Plain Packaging – Further Developments

Authors: Mykolas Jakutis, an Assistant to Attorney-at-Law in METIDAErikas Saukalas, an Associate Partner, Head of International Relations Division in METIDA

plain Readers may recall that, on 19th of December 2012 the EU Commission published proposals for a revised Tobacco Products Directive (TPD). The main features of this proposal included a requirement for cigarette packs to bear ‘health warnings’ covering a minimum of 75% of the front and back surfaces started from the top edge. The proposed TPD allowed the possibility for Member States to opt for ‘plain packaging’ if they wished to do so.

The European Parliament opinion giving committees JURI (Legal Affairs), IMCO (Internal Market and Consumer Protection), INTA (International Trade), ITRE (Industry and Research) and AGRI (Agriculture) on June 18th-20th in Brussels voted on the tobacco product directive proposal. All five opinion giving committees have voted against complete plain packaging, against point of sales display ban and against ingredients ban. All committees except IMCO have voted for health warning labeling at 50% size placed at the bottom of the pack (IMCO voted for 70% size health warning labeling placed at the bottom). Also, all committees have voted a deletion of the slim cigarettes ban and menthol ban. Amongst the agreed elements were:

  • Mandatory combined (picture and text) health warnings covering 65% front and back of all cigarette and roll-your-own tobacco packs;
  • Minimum packet dimensions and ban of ‘lipstick’ style packs (slim cigarettes themselves not banned);
  • Ban on tobacco products with ‘characterising flavour’ other than tobacco, like fruit or menthol;
  • Ban of any misleading labelling (such as ‘natural’ or ‘organic’);
  • Member States may introduce more stringent rules on additives or on packaging of tobacco products (such as plain-packaging), subject to certain conditions (such as notification to the Commission).

Following the adoption of a General Approach by the Council on June 21st and the final reports of the five European Parliament Opinion Giving Committees JURI, IMCO, INTA, ITRE and AGRI, the ENVI (Environment, Public Health and Food Safety) Committee on July 10th voted on amendments to the Tobacco Product Directive proposal and a final report was adopted, but it has not been published yet. On the key issues, the ENVI Committee did not follow the recommendations of the five Opinion Giving Committees.

The ENVI Committee represents less than 10% of all the members of the European Parliament. The five Opinion Giving committees in the Parliament, representing over 50% of all Members of the European Parliament, voted against many of the extreme provisions of the revised TPD. As mentioned in the joint statement of the Sister Associations on July 3rd, ECTA fully supports the JURI Committee and the other Opinion Giving Committees which all voted against the amendments introducing plain packaging, excessively large health warning labels and arbitrary prohibition of trade marks and brands.

The ENVI Committee’s report on the proposed revisions of the Tobacco Products Directive will be presented to European Parliament for a vote in Plenary session in September 2013. Political groups and groups of at least 40 Members of the European Parliament will be able to table amendments to the final report of the ENVI Committee (amendments, such as reducing the size and position of health warning labels on the packs) until 4th of September, prior to noon.

It appears that the road ahead for use of trademarks on tobacco packaging in the EU still remains long and uncertain.

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