Out of Sight Out of Mind - Towards a New EU Tobacco Products Directive

Abstract

This article offers a detailed legal and policy analysis of the most far-reaching and already controversial measures presently envisaged by the reform of the EU Tobacco Products Directive, standardized packaging and visual display bans of tobacco products, under EU law. In line with the WHO Framework Convention on Tobacco Control – the former prohibits logos, colors, brand images, and promotional elements on packaging other than brand names displayed in a mandated size, font and place, whereas the latter forbids the display of tobacco products at points of sale. Although the analysis predominantly focuses on the adoption of EU-wide schemes mandating these measures within the framework of the revision of the Tobacco Products Directive, it also discusses the legal implications stemming from the adoption of similar mechanisms at the national level. While the actual case law may effectively substantiate the EU’s competence to embrace both standardized packaging and display ban, the introduction of these measures, by revealing the shifting nature of the EU overall tobacco policy from the free movement imperative to a public health objective, questions the almost limitless EU’s authority to harmonize pursuant the internal market legal basis. In the light of the above, the article examines how these measures score not only under the principle of conferral but also those of proportionality and subsidiarity as well as the trademark system and the fundamental rights regime. Once more, a legislative initiative in the field of tobacco is set to test, under the pressure of the relevant industry, the outer limits not only of EU’s legislative action but also of its underlying decision-making process.

Keywords: EU Law, Plain Packaging, Display Bans, WHO Framework Convention on Tobacco Control, Legal Basis, Subsidiarity, Proportionality, Fundamental Rights, EU Trademark, TRIPS

JEL Classification: K1, K2, K20, K32, K33