The Tobacco Industry’s Challenge to the United Kingdom’s Standardised Packaging Legislation – Global Lessons for Tobacco Control Policy?

Abstract

In 2015, legislation imposing a standardised packaging regime for tobacco products was passed by the United Kingdom Parliament. The Standardised Packaging of Tobacco Products Regulations 2015 (UK) came into effect fully from 21 May 2017 and were contested vigorously by the tobacco industry, both through the legislative consultation process and in the courts. This article focuses on the claim for judicial review brought by the industry against the Regulations, R on the Application of British American Tobacco Limited v The Secretary of State for Health. In that case, the introduction of standardised packaging was challenged on a number of grounds, including proportionality, compatibility with the right of property and with international and European Union rules on the protection of intellectual property. All these arguments were rejected in forceful terms by Green J in the High Court, and again on appeal, by the Court of Appeal. This article sets out the industry’s claims in detail and explores the grounds on which the legislation was upheld. It also outlines the European Union legal context within which the legislation operates, including the important judgment of the Court of Justice of the European Union in Philip Morris Brands SARL and Others v Secretary of State for Health (C-547/14). It is suggested here that the reasoning in these judgments may prove instructive well beyond the borders of the United Kingdom.