The Rotterdam court has the last word on the cheat cigarette

Next Friday, September 2, the court in Rotterdam will deal with the question of how the cheat cigarette will end. This case, brought against the State Secretary for VWS by Youth Smoke Prevention, the municipality of Amsterdam and 15 health organisations, concerns the validity of the highly controversial method of measuring tar, nicotine and carbon monoxide (TNCO) emissions from cigarettes.

By the web editor

In a ground-breaking judgment, the European Court of Justice already ruled on 22 February that the current measurement method – as stipulated in European and Dutch law – may not be invoked against private individuals, because that method has not been properly disclosed. In addition, the Court ruled that the method to be used must better simulate smoking behavior in order to protect health, especially for young people.

The court in Rotterdam must now state that VWS (more specifically: the Dutch Food and Consumer Safety Authority (NVWA)) must meet the conditions set by the court so that cigarettes actually stay within the maximum legal emission values. The Court’s judgment in February applies to all 27 EU member states. The interpretation that the district court in Rotterdam has given it will be the forerunner for the entire EU. The tobacco industry, which is also present in the case, strongly opposes any change, while VWS takes an intermediate position.

Background

The European Tobacco Product Directive (TPD, 2014/40/EU) stipulates that cigarettes must release a maximum of 10 mg of tar, 1 mg of nicotine and 10 mg of carbon monoxide. To determine these values, a measurement method is prescribed in accordance with ISO standards.

Already in 2016, Youth Smoking Prevention during the criminal case against the tobacco industry led by lawyer mr. Bénédict Ficq, thanks to information from American whistleblower Jeffrey Wigand (The insider) discovers that the industry influences the measurement method by creating small holes in the cigarettes’ filters. When measuring the TNCO values, air is therefore drawn in, which dilutes the cigarette smoke. But smokers cover these holes with their lips and fingers, so they ingest much higher concentrations of TNCO.

In 2018, the Norwegian Institute for Public Health and the Environment (RIVM) investigated an alternative test method where the holes in the filters are taped and the frequency and intensity of inhalation of people’s smoking behavior is increased. This research found that all cigarettes release two to three and sometimes even 26 times the amount of TNCO that is legally allowed.

The case

Based on the RIVM findings, Smoking Prevention Youth et al asked the NVWA to take action against all these violations of the legal standards and remove all cigarettes from the market. The NVWA refused to comply and referred to the legally prescribed ISO method. An objection to the Ministry of Health, Welfare and Sport failed, after which Young Smoking Prevention went to court with the co-accused.

At court, the plaintiffs, represented by Mr. Phon van den Biesen, argued that the statutory maximum values ​​for TNCO emissions, which are intended to protect (relative) public health, outweigh the fraudulent statutory measurement method. Following a proposal from the plaintiffs, the judge then asked the European Court of Justice for an explanation of the European tobacco legislation through a series of “introductory questions”.

In February, the Court found that the ISO method, prepared by a private standardization institute in cooperation with the tobacco industry, has never been officially published in Official Journal of the European Union. European citizens have therefore never been able to become familiar with this method, which for that reason alone cannot be used against them, as it is called in legal terms. In other words, European citizens must be able to trust that a cigarette does not actually release more than 10 mg of tar, 1 mg of nicotine and 10 mg of carbon monoxide. Based on this judgment, the enforcement request from Smoking Prevention Youth et al. be reassessed on the basis of the criteria laid down by the Court of Appeal.

The case will be presented to the court in Rotterdam on 2 September 2022 at 9.30. The court has set aside two hours for this hearing.

tags: cheat cigarette | tnco | enforcement | nvwa | VWS | Smoking Prevention Young | ISO method | Canadian Intense Method | trial | European court

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