A generational tobacco sales ban aimed at keeping future generations smoke-free does not necessarily conflict with European law. New research by scholars from several European universities, including Leiden University, shows that EU internal market law may offer more scope for ambitious tobacco control than often assumed.
According to the legal analysis, which was co-authored by Vincent Delhomme, Assistant Professor of European Law at Leiden University, EU law does not necessarily prevent far-reaching tobacco control measures. The new study shows that EU law has evolved over the past decades in such a way that public health protection is firmly embedded in EU law, including within internal market law. The analysis was recently published in Health Economics, Policy and Law.
Generational sales ban
A generational ban is a ban that applies only to people born after a specified date. This means that new generations are subject to the ban, while older generations are not. In the case of tobacco, for example, people born after a certain date would never be legally allowed to purchase tobacco, even after reaching adulthood. The aim of such a measure is to phase out legal tobacco sales to new generations.
'This new legislation really gives hope: it can protect public health and bring a tobacco-free generation closer.'
The UK smoke-free generation as a test case
The researchers examined UK legislation aimed at creating a smoke-free generation as a case study. According to the authors, such a measure could be compatible with the European legal framework provided it is proportionate and supported by sufficient scientific evidence.
Although the United Kingdom is no longer an EU Member State, certain EU rules on trade in goods continue to apply in Northern Ireland under the Windsor Framework. This makes the UK tobacco legislation an interesting legal test case. Several EU Member States have raised concerns through the European notification procedure TRIS about the compatibility of the legislation with the free movement of goods. According to the researchers, the legal assessment of the UK measure could therefore also have implications for other countries considering similar policies.
'I find interdisciplinary research fantastic, especially when it can genuinely have a positive impact on society.'
More scope for national tobacco control measures
constraint. National measures must be legally justifiable and meet requirements including suitability and proportionality. However, the fact that a measure affects trade in tobacco products does not automatically mean that it is incompatible with EU law.
The analysis is therefore also relevant to EU countries seeking to go beyond traditional measures such as excise duties, advertising bans and smoke-free policies. Measures such as restricting the number of retail outlets or making tobacco and nicotine products available exclusively through healthcare channels also fits within the broader debate surrounding the so-called tobacco endgame.
Revision of EU directive offers opportunities
According to the researchers, greater clarity on the legal scope for such policies is desirable. The revision of the European Tobacco Products Directive could provide an opportunity to do so. It could clarify the extent to which EU countries can further restrict the use and availability of tobacco and nicotine products.
