Green light for shock photos on cigarette packs

Federal Constitutional Court rejects urgent application of a tobacco manufacturer
Karlsruhe (jur). The EU Tobacco Directive can also enter into force punctually in Germany. With a resolution published on Friday, May 20, 2016, the Federal Constitutional Court in Karlsruhe dismissed the petition of a manufacturer against the Tobacco Products Act (Ref .: 1 BvR 895/16). This clears the way for the "shock photos" on the boxes and restrictions on the additives.

The EU directive was already adopted in 2014. Germany only implemented it at the last minute with the Tobacco Products Act of 4 April 2016. The law entered into force on 20 May 2016, the last day of the transposition deadline. Tobacco products manufactured until then under the old regulations may be sold for another year until May 20, 2017.

Shock pictures against smoking. Picture: kantver - fotolia

In particular, the new regulations provide for larger warnings with photos depicting damage to health caused by smoking, such as smoking or broken teeth. To prevent cigarettes from being offered at pocket prices, a box must contain at least 20 cigarettes. Menthol and other additives are banned if they clearly overlap the taste of tobacco and give a cigarette a "characterizing taste". In addition, the regulations for e-cigarettes will be tightened.

By judgment of 4 May 2016, the European Court of Justice (ECJ) in Luxembourg had upheld the Tobacco Directive (Ref .: C-358/14 and others, JurAgentur notification from the day of the judgment). Menthol and other flavors should make smoking more enjoyable and facilitate entry into nicotine consumption. This would be contrary to the Europe-wide goal of reducing tobacco consumption. In addition, the individual EU states dealt with this problem in very different ways. Therefore, a single rule for the entire EU internal market is justified.

With his urgent petition to the Federal Constitutional Court, a tobacco manufacturer now wanted to halt the implementation of the directive in Germany, at least for the time being. He is particularly opposed to the "shock photos" and the prohibition of "characterizing" additives. This would violate his professional and corporate freedoms, his freedom of expression and other fundamental rights.

The Federal Constitutional Court rejected the urgent application. It referred to the case law of the European Court of Justice and largely followed its reasoning. The rules served the important objective of removing market barriers in the EU single market. Another objective is health protection "and thus a paramount public policy goal of constitutional status".

These goals could justify the interference in the rights of the manufacturers, emphasized the Karlsruhe judges. The hurdles for the suspension of a law in the urgent procedure are particularly high. "This standard is to be tightened even further if an interim order is sought, by which the enforcement of a legal norm is to be suspended, which implements mandatory provisions of European Union law into German law," states the Karlsruhe decision of 18 May 2016.

Therefore, the adoption of an interim measure against the law presupposes that the claimant is "threatened with particularly grave and irreparable damage". Such "irreparable and existence-threatening damage" the tobacco manufacturer could not explain. mwo