European Court of Justice opens way to end ‘rigged’ cigarette

23 February 2022

The Court of Justice of the European Union in Luxembourg enables the Dutch administrative court to put an end to the ‘rigged’ cigarette. That is in essence the ruling that the Court made on Tuesday 22 February 2022 in a case that Youth Smoking Prevention, the Municipality of Amsterdam and 15 healthcare organizations have brought against the government.

In this case, the Netherlands Food and Consumer Product Safety Authority (NVWA) is requested to act against the sale of cigarettes that exceed the legal standard for the emissions of tar, nicotine and carbon monoxide (TNCO). The plaintiffs, assisted by Mr. Phon van den Biesen, argue that this applies to all filter cigarettes available on the market. After all, these are all provided with tiny holes in the filters, so that clean air is drawn in during measurements, which mixes with the tobacco smoke. The smoke machines therefore measure lower values than the smoker actually receives, because smokers close the holes in the filters with their fingers and lips. In 2018, the National Institute for Public Health and the Environment (RIVM) established that in actual use the TNCO emissions are 2 to 26 times higher than the legally permitted standard of 10 mg tar, 1 mg nicotine and 10 mg carbon monoxide.

ISO method not applicable

In this case, the Court of Rotterdam referred several preliminary questions to the European Court, because the legal provisions in this case stem from the EU Tobacco Products Directive (TPD, 2014/40).

In its judgment, the European Court now states that the ISO measurement method prescribed in the TPD and Dutch law as the method to be used to measure cigarette emissions is not in itself illegal. But because this method is not publicly published and therefore cannot be viewed and assessed by the public, according to the Court, this ISO method cannot be binding on individuals when they request enforcement of the legal emission standards for cigarettes. In other words: the NVWA cannot invoke the fact that the ISO method is laid down in law in its enforcement obligation.

The Court literally says that when private persons request enforcement of the emission standards, the method used for this purpose may not be the ISO method and must be “appropriate, in the light of scientific and technical developments or internationally agreed standards, for measuring the levels of emissions released when a cigarette is consumed as intended, and must take as a base a high level of protection of human health, especially for young people.”

It’s up to the Dutch court again 

A spokesman for the European Court commented in the Dutch newspaper AD: “In fact, the District Court of Rotterdam is now being instructed to investigate whether the measurement method was all right when considering public health or whether another measurement method was not better after all. The District Court of Rotterdam has all the information and the European Court now says that the administrative court in the Netherlands can easily assess for itself what the best measurement method is. So, it can still go either way.”

‘Breakthrough in discussion about cheating cigarette’ 

In response, lawyer Van den Biesen says: “The European Court says in so many words that the ISO method can be thrown in the trash bin and that the Dutch administrative court must base its assessment of our enforcement request on a measurement method that comes closest to the actual poison intake of smokers. The message is: Down with the ISO method, citizens are entitled to the protection described in the law. We are not there yet, but this judgment is definitely a breakthrough in the discussion about the cheating cigarette.” 

‘End of cheating cigarette in sight’

Pulmonologist Wanda de Kanter, chair of Youth Smoking Prevention, adds: “This ruling opens the way to the end of the rigged cigarette. That is very good news, in addition to the news that the European Parliament adopted a resolution on the fight against cancer last week, which also calls for a review of the measurement method. The tobacco industry has fraudulently been able to make and keep people extra addicted for years, but this ruling makes it clear that this practice cannot last.”

EU | European Court | lawsuit | rigged cigarette | measurement method | TNCO | ISO-methode