Supreme Court stubs out Big Tobacco’s judicial review of UK plain packaging laws

13 Apr 2017 | by Monckton Chambers

The Supreme Court (Lord Mance, Lord Sumption and Lord Carnwath), on 11 April 2017, refused applications by British American Tobacco and Japan Tobacco International for permission to appeal against the Court of Appeal judgment in in R (British American Tobacco and others) v Secretary of State for Health [2016] EWCA Civ 1182.

This brings to an end long running litigation in which the tobacco industry sought to challenge the Standardised Packaging of Tobacco Products Regulations 2015, which make provision for the retail packaging of cigarettes and hand rolling tobacco to be standardised, substantially limiting the ability of tobacco companies to place branding on their products.

The request for a reference to the European Court of Justice was rejected. All EU law issues had been considered thoroughly by the courts below. The judgments of Mr Justice Green in the Administrative Court and the Court of Appeal, dealing with a multitude of grounds, 27 witness statements and 30 expert reports, run to nearly 500 pages. The volume of expert economic and econometric evidence presented a significant challenge to the courts given the limitations of the judicial review procedure, which is discussed in the High Court and Court of Appeal judgments: see news items here and here for links to the relevant judgments.

The stakes in this litigation were high. A report produced by Sir Cyril Chantler for the Government in 2014 concluded that “standardised packaging, in conjunction with the current tobacco control regime, is very likely to lead to a modest but important reduction over time on the uptake and prevalence of smoking and thus have a positive impact on public health”. The Government’s Impact Assessment considered that the expected societal benefits from reduced smoking prevalence and the resultant lives saved would be materially larger than the expected costs to society from reduced taxation revenue and costs to businesses, producing a net benefit to the public of approximately £25 billion. The tobacco industry’s claim for compensation against the Secretary of State for Health had been estimated by industry analysts to be up to £11 billion.

Ian Rogers QC, Julianne Kerr Morrison and Nikolaus Grubeck acted for the Secretary of State for Health.

The UK standardisation provisions went further than the EU-wide legislation introduced by the Tobacco Products Directive, particularly in relation to tobacco branding. One of the many issues in the domestic judicial review proceedings concerned the scope of the power to introduce further standardisation requirements, and the competence of the UK to do so. The tobacco industry also challenged the UK’s implementation of the Directive, on grounds including the invalidity of the Directive itself, in related proceedings: Case C-547/14 R (Philip Morris Ltd and others) v Secretary of State for Health. The challenge to the Directive was rejected by the European Court of Justice in May 2016 (see news item here).

Ian Rogers QC and Eric Metcalfe appeared for the United Kingdom in the Luxembourg proceedings.

The Supreme Court decision is reported in The Guardian here.