Thursday, 13 June 2013

Will Sweden Withstand the Planned EU Tobacco Directive Rules on Cigarette Packet Warning Labels?

News just broke that the current Swedish government is planning to try to resist the planned implementation of a new EU tobacco directive application according to which cigarette packets must have warning labels covering 75% of the packet's surface space. Why on earth would the government of one of the world's top non- and anti-smoking and pro public health countries in this way want to do the tobacco industry's dirty business for them, one might ask. But according to the government, this matter is nothing of the sort. The reason given for why the government plans to resist the proposal is that it allegedly in conflict with the Swedish constitution, more specifically The Freedom of the Press Act (FoP, the original Swedish version of the act, Tryckfrihetsförordningen, or TF, can be read here).

I suppose that what the government think is problematic with regard to the EU tobacco directive proposal in relation to this, is the very strong ban on censorship in the FoP and a very tightly regulated possibility to prosecute for misuse, expressed in the first four articles of the 1st chapter of FoP. However, I very much doubt that any of these generous liberties can be convinsingly argued to apply to cigarette packets. First, altready in article 5, the scope of the act is defined to apply...

...provided:
1.    a valid certificate of no legal impediment to publication exists in respect of the written matter; or
2.    the written matter is supplied with a note indicating that it has been duplicated and, in association therewith, clear information concerning the identity of the person who duplicated it and the year and place of duplication.
Most cigarette packets will be excluded already st this stage. However, tobacco companies may of course come to have the packets designed so that this condition is met. This will not help the argument of the government much, however, for in article 6 the scope of the act is further limited with regard to what written or printed matter it regulates:

Printed matter shall not be deemed to be such unless it is published. Printed matter is deemed to have been published when it has been delivered for sale or dissemination by other means within the Realm. This does not however apply to printed documents of a public authority to which there is no public access.
Are cigarette packets published?, one may ask. Well they are produced through printing and then publicly offered, aren't they? Well, incidentally they are, but they are surely not sold or otherwise disseminated in the sense intended in the law. First, what is sold are the cigarettes, the packet is a container that is not for sale, albeit accompanying the sold product. We could, of course, imagine tobacco companies try to claim that it is the packet that is the product, and that the cigarettes are just an incidental appendice. However, I hardly think that such a move would exempt them from paying tax on tobacco sales. Therefore, the packet is not what is sold. Neither is it disseminated, since that would imply, e.g., that the address label attached to or any sort of scribbling on a packet of newspapers, books et cetera would be protected by the FoP. Surely they are not.

However, I need not rest my case on that argument alone, for if we continue reading, we come to the crucial article 9, wehre it is said that....
The provisions of this Act notwithstanding, rules laid down in law shall govern:
1. bans on commercial advertising insofar as the advertisement is employed in the marketing of alcoholic beverages or tobacco products; /.../

3. bans on commercial advertising introduced for the protection of health or the environment in accordance with obligations pursuant to accession to the European Communities;
What this implies is that as long as the cigarette packets qualify as either "marketting of .... tobacco products" or "commercial advertisement", FoP readily allow either any sort of censoring ban to be applied, or allow such a ban "for the protection of health or the environment in accordance with obligations pursuant to accession to the European Communities". What was this all about again, please? The European Union tobacco directive?? Uh Oh!

Now, I may have gotten all of this terribly wrong and perhaps there is a nice government memo somewhere describing a superb argument for why the EU tobacco directive regulation regarding warning text on cigarette packets is unconstitutional in Sweden. More likely, however, is that if such a memo ever existed it is fundamentally flawed and very possibly a product of sloppy analysis, and will soon find itself crumbling in the waste paper basket of the responsible minister's office. My own proposal is that said minister should inquire his/her legal advisors closely of however they could come up with such folly, and maybe take the opportunity to ask a question or two about their links to the tobacco industry as well.

So, what was the other hypothesis? That the Swedish government is doing the dirty business of tobacco companies for them? It can't be can it?! Especially not since the second argument of the government is that these companies will only have 25% left of the surface space of packets to expose their brand markings. Truly, truly poor them little innocent ones being so unjustly attacked by the vile European Commission!! So it is definitely not a question about that at least - phew!










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