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CJEU Advocate General confirms discrimination for niche products

By July 6, 2018No Comments

The Court of Justice of the European Union issued an opinion yesterday on a case referred by a German court regarding the EU Tobacco Products Directive of 2014. ESTA member and family-owned company Planta Tabak sells, among other products, flavoured roll-your-own tobacco. Planta took a case to dispute provisions of the German law transposing the provision from the Directive restricting the sale of tobacco products that have a ‘characterising flavour’, arguing that the Directive violates the principle of proportionality, as there was no transitional period and therefore they were left with no time to comply with the new rules for labelling and packaging.

This directive prohibits, in principle, placing on the market any cigarettes or fine-cut tobacco with a characterising flavour. However, it also states that companies whose products’ EU-wide sales volumes represent 3% or more in a particular product category may still sell these products until 20 May 2020. According to the Advocate General, that difference in treatment between types of products is justified and the extended prohibition on the sale of tobacco products with a “characterising flavour” is thus valid. By seeking to withdraw from the market first of all “niche products”, the EU only succeeds in favouring large groups to the expense of smaller companies, which are already in a more difficult position.

ESTA Secretary General Peter van der Mark said: “With this opinion, the Advocate General confirms the discrimination at work in Europe. By granting a transitional period to mainstream products and leaving no time to comply to smaller ones, EU law favours major brands and penalises niche products, mainly produced by smaller family owned businesses like Planta Tabak, as well as their consumers”.

Read more about ESTA’s positions.


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