6 November 2022

Dutch supervisor on the wrong track with filter cigarettes

Category: Tobacco laws

The NVWA has wrongfully refrained from enforcing tobacco regulations in the Netherlands that apply to filter cigarettes. The District Court of Rotterdam has determined that on Friday, November 4 in proceedings instituted by various bodies that point out the dangers of filter cigarettes to health. This decision will bring uncertainty for the tabacco industry.

Insufficient control on filter cigarettes

The Rotterdam District Court ruled in favor of the Stichting Rookpreventie Jeugd (Youth Smoking Prevention Foundation) in the proceedings it brought against the Dutch Food and Consumer Product Safety Authority (NVWA). The NVWA is responsible for enforcement of the Tobacco Act in the Netherlands. The Foundation had asked the NVWA to take enforcement action against so-called sham cigarettes. It argued that smokers of filter cigarettes ingest far more of the harmful substances tar, nicotine and carbon monoxide than is permitted under the European Tobacco Directive (Directive 2014/40/EU).

Enforcement of tobacco laws insufficient according to Dutch Court

The court ruled that the NVWA could not rely on the measurement methods in the Tobacco Directive when assessing the Foundation’s enforcement request. Based on the answers provided by the Court, the Court finds that the measurement method used to determine whether filter cigarettes sold in the Netherlands comply with the limit values for tar, nicotine and carbon monoxide set out in the Tobacco Directive does not comply with the Tobacco Directive. The court reached that opinion because the Tobacco Directive requires measurement of the amount of tar, nicotine and carbon monoxide released from smoking a filter cigarette in the normal way. However, the prescribed measurement method does not measure that.

Incorrect measure method applied for testing cigarettes

The method used to measure the emission levels of tar, nicotine and carbon monoxide from the filter cigarettes sold in the Netherlands is the method described in the ISO standards. The court finds that that method does not comply with the EU Directive. It is not disputed that when using the method as described in the ISO standards, the filter is not completely or partially sealed by the equipment used as does happen when a person smokes a cigarette, namely by the fingers and/or lips of the smoker. Manufacturers have deliberately anticipated this by inserting small holes in the filter which, when measured using the method described in the ISO standards, draw in additional air that dilutes the emissions. Thus, this does not measure the emission levels released by the intended use of a cigarette.

Legal uncertainty for the tobacco industry

The Court realizes that this interpretation has negative consequences for the legal certainty that the tobacco industry believed it could derive from Article 4, paragraph 1, of the Directive. However, this is the consequence of a situation such as the present one in which private individuals (individuals in general) invoke the application of Union law against the government that must apply/enforce this law against other private individuals (companies). The situation at hand, which is unique in that methods of measurement and verification contained in ISO standards referred to in a directive may be relied upon against a certain group of private individuals and not against another group of private individuals, and where an interest group representing the latter group asks a national regulator for enforcement, resembles the doctrine of reverse vertical direct effect (cf. Wells, ECLI:EU:C:2004:12, para. 57 and ECLI:NL:RVS:2007:BB9488, para. 2.8.8).

Dutch tobacco authority ordered to apply Tobacco Regulation correctly

In view of the objective of a high level of public health protection pursued by that provision, as further described in paragraph 8 of the preamble to the Directive – “Tobacco products are not ordinary products, and in view of the extraordinarily harmful effects of tobacco on human health, great importance should be attached to the protection of public health, in particular in order to reduce smoking among young people.” – is the sale of filter cigarettes in the Netherlands that have not been established to comply with the limits of article 2.1. of the Regulations in violation of that provision of the Regulations. This means that NVWA wrongly rejected the request to take enforcement action. NVWA will have to make a new decision on the objection within six weeks, which will entail enforcement action.

Apart from that NVWA may appeal from the judgement within 6 weeks.