Judge decides to speed up appeal in enforcement case

The Industrial Complaints Board will consider the appeal in the enforcement case about the counterfeit cigarette as early as June 8. In the meantime, NVWA has been granted an adjournment to commence enforcement as directed by the Rotterdam District Court.

By the web editor

The implementation of the decision of the Rotterdam District Court in the enforcement case regarding the cheat cigarette is suspended until a decision on the appeal has been made. This was announced today by the Trade and Industry Appeals Tribunal (CBb) in response to the request for suspension by the Attorney General on behalf of the Ministry of Health, Welfare and Sport (VWS) and the Dutch Food and Consumer Product Safety Authority (NVWA). CBb’s substantive processing of the appeal takes place on 8 June. With this, the Board of Smoking Prevention Youth meets the request for expedited processing of the case. This request was supported by VWS/NVWA.

On January 13, a total of 12 lawyers gathered at the CBb rescue judge to deal with the request for suspension: Phon van den Biesen on behalf of Smoking Prevention Youth, two lawyers from State Attorney Pels Rijcken and nine lawyers from the offices of Wladimiroff, Hogan Lovells, Freshfields Bruckhaus Deringer and Allen & Overy, representing the tobacco companies Philip Morris, British American Tobacco, Japan Tobacco and Van Nelle Tabak/Imperial Tobacco respectively. Director Jan Hein Sträter himself participated on behalf of the Dutch association of cigarette and kerft tobacco manufacturers (VSK). Like VWS/NVWA, the four tobacco companies and VSK appealed in this case.

Enforcement with fraud-free method required

This case started in 2018 with a request by Smoking Prevention Youth to the NVWA for the maximum emission standards for cigarettes of 10 mg of tar, 1 mg of nicotine and 10 mg of carbon monoxide with a reliable measurement method that does not allow manipulation by tobacco manufacturers, as with the methods used so far , the ISO method is the case. The Norwegian Institute for Public Health and the Environment (RIVM) determined in 2018 that when measuring 100 cigarettes with the WHO Intense method, only 1 remained below the set standards. All other cigarettes exceeded the legal limits by 2 to 3 times. With the Intense measurement method, holes are taped in the filters of cigarettes, and the frequency and duration of inhalations is greater than with the ISO method. The Intense method therefore approaches smokers’ actual smoking behavior more closely.

Court of Justice of the European Union: ISO method not for private individuals

NVWA rejected the request, citing the law which prescribes the ISO method as the measurement method to be used. Smoking Prevention Youth eventually brought the case to court in Rotterdam. He submitted preliminary questions to the European Court of Justice in Luxembourg via an intermediate judgment. On February 22, 2022, the Court issued a judgment that means that the ISO measurement method can be used against companies, but not against citizens. This is because the ISO method has not been published in the Official Journal of the EU. Citizens cannot therefore know that method and must rely on the emission standards being measured with a method that measures the emissions that are “released during the intended use of a cigarette”.

The Rotterdam District Court then had no choice but to declare the NVWA’s refusal to enforce by a more equitable method unfounded. VWS/NVWA agrees with that decision in substance, but is still appealing to have the Rotterdam judgment upheld, so as to achieve a watertight legal basis for enforcement with the WHO Intense method. At the request of VWS/NVWA, the RIVM has already started to determine the emission levels of all available cigarettes in the Netherlands using the WHO Intense method. The results are expected in April.

‘Suspended sentence is unnecessary’

During the processing of the postponement request, state attorney Marije Batting argued that although the RIVM is already in the process of the new measurements, more time is needed before the enforcement can be carried out. The judge could therefore not answer the question of whether newly established exceedances of the emissions from the new measurements will lead to enforcement. In this context, British American Tobacco’s lawyer could not refrain from mentioning that a different measurement method would also involve other, higher maximum emission values, a claim for which there is no basis at all.

Van den Biesen argued against the public prosecutor’s arguments that the Rotterdam District Court has ordered the NVWA to make a decision that “suggests enforcement”. Therefore, if the NVWA indicates what concrete steps it will take to enforce the emission standards, it will already comply with the judgment and suspension will therefore not be necessary.

Judges are not there to interpret the EU judgment

On the grounds for the appeal itself, the Attorney General said that the ECJ ruling is ‘complicated’ because it has established that the WHO Intense method is applicable to private individuals, but that the ISO method at the same time continues to apply to companies. VWS/NVWA would like a more detailed explanation of this.

Van den Biesen was quite surprised by that. The Court of Appeal is not in favor of explaining a judgment of the European Court of Justice, he said. That assessment is not at all as complicated as it seems, he then argued, because it simply says that two measurement methods must be used side by side, the results of which must both remain below the set emission standards. The CJEU judgment is irrevocable and indeed, Van den Biesen argued, the court could immediately decide to declare VWS/NVWA’s appeal unfounded.

This does not change the fact that there are also five appellants on behalf of the tobacco industry. They must submit their grounds of appeal by February 17 at the latest, to which Rygningsforebyggende Ungdom and VWS/NVWA can respond by April 7 at the latest. The real treatment then follows on June 8.

‘Less cancer, that’s what it’s all about’

To emphasize the urgency of the whole matter, pulmonologist Wanda de Kanter, president of Smoking Prevention Youth, pointed out in a closing word that there is a linear relationship between the amount of tar in cigarettes and the number of cases of lung cancer. “As a doctor, I say that it is necessary to reduce cigarette emissions to reduce the number of cancers in our country. That is what this case is about.”

tags: the tobacco industry | trial | appeal | fake cigarette | nvwa | VWS | RIVM

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