITED STATES TOBACCO INTERNATIONAL INC.

PLAINTIFFS

AND

IRELAND, MINISTER FOR HEALTH AND ATTORNEY GENERAL

DEFENDANTS

1991 WJSC-HC 1446

No. 871p/1990

THE HIGH COURT

Synopsis:

EUROPEAN COMMUNITIES

Trade

Restriction - Member State - Goods - Importation - Prohibition - Justification - Public health - Protection - Degree - Proportionality of means of protection - Oral smokeless tobacco product - Harmful effect - Whether effective protection could be provided by means other that prohibition of imports - Tobacco (Health Promotion & Protection) Act, 1988, s.. 22, 6 - Treaty of Rome (EEC), articles 30, 36 - Council Directive 83/189/EEC of 28/3/83 as amended by Council Directive 88/182/EEC of 22/3/88; Council Directive 89/622/EEC of 13/11/89 - (1990/871 P - Blayney J. - 19/2/91) - [1993] 1 I.R. 241

|United States Tobacco (Ir.) Ltd. v. Ireland|

STATUTE

Validity

Community law - Trade - Restriction - Prohibition - Justification - Public health - Protection - Degree - Principle of proportionality - (1990/871 P - Blayney J. - 19/2/91) 1993 1 IR 241

|United States Tobacco (Ir.) Ltd. v. Ireland|

TRADE

Restriction

Prohibition - Validity - Community law - Member State - Goods - Importation - Bann - Justification - Protection of health and life of humans - Proportionality of means of protection - Oral smokeless tobacco product - Harmful effect - Whether effective protection could be provided by means other than prohibition of imports - (1990/871 P - Blayney J. - 19/2/91) - [1993] 1 I.R. 241

|United States Tobacco (Ir.) Ltd. v. Ireland|

Citations:

TOBACCO (HEALTH PROMOTION & PROTECTION) ACT 1988 S6

TREATY OF ROME ART 30

EEC DIR 83/189

EEC DIR 89/622

R V HENN & DARBY 1979 ECR 3795

TREATY OF ROME ART 36

TOBACCO PRODUCTS ( CONTROL OVER ADVERTISING, SPONSORSHIP & SALES PROMOTION) NO 2 REG 1986 SI 107/1986

TOBACCO (HEALTH PROMOTION & PROTECTION) REG 1990 SI 39/1990

TREATY OF ROME ART 177

SIMMENTHAL SPA V ITALIAN MIN FOR FINANCE 1976 ECR 1871

COMMISSION OF THE EUROPEAN COMMUNITIES V ITALIAN REPUBLIC 1982 ECR 2187

OFFICIERE VAN JUSTICE V PEIJPER 1976 ECR 613

MELKUNIE 1984 ECR 2367

MINISTERE PUBLIC V CLAUD MULLER & ORS 1984 ECR 1511

SANDOZ 1983 ECR 2445

FRANS-NEDERLANDSE MAATSCHAPPIJ VOOR BIOLOGISCHE PRODUCTEN 1981 ECR 3277

STATE V MOTTE 1987 1 CMLR 663

EEC DIR 89/622 ART 1

EEC DIR 89/622 ART 8(2)

EEC DIR 89/622 ART 8(1)

EEC DIR 88/182

EEC DIR 89/622 ART 8

TREATY OF ROME ART 31

TREATY OF ROME ART 32

TREATY OF ROME ART 33

TREATY OF ROME ART 34

1 Judgment of Mr. Justice Blayney delivered the 19th day of February 1991.

2 Section 6 of the Tobacco (Health Promotion and Protection) Act 1988provides as follows:-

3 2 "6 (1) Any person who imports, manufactures, sells or otherwise disposes of, or offers for sale or other disposal, or advertises, an oral smokeless tobacco product shall be guilty of an offence and shall be liable -

4 (a) on summary conviction, to a fine not exceeding £1,000, or

5 (b) on conviction on indictment to a fine not exceeding £10,000.

6 (2) In this section "oral smokeless tobacco product" means any product or substance, made wholly or partly from tobacco, which is intended for use, unlit, by being placed in the mouth and kept there for a period, or by being placed in the mouth and sucked or chewed."

7 The Plaintiffs claim that this section is invalid as being in breach of Article 30 of the Treaty of Rome which is in the following form:-

"Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States."

