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The Court of Appeal handed down judgment today upholding legislation which will prohibit the sale of tobacco from vending machines.
It rejected appeals brought by a subsidiary of Imperial Tobacco and members of the cigarette vending machine industry. They argued that the legislation was unlawful in that it contravened the free movement of goods provisions of EU law (Article 34 TFEU) and property rights protected by Article 1 Protocol 1 of the ECHR.
The majority of the Court of Appeal (the Master of the Rolls and Arden LJ, Laws LJ dissenting) held that the legislation fell within the broad margin of appreciation accorded in the field of public health and was proportionate. In doing so, they upheld the decision of the President of the Queen’s Bench Division who had dismissed the application for judicial review brought against the Secretary of State for Health.
On 27 June, in a further ruling, the Court unanimously refused permission to appeal to the Supreme Court and dismissed an application for interim relief to delay the commencement of the legislation, which enters into force on 1 October 2011.
Beginning on 17 October 2011, the Administrative Court will hear, over five days, the tobacco industry’s applications for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops. Among the Claimants are Imperial Tobacco, British American Tobacco, JTI/Gallaher and Philip Morris.
Nicholas Paines QC and Ian Rogers appeared for the Secretary of State for Health in the Court of Appeal and in the High Court. They also appear for the Secretary of State in the tobacco display prohibition litigation.
On 8 June 2011, Ian Rogers appeared for the United Kingdom at the oral hearing in a challenge to the Norwegian tobacco display prohibition, heard in the EFTA Court in Luxembourg (Philip Morris v Norway Case E-16/10, judgment is awaited). .
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