Green light for "shock pictures" on cigarette packs

Federal Constitutional Court dismisses urgent application of a tobacco producer
Karlsruhe( jur).The EU tobacco directive can also enter into force punctually in Germany. On Friday, May 20, 2016, the Federal Constitutional Court in Karlsruhe dismissed the complaint lodged by a manufacturer against the Tabaker Certificate Act( Ref.: 1 BvR 895/16).Thus, the path for the "shock photos" on the boxes and restrictions on the additives is free.

The EU directive was already adopted in 2014.Germany has only implemented it on the last pusher with the Tabaker Certificate Law of 4 April 2016.The Act entered into force on 20 May 2016, the last day of the transposition period. Tobacco products still manufactured under the old regulations may be sold for another year until 20 May 2017.

Shock pictures against smoking. Image: kantver - fotolia Shock pictures against smoking. Photo: kantver - fotolia

The new regulations provide in particular for larger warnings with photos, which show the health effects caused by smoking, such as smoking or broken teeth. To ensure that cigarettes can not be offered for pocket money, a box must contain at least 20 cigarettes. Menthol and other additives are prohibited when they significantly overlap the tobacco taste and give a cigarette a "characterizing taste".In addition, the regulations for e-cigarettes are tightened.

By judgment of 4 May 2016, the European Court of Justice( ECJ) had ratified the tobacco directive in Luxembourg( ref.: C-358/14 and others, JurAgentur-Bericht vom Urteilstag).Menthol and other flavors should make smoking more comfortable and facilitate entry into the nicotine intake. This would meet the European objective of reducing tobacco consumption. Moreover, the individual EU states had been very different from this problem. Therefore, a single regulation is justified for the whole of the EU internal market.

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With his urgent application before the Federal Constitutional Court, a tobacco producer wanted to stop the implementation of the directive in Germany at least tentatively. He is particularly concerned with the "shock photos" as well as the prohibition of "characterizing" additives. This would undermine his professional and enterprise freedom, freedom of expression and other fundamental rights.

The Federal Constitutional Court rejected the urgent request. It referred to the jurisprudence of the ECJ and largely followed its reasoning. The regulations served the important aim of cutting market barriers in the EU internal market. Another aim is health protection "and thus an extremely important objective of constitutional importance".

These goals could justify the interference with the rights of manufacturers, emphasized the Karlsruher judges. The hurdles for the suspension of a law in the case of an urgent procedure are particularly high."This criterion is to be exacerbated if an interim injunction is sought to suspend the implementation of a legal standard which transposes mandatory provisions of German law into German law," says the Karlsruher decision of 18 May 2016.

The adoption of an interim injunction against the law therefore requires the applicant to be "particularly grave and irreparable harm".Such "irreparable damage" could not be demonstrated by the tobacco producer.mwo

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