8 The Plaintiffs claim in the alternative that Section 6 is unenforceable by reason of non-compliance with two Directives of the Council of the European Community, being Directives 83/189/E.E.C. and 89/622/E.E.C. which were referred to in argument as the "notification" Directive and the " labelling" Directive.

9 While the Plaintiffs" main claim is based on Article 30, the issue in the case is not in fact concerned with that Article as the Defendants (to whom I shall refer collectively as the State) concede that it is breached by Section 6. It would have been impossible to argue otherwise as in Regina .v. Henn and Darby 1979 E.C.R. 3795 the Court of Justice of the European Communities held that a total ban contravened the Article. The Court said in its judgment at page 3812:-

"The first question asks whether a law of a Member State which prohibits the import into that State of pornographic articles is a measure having equivalent effect to a quantatitive restriction on imports within the meaning of Article 30 of the Treaty."

10 That article provides that "quantatitive restrictions on imports and all measures having equivalent effect" shall be prohibited between Member States. It is clear that this provision includes a prohibition on imports inasmuch as this is the most extreme form of restriction. The expression used in Article 30 must therefore be understood as being the equivalent of the expression "prohibitions or restrictions on imports" occurring in Article 36."

11 The main issue in the case arises under Article 36 of the Treaty which provides as follows:-

"The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States."

12 The State's contention is that the ban on oral smokeless tobacco contained in Section 6 is justified on the grounds of the protection of health and life of humans. The Plaintiffs" answer to this is firstly, that the ban is not so justified, and secondly, that even if it could be, it offends the principle of proportionality, that is to say, that the objectives for which the ban was introduced could have been achieved by a measure which was less restrictive of the free circulation of goods in the Community.

13 The Plaintiffs do not contend that the ban is either a means of arbitrary discrimination or a disguised restriction on trade between Member States. Counsel stated a number of times in the course of his submissions that the Plaintiffs accept that the ban was enacted bona fide in the interests of public health.

14 The Plaintiffs do not contend either that oral smokeless tobacco should be freely on sale available to everyone without distinction of age, or that there should be no restrictions on its being advertised, or that they should not be obliged to have a warning on their products that they could be dangerous to health. As part of their argument on the principle of proportionality, it was submitted that the restrictions currently in force here in regard to cigarettes, pipe tobacco, cigars, cigarillos and chewing tobacco, under the Tobacco Products (Control Over Advertising, Sponsorship and Sales Promotion) No. 2 Regulation 1986 (S.I. No. 107 of 1986) and the Tobacco (Health Promotion and Protection) Regulations 1990 ( S.I. No. 39 of 1990) could be applied to oral smokeless tobacco and they would be adequate to achieve the State's objectives to protect the health and life of the citizens of this country.

15 One of the requirements of the 1986 Regulation is that advertisements for chewing tobacco, and the front of packages of chewing tobacco, should carry the statement "This product may cause oral cancer". It is part of the Plaintiffs" case, accordingly, that a statement in this form in advertisements for oral smokeless tobacco, and on packages of the product, and a prohibition on its sale to persons below the age of 16, would adequately protect the health and life of our citizens. Section 6 is being challenged, therefore, not so much on the ground that no protection is required against the Plaintiffs" product but rather on the ground that the ban contained in Section 6 goes beyond what is required to give the necessary protection and so offends against the principle of proportionality. That was the principal issue argued in the case, and the principal issue which I now have to decide. In order to do so it is necessary to consider the law which is applicable and the evidence I heard as to the nature of oral smokeless tobacco and the effects it may have on the health of people who use it, but this must be prefaced by an outline of the circumstances in which the issue arises.

16 The first named Plaintiff is a company incorporated in Ireland and is a wholly owned subsidiary of the second named Plaintiff which is an American Corporation and which in turn is a wholly owned subsidiary of United States Tobacco Inc., a large corporation with a number of other businesses as well as tobacco. The second named Plaintiff has had since 1985 a factory in Scotland for the manufacture of oral smokeless tobacco. Four different brands are manufactured - Copenhagen, which has been manufactured by United States Tobacco Inc since 1822; two Skoal products, one long cut and one fine cut, which came on the market in 1934, and Skoal Bandits which were first marketed in 1973. The first three products consist of finely cut loose tobacco packed in a tin. They are used by a small portion of the tobacco being placed in the mouth between the gum and the lip and left there for a period which may vary from minutes to hours. The Skoal Bandits brand takes a different form though used in the same way. The tobacco, instead of being loose, is enclosed in small paper packages...