The Guardian: Imperial Tobacco loses legal case on cigarette ads in Scotland

Imperial Tobacco loses legal case on cigarette ads in Scotland: Tobacco firm fails in bid to overturn Scottish government's ban on over-the-counter cigarette displays and vending machines

By Severin Carrell

Thursday, 30 September 2010

Imperial Tobacco has lost its attempt to overturn a ban on over-the-counter cigarette displays and tobacco vending machines by the Scottish government.

Lord Bracadale threw out the tobacco company's legal challenge and said Scottish ministers were within their legislative rights to restrict tobacco sales to safeguard public health, particularly among teenagers and young adults.

The ruling is a significant setback for Imperial Tobacco and other tobacco manufacturers. The company, which has a 45% share of UK cigarette sales and 58% of tobacco sales, is pursuing a similar legal action in London to overturn a ban on over-the-counter displays, which come into force in England and Wales in October 2011. It now faces the prospect that this challenge may also fail but Imperial reacted to the Scottish ruling by indicating it was likely to appeal and insisted today's judgement had no bearing on its legal action in England and Wales.

The company argues that the devolved government in Edinburgh does not have the legislative competence to introduce the main bill, the Tobacco & Primary Services Act, which has brought these controls into force because they are reserved to the UK government.

In a short statement, Imperial said its subsidiary Sinclair Collis, the UK's largest cigarette vending machine company, was still pursuing its legal challenge to the vending machine ban in Scotland. A two-week hearing is due to start in the civil court in Edinburgh, the court of session, at the end of October. Sinclair Collis is pursuing a similar case in London.

The company added that it could also still challenge the forthcoming Scottish government regulations on the precise controls banning over-the-counter displays. "Imperial will consider its position once these regulations are published," the company said.

In today's ruling, Lord Bracadale rejected Imperial's argument that the Scottish legislation involved consumer law and the control of the sale of products to consumers – areas which are reserved to Westminster.

The judge concluded that the act's purpose "was to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term". That was not a reserved matter under the Scotland Act 1998 setting up the Scottish parliament.

Bracadale also rejected suggestions the act was in conflict with freedom of trade provisions in the Act of Union that unified the Scottish and English parliaments in 1707. "Freedom of trade should be interpreted as relating to a common market," he said. "An examination of the historical context in which the Acts of Union were passed made it clear that the paramount concern on the Scottish side of entering the Union with England was gaining entrance to the common market of England and her colonies."

Sheila Duffy, the chief executive of the anti-smoking campaign group Ash Scotland, said she was delighted. The industry always sought to "dilute, derail or delay" new legislation which affected its income.

In April, Imperial reported six monthly pre-tax profits of £974m. "It is these huge profits – nearly a billion pounds being made in just six months – that are then being ploughed into challenging the aims of governments around the world to use legislation to reduce the major harm caused by smoking to their citizens' public health. In this case it is Scotland's aim to reduce the rates of children smoking," she said.

Click here to read the article in the Guardian

FAIR USE NOTICE  
This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. In accordance with Title 17 U.S.C. Section 107, the material on this site is available without profit for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.