Irish Court Approves Challenge to EU Tobacco Directive

The Irish High Court has allowed two tobacco companies to challenge a new EU directive that prohibits the use of flavored heated tobacco products in electronic cigarettes.

The state is set to adopt new EU laws by July next year. However, the country's oldest tobacco manufacturer, PJ Carroll and Co Ltd, and UK marketing and sales company, Nicoventures Trading Ltd, are claiming that the EU directive is invalid. They are challenging Ireland's Minister of Health and Minister of Justice.

Under previous regulations, flavoring tobacco products during heating was not prohibited, but the European Commission has made changes to this and is hoping that member states will implement the ban before July 23.

These products require smokers to consume half the amount of tobacco compared to traditional cigarettes. They are electronic devices powered by batteries and are used to inhale heated tobacco instead of burning it. This process produces an aerosol containing nicotine, which the user then inhales.

They come in various flavors such as bubble gum, chocolate, and marshmallow. Critics argue that these flavors attract young users, while proponents believe they can help those trying to quit smoking.

In 2021, PJ Carroll, which holds a 10% market share in the Irish electronic cigarette market, announced that it is taking steps to commercialize heated tobacco products in the country, including flavored products.

However, the company stated that the EU ban on these products severely impairs its ability to "fully leverage unique opportunities and become the first company to launch heated tobacco products for adult smokers in the Irish market, otherwise they will continue to smoke.

Simon Carroll, director and trade manager of PJ Carroll, has stated in a sworn affidavit that the ban will also harm significant investments by British American Tobacco (BAT) group, which owns Irish and British companies, in developing "products". Such products would reduce health risks compared to traditional cigarettes while still meeting the preferences of Irish adult smokers, he said, adding that otherwise they will continue to smoke.

He stated that the restriction also has significant effects on the implementation of public health policies and anti-smoking campaigns, as traditional cigarettes have acceptable alternatives.

Tobacco companies PJ Carroll and Nicoventures have written a letter to the Minister for Health and the Attorney General, but have been informed that it is too early to challenge in any Irish court as many applicants, including PJ Carroll and Nicoventures, have already initiated a direct European Union challenge in the European Court of Justice (CJEU).

PJ Carroll and Nicoventures submitted an application to challenge the upcoming implementation of a directive in Ireland, which was confirmed by the Health Minister to take effect in July next year. The application was submitted to Judge Charles Meenan on Wednesday. As the application was unilaterally filed, only the plaintiff's representative appeared in court. The purpose of the application is to challenge the directive's intention to be converted into Irish law.

PJ Carroll and Margaret Gray SC of Nicoventures argue that their case is based on the accusation that the European Commission illegally extended the directive to cover their clients' products, without providing proper reasoning.

These companies claim that, among other things, the new directive is invalid because it constitutes an illegal exercise of power under the previous Tobacco Products Directive (TPD).

They also stated that the committee's assessment of "significant changes in circumstances" (when introducing a new ban) goes beyond the scope of the TPD's authority.

The court also learned that these companies will request to bring this matter before the European Union court for an initial ruling.

The judge expressed satisfaction with the approval but stated that he believed the mention of the CJEU must be dealt with first before addressing any other matter. He said that the case may return next month.