Green light for "shock photos" on cigarette boxes

Green light for

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Federal Constitutional Court rejects urgent application by a tobacco manufacturer
Karlsruhe (jur). With a decision published on Friday, May 20, 2016, the Federal Constitutional Court in Karlsruhe rejected a manufacturer's urgent application against the Tobacco Products Act (file number: 1 BvR 895/16). This clears the way for the “shock photos” on the boxes and restrictions on the additives.

The EU directive was adopted in 2014. Germany only implemented them at the last minute with the Tobacco Products Act of April 4, 2016. The law entered into force on May 20, 2016, the last day of the implementation period. Until then, tobacco products manufactured according to the old regulations may be sold for another year until May 20, 2017.

The new regulations in particular provide for larger warning notices with photos that show health damage caused by smoking, such as smoking lungs or broken teeth. So that cigarettes cannot be offered at pocket money prices, a box must contain at least 20 cigarettes. Menthol and other additives are banned if they clearly overlay the tobacco taste and thus give a cigarette a "characteristic taste". The regulations for e-cigarettes are also being tightened.

With a judgment of May 4, 2016, the European Court of Justice (ECJ) in Luxembourg confirmed the tobacco directive (file number: C-358/14 and others; JurAgentur report from the day of the judgment). Menthol and other flavors should make smoking more pleasant and make it easier to start nicotine consumption. This runs counter to the Europe-wide goal of reducing tobacco consumption. In addition, the individual EU countries dealt with this problem in very different ways. Therefore, a uniform regulation for the entire EU internal market is justified.

With his urgent application to the Federal Constitutional Court, a tobacco manufacturer now wanted to at least temporarily stop the implementation of the directive in Germany. He particularly opposes the "shock photos" and the ban on "characterizing" additives. This would violate his professional and business freedom, his freedom of expression and other fundamental rights.

The Federal Constitutional Court rejected the urgent request. It referred to the case law of the CJEU and largely followed the reasoning. The regulations served the important goal of reducing market barriers in the EU internal market. Another goal is health protection "and thus an outstandingly important public interest goal of constitutional rank".

These goals could justify the interference with the rights of the manufacturers, emphasized the Karlsruhe judges. The hurdles for suspending a law in urgent proceedings are particularly high. "This standard is to be tightened if a temporary injunction is sought, which is intended to suspend the implementation of a legal norm that converts the mandatory provisions of European Union law into German law," says the Karlsruhe decision of May 18, 2016.

An interim injunction against the law therefore presupposes that the applicant "is at risk of particularly serious and irreparable damage". The tobacco manufacturer was unable to demonstrate such "irreparable and existential damage". mwo

Author and source information

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