Published by: McCabe Centre for Law & Cancer
Date: June 2016
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About the paper
On 19 May 2016, the High Court of Justice of England and Wales handed down its decision dismissing the legal challenges to the United Kingdom’s tobacco standardized packaging (or plain packaging) laws brought by the four major multinational tobacco companies British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris, and a tipping manufacturer (manufacturer of paper for cigarette filter tips).
The High Court of Justice’s decision is a remarkable document. It runs to 386 pages, dealing meticulously with an enormous volume of evidence and a wide range of legal claims.
In our WHO Framework Convention on Tobacco Control (WHO FCTC) Knowledge Hub capacity, we work with a number of countries that are responding to legal challenges or threats of legal challenges to their tobacco control measures, and/or working to develop or implement tobacco control measures in ways that will strengthen them in the event that they do face legal challenge. We summarise and link to a number of relevant court decisions on our Knowledge Hub website.
While each legal challenge to tobacco control measures is unique, in the sense that laws, legal processes and litigation practice vary across jurisdictions, there is much that countries can learn from others’ cases – including through the similarities and differences in the ways in which legal issues are framed and argued, evidence is presented and considered, and international instruments (such as the WHO FCTC, WTO law and human rights law) are invoked and applied.
In this paper, we draw out what we consider to be the aspects of the High Court of Justice decision of widest relevance to litigation and policy development in other jurisdictions, highlighting concepts or arguments likely to feature in similar legal challenges, or that might inform governments’ consideration of how to develop and implement plain / standardized packaging (or other tobacco control measures).
This paper is not intended to provide a comprehensive summary of the High Court of Justice decision, or of the wide range of legal claims that were made under UK and European law. Rather, we focus on the following aspects, which are likely to have widest relevance to other jurisdictions around the world, and to other tobacco control measures
- the Court’s explanation of what the standardized packaging laws do and do not do
- the Court’s articulation of the competing values and interests at stake
- the Court’s recognition of the complementarity of individual tobacco control measures
- the Court’s recognition of the importance of tobacco control continuing to evolve in light of new research and changing circumstances
- the Court’s treatment of the ‘margin of appreciation’ to be afforded to governments’ regulatory measures, and the way in which the standard of review should be approached in the context of economic, social and scientific complexity
- the Court’s articulation of the nature and extent of property rights, particularly trade mark rights
- the Court’s findings that any infringement of rights effected by the laws under challenge is justified, and that no compensation is payable
- the many ways in which the Court cited and invoked the WHO Framework Convention on Tobacco Control (WHO FCTC) as relevant to the determination of the challenges