Poland Challenges EU Menthol Cigarette Ban

Poland will challenge a European Union ban on flavoured cigarettes in the European Court of Justice, saying it will be unfairly affected as one of the EU’s biggest consumers and producers of menthol cigarettes.

The ban is part of the revised Tobacco Products Directive, which regulates how tobacco products are manufactured, packaged and marketed in the EU and which the European Commission claims needs to be updated because of “new scientific evidence” including “on tobacco flavourings.”

The revised directive will ban menthol and other flavourings by May 2020, but according to Reuters

Polish Deputy Prime Minister and Minister of the Economy Janusz Piechocinski has said that menthol-flavoured cigarettes should be considered a traditional product – not unlike the Swedish “snus,” powdered tobacco placed under the lip – and therefore exempt from the directive.

Oral tobacco, such as snus, has been banned in the EU since 1992. However, Sweden has an exemption negotiated under its Accession Treaty of 1994, provided it ensures that the product is not sold outside Sweden.

Poland will feel a ban on flavoured tobacco more acutely than other EU member countries. Nearly one in every five cigarettes sold in Poland is menthol-flavoured, compared to one in ten in Sweden and below one in a hundred in Spain, Austria or Slovakia.

As Reuters points out, “the country is also the second-largest producer of tobacco in the EU, with Polish tobacco farms employing over 60,000 people. It is also the seventh-largest manufacturer of cigarettes in the world, with five processing sites and six factories employing further thousands.”

The menthol ban endangers more than just customers’ preference. Forty per cent of Poland’s tobacco production is the Burley variety, grown for its ability to absorb flavours such as menthol. Lech Ostrowski, head of the National Union of Tobacco Farmers, representing 7,000 producers, said: “We can’t all switch to growing Virginia, because the market will simply not accommodate it and prices will fall.”

However, what Poland may find when it goes to the EU’s court in Luxembourg to challenge the revised directive is that the decision on menthol did not originate in the EU, and that therefore the European Court of Justice cannot overrule it.

Although Brussels pretends to control tobacco regulation, in fact, regulation on tobacco – and much else – now originates in the United Nations World Health Organisation (WHO). The European Commission merely “retails” the regulations.

The EU and all member states are parties to the legally binding WHO Framework Convention on Tobacco Control (FCTC), which entered into force in February 2005.

Buried in the revised EU directive is the admission that it is being brought into EU law “to meet the obligations of the Union under the WHO Framework Convention for Tobacco Control (‘FCTC’).”

And the WHO convention states in Article 7 that countries shall introduce “non-price measures to reduce the demand for tobacco” – ie, take steps to make it less appealing — while Article 9 says they shall regulate the “contents of tobacco products.”

The EU revised directive interprets its obligations in such a way that “Flavourings in cigarettes… must not be used in quantities that give the product a distinguishable (‘characterising’) flavour other than tobacco…Menthol is considered a characterising flavour and will be banned.”

Or as European Commissioner Tonio Borg put it when the European Parliament voted through the revised directive in February: “By ensuring that tobacco products look and taste like tobacco products, the new rules will help to reduce the number of people who start smoking in the EU.”