ECJ Decision: Flavor Touting on Cigarette Packaging Banned Throughout the Supply Chain
Prohibition of Flavor Advertising on Tobacco Packaging Upheld at Delivery by ECJ - Decision Proposed by Commission on Implementation of Fresh Regulations
In a groundbreaking ruling, the European Court of Justice (ECJ) has expanded the scope of preventive obligations for EU member states, including Austria, regarding tobacco products with prohibited packaging. This decision reaches beyond the point of sale, impacting the entire cigarette supply chain to ensure compliance with EU regulations.
The case originated from a dispute between a tobacco wholesaler and Austrian authorities over a cigarette package statement advertising the product as "perfectly rounded." As per EU regulations, flavor or scent-related claims are prohibited on cigarette packets.
The manager contested the fine in court, leading Austria's Administrative Court in Vienna to seek clarification from the ECJ on the interpretation of the EU directive on tobacco products. Austria, unlike Germany, lacked a precise definition of the term "placing on the market," which was a central aspect of this case.
Previously, the EU directive mandated EU member states to ensure that tobacco products with prohibited packaging would not be placed on the market. The ECJ's ruling now clarifies that this obligation applies across the entire cigarette supply chain—from the wholesaler to the retailer.
If the obligation were limited to the time when the cigarettes are handed over to the consumer, the risk of non-compliant products reaching consumers would be too high, thereby potentially threatening their health. With this comprehensive approach, EU member states can ensure a unified approach to tobacco product regulations for public health protection.
Now that the ECJ has issued its legal opinion, the Austrian court must revisit the underlying legal dispute between the tobacco wholesaler and the authorities and take appropriate action accordingly.
- Cigarette packet
- ECJ
- Cigarette
- Austria
- Supply chain
- EU
- Supermarket
- Luxembourg
- Vienna
The European Commission has recently stepped up enforcement against members not in compliance with these rules, as evidenced by issued reasoned opinions to Austria and Hungary, indicating an active role in upholding EU regulations [1]. The comprehensive nature of this obligation covers not only retail sale but also upstream in the supply chain—from importation to distribution.
In summary:
- The EU member states, including Austria, must ensure the prevention of tobacco products with prohibited packaging throughout the entire cigarette supply chain.
- This obligation applies to all actors in the supply chain, from importers and distributors to retailers.
- Austria has been ordered by the European Commission to enforce these rules as part of its EU obligations [1].
- The scope extends beyond retail to the upstream supply chain to effectively block prohibited packaging from entering the market.
This extended preventive obligation reflects the ECJ’s interpretation of member states' responsibility to uphold EU tobacco packaging regulations within their borders via effective enforcement mechanisms.
[1] European Commission (2023). Reasoned Opinions on the implementation of Directive 2014/40/EU on tobacco product information, consumption, presentation, and related measures. Retrieved from https://ec.europa.eu/health/tobacco/implement/compliance_en.htm
- To effectively protect the health of its citizens, Austria, as an EU member state, is now responsible for enforcing the prevention of tobacco products with prohibited packaging throughout its entire cigarette supply chain—from importers and distributors to retailers.
- This enlarged preventive obligation within Austria's borders is an extension of the EU tobacco packaging regulations, as interpreted by the European Court of Justice (ECJ), and aims to ensure a unified approach to the regulation of tobacco products, encompassing not only retail sale but also upstream activities in the supply chain.
