The cheat cigarette: Tobacco companies go on the attack with a battery of Zuidas lawyers

In the anti-smoking prevention youth counterfeit cigarette enforcement case against the Dutch Food and Consumer Safety Authority (NVWA), the Big Four tobacco companies are counterattacking with the help of the biggest law firms in the Netherlands. Tomorrow, January 13, the Trade and Industry Appeals Tribunal (CBB) interim relief judge will consider NVWA’s request, pending the appeals process, not to start removing cigarettes from the market that are much more toxic than allowed under to the law. Smoking Prevention Young people only want to agree to this if the CBB decides to speed up the processing of the complaint. The tobacco companies’ lawyers are trying to delay the proceedings.

On 4 November 2022, the Rotterdam District Court ruled in the enforcement case brought by Youth Smoking Prevention (RPJ) together with 13 other parties, including the municipality of Amsterdam, against the NVWA and the Ministry of Health, Welfare and Sport (VWS). . The claimants, represented by Mr Phon van den Biesen, requested that the maximum cigarette emission standards of 10 mg of tar, 1 mg of nicotine and 10 mg of carbon monoxide be maintained, but with a reasonable measurement method. After all, the ISO method used today, which is prescribed by law, seriously underestimates the harmful emissions of cigarettes, as the Norwegian Institute for Folkesundhed og Miljø (RIVM) already established in 2018. Tobacco manufacturers can manipulate the ISO measurements, for example by making holes in the filters. Another measurement method (Canadian Intense/WHO Intense) comes closer to actual smoking behavior and shows excesses of 2 to 3 times the legal norms.

After the European Court of Justice, at the request of the court, decided a few key points of dispute in favor of Smoking Prevention Youth, the Rotterdam District Court granted RPJ et al. and ordered the NVWA to begin enforcement within six weeks. Enforcement would mean that virtually all filter cigarettes available in the Netherlands would have to be withdrawn from the market. Within this period, NVWA and VWS appealed the court’s decision, not to challenge that decision, but precisely, they argue, to obtain a stronger legal basis for enforcement with the WHO Intense method. Since the RIVM study in 2018, VWS has been working together in Europe on a new measurement method to determine the emissions of cigarettes.

Tobacco companies join the cause

Just before the appeal deadline expired, the Association of Dutch Cigarette and Kerft Tobacco Manufacturers (VSK) also filed an appeal, and the four multinational tobacco companies Philip Morris International (PMI), British American Tobacco (BAT), Japan Tobacco International (JTI) and Van Nelle Tabak from Imperial Tobacco Nederland (IT) have joined the fight with each appealing against the judgment of the court in Rotterdam. The tobacco companies are represented by some of the largest law firms in the Netherlands. PMI called Wladimiroff Advocaten (Mr. Robbert de Bree), BAT is represented by Hogan Lovells (Mr. Hein van den Bos), JTI by Freshfields Bruckhaus Deringer (Mr. Winfred Knibbeler, Mr. Tess Heystee, Mr. Alvaro Pliego Selie) and Imperial chose Allen & Overy (Mr. Kees Schillemans, mr. Eline Vancraybex, mr. Marik Pannekoek).

When filing a complaint, most lawyers immediately requested an extension of the deadline for submitting reasons for their complaint: two firms requested 8 weeks, BAT’s lawyer no less than 12 weeks. It is still unclear how CBB reacted to this.

The case seems more complicated than it is

Lawyer Phon van den Biesen, assisted from now on by Mr Linde Bryk, looks forward to the appeal case with confidence: “This case may seem complicated, but is actually very simple. In its judgment of 22 February 2022, the EU Court of Justice has given further explanation to the Tobacco Products Directive. That explanation has since become law and implies that in order to protect public health, especially for young people, a different measurement method than the ISO method must be used to determine the emissions from cigarettes. That the ISO method also continues to apply to industry does not detract from this; the most important thing is that two different measurements in the future must show that filter cigarettes comply with the statutory maximum values ​​for tar, nicotine and carbon monoxide.”

The court hearing next Friday is also a so-called ‘preliminary hearing’, where the further course of the appeal case, including the accelerated processing requested by RPJ, will be discussed and determined.

For more information on this case, visit www.rookpremiejeugd.nl

tags: appeal | enforcement case | VanNelle | Canadian Intense Method | ISO method | fake cigarette | enforcement | PMI | JTI | BAT | nvwa

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