Enforcement case: The court in Rotterdam must solve a difficult puzzle

On Friday, September 2, Youth Smoke Prevention filed a lawsuit against VWS/NVWA over the cheat cigarette and the enforcement of the maximum emission standards for cigarettes. A report.

By the web editor

How should the judgment of the European Court of Justice of 22 February in the case concerning the enforcement of the maximum emission standards for cigarettes be interpreted? Opinions seemed to differ widely.

The plaintiffs, Youth Smoke Prevention, the municipality of Amsterdam and 14 health organizations, request in this case, through lawyer Phon van den Biesen, the effective enforcement of the legally prescribed maximum emission standards for tar, nicotine and carbon monoxide (TNCO) from cigarettes. For this, a different measurement method than the method now prescribed in the law must be used. After all, the ISO method has been shown to be influential because the tobacco manufacturers make holes in the filters through which extra air is drawn in by the testing machines. Smokers cover these gaps in practice. In 2018, the Norwegian Institute for Public Health and the Environment (RIVM) showed for 100 different cigarettes that with a measurement method that better approximates actual smoking behavior, the emission values ​​for TNCO were exceeded two to three times and sometimes even 26 times.

‘Make way for alternative method’

Van den Biesen claimed that the European Court of Justice, which has been asked for advice on this case, has cleared the way for the Netherlands Food and Consumer Safety Authority (NVWA) to use an alternative measurement method in its decision of 22 February 2022. In the expanded judgment, the court states, in so many words, that the existing measurement method can continue to be used by companies, but that when citizens request enforcement of the maximum emission standards for cigarettes, a method must be used “to measure the emission levels that can be achieved with the intended use of releasing a cigarette based on a high level of protection of human health, especially for young people”.

VWS: ‘Measurement method is only for industry’

The Secretary of State for Health, Welfare and Sport argued through a lawyer from the ministry that the Court’s judgment should be read differently. According to this lecture, the current ISO measurement method is mandatory under the European Tobacco Products Directive (TPD) and can only be changed in a European context, which the Secretary of State has been obliged to do for a number of years.

According to the Secretary of State, the TPD also primarily aims to bring unity to the single European market and as long as private individuals do not offer their homemade cigarettes for sale, the TPD does not apply to them. Whether the ISO measurement method prescribed in the TPD can be invoked against private individuals is irrelevant in this view because this measurement method would only be of interest to industry. In other words: according to VWS, the Court’s decision makes no difference to the meaning of the existing rules

VSK: ‘Adjust only in an EU context’

On behalf of the Association of Dutch Cigarette and Tobacco Manufacturers (VSK), director Jan Hein Sträter argued the same. According to him, adjustment of the measurement method is only possible in a European context, by which he seemed to have overlooked that this decision was made in a European context, and that by the highest European court. Furthermore, Sträter claimed that the measurement method and the maximum emission values ​​are inextricably linked. In other words: if you change the measurement method, the emission standards must also be adjusted.

A difficult puzzle

During the further hearing, the presiding judge called the EU Court’s order ‘a difficult puzzle’. On the one hand, the applicability of the ISO method to the tobacco sector is maintained, but on the other hand, the Court believes that citizens who request the enforcement of the maximum emission standards should not be defeated by this method (the ISO standard cannot be given to them). Be against). And if that is the case, the Court continues, then the enforcer must use a different method.

The word “if” therefore became the subject of discussion, with the judge appearing to question the claim that the TPD would only apply to businesses in order to protect the unity of the single market. “Does TPD have no meaning at all for private individuals?”, he wanted to know from VWS. There was no convincing answer to that.

‘Citizens suffer from the ISO method’

Van den Biesen pointed out that although the existing measurement method applies to companies, if citizens request enforcement of the maximum emission values, they will be told by the competent authority that this is not possible because the competent authority is tied to the same legal measurement. method. However, the Court of Appeal broke through the ‘crack’ with the ruling that this measurement method may not be invoked against citizens who request enforcement.

“In its judgement, the court has, in so many words, distinguished between companies and private individuals,” the lawyer said. “You can’t just skip over a decision from this court. Moreover, the court has paid a lot of attention to the substantiation of its judgment because it’s a very far-reaching judgment that applies to the whole of the EU. So it can’t just be pushed aside. The Court has very clearly set out the conditions that an effective measurement method must meet and that citizens must be able to trust.”

After a discussion about the practical implementation in the event of a judgment to be handed down by the court in favor of the plaintiffs, lung specialist Pauline Dekker, board member of Youth Smoking Prevention, had the last word. She pointed out that companies regularly recall products if the slightest harmful substance is found in them. “Tobacco kills 20,000 people every year, but the tobacco industry doesn’t care product recall. Instead, she continues with the worst imaginable form of cheating.”

A verdict would normally be expected after six weeks, but the chairman hinted that the court might need a little more time in this case.

tags: VAT | VWS | nvwa | RIVM | Smoking prevention Young people | cheat cigarette | tnco | ISO method | trial | The European Court of Justice | enforcement proceedings

Leave a Comment