News In Focus

Appeal court rejects tobacco sales law challenge

11 October 2012

The tobacco industry has lost a further round of its legal challenge against the Scottish Parliament law banning tobacco displays and vending machines.

Appeal court judges in the Court of Session yesterday rejected a case that provisions of the Tobacco and Primary Medical Services (Scotland) Act 2010 were within the competence of the Scottish Parliament.

Sinclair Collis, a subsidiary of Imperial Tobacco and the UK's biggest cigarette vending machine operator, argued that the effect of the Act was that the use of vending machines would cease to be legal and therefore act as a restriction on their importation. It would thus interfere with trade within the EU contrary to article 34 of the Treaty on European Union and would be illegal unless justified by the state under article 36.

In order to establish an article 36 justification, the Scottish Government had to show that the ban was the "least restrictive measure" to achieve the aim of reducing smoking amongst the under-18s, but the Parliament had simply adopted the Government's fundamental policy position and refused to give proper consideration to the alternatives.

The court (Lords Carloway, Bonomy and Osborne) said that if it had had to decide whether article 34 applied to the provisions, it would have referred the case to the European Court for a preliminary ruling.

As regards article 36, the vending machine ban was part of a general strategy, which included several other measures, designed to reduce smoking and thereby improve public health. It was not disputed that the objective was legitimate; the question was whether the ban was a proportionate method of attaining the objective.

For the state to pass this test was likely to involve demonstrating, by reference to extraneous materials, that the measure was capable of attaining the stated purpose. Tha Parliament's reasoning was not relevant: what mattered was "whether, as a matter of objective fact, there existed material which justified the measure in terms of the protection of health". The state did not require to prove that there were no conceivable alternatives.

Here the available material demonstrated that many young persons obtained cigarettes from vending machines, which had no age-restriction mechanisms to prevent purchase. Even in a "relatively calm environment", 20% of attempts by young persons to secure a purchase from a machine were successful. The Government and Parliament were "entitled to the view that the ingenuity of youth was quite adequate to circumvent age-restriction mechanisms, especially in dark, busy public houses and night clubs. The court does not consider that the Government or Parliament required to conduct a series of empirical scientific experiments to establish the obvious but, in any event, the statistical material, flawed in parts as it might have been, was sufficient to justify this type of conclusion".

Even if young people might still manage to obtain cigarettes from other sources, the Government and Parliament were entitled to the view that not all of them would, and that the ban was justified.

It was also not a disproportionate interference with the petitioners' property rights under article 1 of Protocol 1 to the Human Rights Convention.

In 2010 Lord Bracabale in the Outer House dismissed a separate challenge by Imperial Tobacco based on the argument that the legislation involved "the regulation of the sale and supply of goods and services to consumers", a reserved matter in terms of the Scotland Act 1998.

Click here to view the court's opinion.