The New EU Tobacco Products Directive and Standardized Packaging: [in the Name of ‘Smooth Functioning of the Internal Market’

Abstract

This article conducts a selective legal analysis of the new Tobacco Products Directive 2014/40/EU, which was formally adopted in April 2014 and which, except for a few provisions, should be implemented in all EUMember States by 20 May 2016. The dominant focus of the article is on the labelling and packaging requirements (including standardized packaging). The labelling and packaging measures, despite ambitious and noble targets, have raised controversial debates about their effect in decreasing tobacco consumption. It has also begged the question whether these rules will contribute to facilitating free movement of tobacco products in the internal market as planned. In light of recent legal challenges and the ECJ’s Preliminary Ruling in Philip Morris Brands SARL and Others v. Secretary of State for Health, the article assesses the validity of the proposed measures under the principles of subsidiarity, proportionality and fundamental rights, as well as the chosen legal basis for the Directive. It continues with the examination of the minimum requirement of the Directive and the possibility for Member States to introduce further requirements relating to packaging. Overall, the article concludes that the Directive’s chosen model of partial harmonization presents a fresh approach to the regulation of labelling and packaging of tobacco products in the internal market. However, it might generate the same results as in the case of minimum harmonization. Namely, further standardization of packaging of tobacco products at the national level will lead to the lack of a harmonized approach, thereby affecting the smooth functioning of the internal market. As a result, new harmonizing rules will be required in the future.