R (British American Tobacco & others) v Secretary of State for Health

The High Court has rejected the judicial review claims brought by a number of the world’s leading tobacco manufacturers which were challenging the UK legislation introducing the standardised packaging of tobacco products. In doing so, the court has also given some useful guidance on how courts should approach proportionality claims involving complex technical evidence.

Standardised tobacco packaging

The Standardising Packaging of Tobacco Products Regulations 2015 (the “Regulations”) came into force on 20 May 2016. Parliament introduced the Regulations in order to implement part of the EU Tobacco Products Directive (directive 2014/40/EU). The EU directive adopted the mandatory part of the Framework Convention on Tobacco Control, a framework that has been adhered to by 180 countries worldwide.

The effect of the Regulations will be to substantially limit the ability of tobacco manufacturers to advertise or place branding on the outer packaging or the tobacco product itself. The name of the brand and type of tobacco produce can still be communicated but it will be highly regulated (restricted to a standardized size, font and colour) in order to strip away as much of the attractiveness of the branding or advertising as possible. Health warnings must also cover 65% of the front and back of packages. The Regulations do not apply to all tobacco products (pipes and cigars are excluded) and the manufacturers have a one year transitional period to allow for the sale of old stock.

The first country to introduce standardised packaging restrictions was Australia in 2012. Parliament conducted a post-implementation review in Australia which was published in 2016 but this evidence was not available to Parliament at the time the Regulations were introduced.

The Challenges

The tobacco companies challenged the Regulations as unlawful under international law, EU law and domestic common law, focusing on the alleged breach of their intellectual property rights. It was argued that the Regulations trespassed the companies’ right to property under Article 1 of Protocol 1 of the European Convention on Human Rights. The companies claimed that the Regulations were disproportionate in light of the new expert evidence that they adduced, which they said demonstrated that the standardised packaging rules were not working in Australia and were in fact increasing not decreasing the use of tobacco. Accordingly, they alleged that another equally effective but less restrictive measure could have been implemented.

Findings

The High Court rejected all of the applications for judicial review finding that the Regulations were lawful when they were promulgated by Parliament and are lawful now in light of the most up to date evidence.

In particular the Court referred to the fact that Parliament had acted in accordance with the Framework Convention on Tobacco Control, which Mr Justice Green referred to as ‘a consensus formed at the broadest of international levels’.

The Court also rejected the Claimants’ argument that increased taxation would be a more effective and less restrictive policy. Mr Justice Green criticised the evidence put forward on this point and found that a mere assertion by the Claimants that some other measure is equivalent and less intrusive was not sufficient.

Proportionality Guidance

In his judgment Mr Justice Green carried out a detailed review of the expert evidence that was put before him and made some useful comments on how courts should approach proportionality challenges involving complex technical evidence. Mr Justice Green emphasised that evidence must be presented to the court so that it is comprehensible to non-experts and a failure to do so could lead to a claimant failing in their challenge regardless of the merits of the case. Mr Justice Green went on to set out a process that he said should be adopted in future cases involving complex evidence. This nine stage process highlights the importance of the parties and their experts identifying the evidence that is relevant to the dispute, narrowing down the issues that are in dispute between the parties and both parties setting out their opinions on what the court has to decide in order to resolve the dispute.


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Melanie Carter

Partner and Head of Public & Regulatory

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Posted on 23/05/2016 in Legal Updates

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