In its judgment of 4 May 2016 (case C-547/14), the European Union Court of Justice (EUCJ) has clarified several questions concerning the Directive 2014/40/EU on the manufacture, presentation and sale of tobacco and related products. That directive provides in particular for the prohibition from 20 May 2020 of the placing on the market of tobacco products with a characterising flavour (namely menthol cigarettes) and for the standardisation of the labelling and packaging of tobacco products. In addition, it introduces special rules for electronic cigarettes. Poland, supported by Romania, challenges before the Court of Justice the prohibition of menthol cigarettes (Case C-358/14). In this case (C‑547/14) the questions were submitted by the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), in the context of a preliminary ruling concerning the interpretation and validity of a number of provisions of Directive 2014/40/EU. The ECJ examined several questions which raised doubts on the validity of new rules adopted in this Directive.

General prohibition of flavored tobacco products
The EUCJ confirmed the validity of Article 7 of Directive 2014/40, which prohibits the placing on the market of tobacco products with a characterising flavour, namely menthol cigarettes. The EUCJ found there were no grounds for invalidation since the Directive takes the view that those products could facilitate initiation of tobacco consumption or affect consumption patterns, which is also the view of the guidelines of the World Health Organisation Framework Convention on Tobacco Control (FTCT). Furthermore, according to the EUCJ, the EU-wide prohibition is an adequate way of “removing divergences” between the national rules concerning the composition of tobacco products (eg, different lists of permitted or prohibited flavourings), or preventing those rules from developing in divergent ways. The Court found also that the prohibition does not violate the proportionality principle. The prohibition does not go beyond what is necessary since the alternatives do not seem to achieve the objective sought.

Restrictions to product labelling
Another relevant question is Article 13(1) of Directive 2014/40 which prohibits, in essence, the inclusion on the labelling of unit packets and on the outside packaging, as well on the tobacco product itself, of any element or feature that is such as to promote a tobacco product or encourage its consumption. The elements and features that are prohibited may include texts, symbols, names, trademarks, figurative or other signs. The Court found, that the prohibition laid down in Article 13(1) is such as to protect consumers against the risks associated with tobacco use, and that prohibition does not go beyond what is necessary in order to achieve the objective pursued, even when elements and features forbidden include factually accurate information. According to the Directive’s recital 25 the mere indication of the emission levels for tar, nicotine and carbon monoxide on unit packets of cigarettes could be misleading, even when accurate, since “it leads consumers to believe that certain cigarettes are less harmful than others”. Consequently for example labelling elements which refer to taste, smell, any flavourings or other additives, or which resembles a food or a cosmetic product, or suggests that a certain tobacco product has improved biodegradability or other environmental advantages, are not allowed even when factually accurate and true.

Labelling and packaging standartisation
The Directive includes various rules concerning the labelling and packaging of tobacco products which relate, in essence, to the integrity of health warnings after the packet has been opened (Article 8(3) of Directive 2014/40), to the position and minimum dimensions of the general health warning and the information message (Article 9(3) of the directive), to the minimum dimensions of combined health warnings (Article 10(1)(g) of the directive) and to the shape of unit packets of cigarettes and the minimum number of cigarettes per unit packet (Article 14 of the directive). The EUCJ also confirmed validity of said provisions noting that although those requirements may, by their very nature, to some extent increase the similarity between tobacco products, the fact remains that they concern only certain aspects of the labelling and packaging of those products and therefore still allow for adequate opportunities for product differentiation.

Health warnings
As to the requirement of health warnings in the form of messages and a corresponding colour photograph covering 65% of the external front and back surface of each unit packet the EUCJ ruled that that the EU legislature was based on criteria deriving from the FCTC (requiring health warnings to cover ‘50% or more’) and acted within the bounds of its broad discretion and also in view of an high level of human health protection.

Implementation of Directive 2014/40 in Portugal
The Directive 2014/40 on the manufacture, presentation and sale of tobacco and related products was implemented by Law 109/2015 dated 26 August 2015 which amended the Tobacco Prevention Law (Law 37/2007, of 14 August 2007). Law 109/2015 is generally applicable as from 1 January 2016.