Legal challenge to EU’s tobacco traceability fails on appeal

The EU Court of Justice has thrown at a lawsuit challenging the traceability provisions of the Tobacco Products Directive (TPD), saying it was “inadmissible.”

The International Tax Stamp Association (ITSA) has long argued that the TPD’s traceability legislation is at odds with Article 8 the World Health Organization’s Framework Convention on Tobacco Control (FCTC) Protocol to eliminate illicit trade in tobacco products, because it says track-and-trace should not be performed by or delegated to the tobacco industry.

In 2018, it launched a legal challenge to the TPD on the grounds that in implementing it the European Commission had effectively allowed tobacco manufacturers to contract suppliers with a long history of collaboration with the industry and that co-developed a system originally devised by tobacco giant Philip Morris International (PMI).

The challenge was rejected by the ECJ last May on the grounds that ITSA could not challenge the EU track and trace system because it did not have a ‘direct interest’ in the TPD implementing regulation.

An appeal was launched shortly afterwards, but that has been rejected “without any consideration of the merits of the claim,” says the trade body, describing the decision as “disappointing and curious.”

“The EUCJ determined that ITSA has no material interest in the directive’s derived regulation and the association’s claim was therefore not admissible,” explained Juan Carlos Yañez, ITSA chairman.

“ITSA members are independent of the tobacco industry and provide traceability systems as part of effective anti-illicit trade programmes, so how is it possible that ITSA and its members do not have a material interest in the regulations?,” he asked.

The trade body isn’t alone in criticising the TPD regulation. The WHO has also expressed concerns about the tobacco industry’s involvement in traceability systems, including the scheme adopted in the EU.

Meanwhile, an investigation by the Organized Crime and Corruption Reporting Project (OCCRP) claims that big tobacco companies spent years lobbying to control the design of the traceability system, and that has resulted in a scheme that is riddled with weaknesses.

“The decision on non-admissibility is nonsensical and frustrating since it prevents substantial debate regarding the EU regulation compliance to WHO international law,” continued Yañez.

“The decision also calls into question the democratic rights of private parties to challenge EU regulation.”

Other non-governmental organisations including the Framework Convention Alliance, the Smoke Free Partnership, the Association of European Cancer Leagues and the European Network for Smoking Prevention have also raised questions about Articles 15 and 16 of the TPD, which provide for the tracking and tracing and security features of tobacco products, according to the ITSA.

The Commission is due to review the TPD next year, so there should be another opportunity for the tobacco traceability provisions to be placed under scrutiny outside legal channels.

Last month, the ITSA published a tobacco track-and-trace blueprint that it says covers weaknesses in the system implemented in the EU.

The WHO meanwhile is working on detailed requirements for the track-and-trace provisions of the FCTC Protocol, which are due to be implemented by 2023. The are due to be discussed at a meeting of the parties to the Protocol later this year.