Cigarette vending machine ban challenge brought by tobacco company on EU and HRA grounds rejected

01 Dec 2010

R(Sinclair Collis Ltd) v Secretary of State for Health (NACMO intervening)

Administrative Court (Sir Anthony May, President of the Queen’s Bench Division)

The Administrative Court today handed down judgment dismissing judicial review challenges to primary and secondary legislation which bans the sale of tobacco from vending machines from 1 October 2011. The claim was brought by a subsidiary of Imperial Tobacco Ltd and was supported by the members of the National Association of Cigarette Machine Operators.

The Judge rejected the claim that certain provisions of the Health Act 2009 and the Protection from Tobacco (Sales from Vending Machines) Regulations 2010 contravened the free movement of goods provisions of EU law (Articles 34 and 36 TFEU) and the right to peaceful enjoyment of possessions (Article 1 Protocol 1 of the ECHR). The judgment contains a valuable discussion of the principles of proportionality and the margin of discretion. The Judge refused permission to appeal.

Nicholas Paines QC and Ian Rogers appeared for the Secretary of State for Health.

Nicholas Paines QC and Ian Rogers also act for the Secretary of State in judicial review claims brought by Imperial Tobacco, BAT, Philip Morris and Gallaher challenging legislation which will make it an offence, subject to certain exclusions and defences, to display tobacco products in shops. The hearing of those claims begins on 11 April 2010.

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