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Government victory in tobacco industry challenge to the "Tobacco Display Ban"

5 January 2012

R(Imperial Tobacco, BAT, Philip Morris and Gallaher) v Secretary of State for Health

Twice adjourned and listed as one of the top 10 cases of 2011 by The Lawyer, the tobacco industry's long running proceedings for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops have now concluded in the Government's favour. The tobacco manufacturers and retailers alleged that the prohibition of display infringed in particular the free movement of goods and freedom of expression provisions of the EU Treaty and the ECHR respectively. A five day hearing was fixed for early February 2012, but the Claimants have now discontinued proceedings.

Nicholas Paines QC, Ian Rogers and Owain Draper were instructed by the Secretary of State for Health.

In England, the ban will come into force in large shops, such as supermarkets, on 6 April 2012 and will protect young people from unsolicited promotions, helping them to resist the temptation to start smoking. It will also help and support adults who are trying to quit. Smoking kills more than 80,000 people in England alone every year. Small shops do not have to change their displays until 2015.

Wales, Scotland and Northern Ireland are also moving towards similar bans.

In a case run in parallel with the display challenge, the Court of Appeal upheld the prohibition of cigarette vending machines by a majority and set out in detail how the principles of proportionality and the margin of discretion applied in a public health context: R(Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437; [2011] 3 C.M.L.R. 37; [2011] A.C.D. 98. The judgment can be found here and see the previous news item here. Nicholas Paines QC and Ian Rogers also appeared for the Secretary of State in those proceedings.

In addition, Ian Rogers appeared at the oral hearing for the United Kingdom in support of Norway's case in the EFTA Court (Philip Morris Norway v Norway Case E-16/10), in which Philip Morris sought to strike down the Norwegian display ban: The EFTA Court  judgment can be found here.

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Ian Rogers QC