Out of Sight Out of Mind - Towards a New EU Tobacco Products Directive
Alberto Alemanno
HEC Paris - Law Department
Columbia Journal of European Law, Vol. 18, No. 2, 2012
Abstract:
This article offers a detailed legal and policy analysis of the most far-reaching and already controversial measures presently envisaged by the reform of the EU Tobacco Products Directive, standardized packaging and visual display bans of tobacco products, under EU law. In line with the WHO Framework Convention on Tobacco Control, while the former prohibits logos, colours, brand images, and promotional elements on packaging other than brand names displayed in a mandated size, font and place, the latter forbids the display of tobacco products at points of sale. Although the analysis predominantly focuses on the adoption of EU-wide schemes mandating these measures within the framework of the revision of the Tobacco Products Directive, it also discusses the legal implications stemming from the adoption of similar mechanisms at the national level. While both actual and potential obstacles stemming from the enactment of national schemes may effectively substantiate the EU’s competence to embrace both standardized packaging and display ban, their inclusion in the new Directive is still wrought with legal obstacles. The article examines how these measures score under the principles of conferral, proportionality and subsidiarity as well as the trademark system and the fundamental rights regime. Once more, a legislative initiative in the field of tobacco is set to test, under the pressure of the relevant industry, the outer limits not only of EU’s legislative action but also of its underlying decision-making process.
This article offers a detailed legal and policy analysis of the most far-reaching and already controversial measures presently envisaged by the reform of the EU Tobacco Products Directive, standardized packaging and visual display bans of tobacco products, under EU law. In line with the WHO Framework Convention on Tobacco Control, while the former prohibits logos, colours, brand images, and promotional elements on packaging other than brand names displayed in a mandated size, font and place, the latter forbids the display of tobacco products at points of sale. Although the analysis predominantly focuses on the adoption of EU-wide schemes mandating these measures within the framework of the revision of the Tobacco Products Directive, it also discusses the legal implications stemming from the adoption of similar mechanisms at the national level. While both actual and potential obstacles stemming from the enactment of national schemes may effectively substantiate the EU’s competence to embrace both standardized packaging and display ban, their inclusion in the new Directive is still wrought with legal obstacles. The article examines how these measures score under the principles of conferral, proportionality and subsidiarity as well as the trademark system and the fundamental rights regime. Once more, a legislative initiative in the field of tobacco is set to test, under the pressure of the relevant industry, the outer limits not only of EU’s legislative action but also of its underlying decision-making process.
Number of Pages in PDF File: 47
Keywords: EU Law, Plain Packaging, Display Bans, WHO Framework Convention on Tobacco Control, Legal Basis, Subsidiarity, Proportionality, Fundamental Rights, EU Trademark, TRIPs
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