Pulmonologists vs. tobacco industry in final appeal around rigged cigarette

Court session on June 8 from 10 a.m. available through live stream

1 June 2023

On Thursday June 8, the Dutch Trade and Industry Appeals Tribunal (CBb) will hear the appeal in the case in which Youth Smoking Prevention demands that the government take steps against the rigged cigarette and manipulation of cigarette emissions measurements. The session starts at 10 a.m., lasts until 5 p.m. and can be followed via a live stream. 

In the appeal case, Youth Smoking Prevention, founded by pulmonologists Wanda de Kanter and Pauline Dekker, faces six parties: The Ministry of Health, Welfare and Sport (VWS) and the Dutch Food and Consumer Product Safety Authority (NVWA) as well as four international tobacco manufacturers plus their trade association. The CBb ultimately renders a final judgment in this case.

In this case Youth Smoking Prevention demands that the Dutch Food and Consumer Product Safety Authority acts against cigarettes that cause the smoker to inhale more poison than is legally allowed. After all, by making tiny holes in the filters of cigarettes, known as filter ventilation, tobacco manufacturers know how to keep the measurements of tar, nicotine and carbon monoxide (TNCO) in the smoke with the legally prescribed ISO measurement method within the standards of 10, 1 and 10 mg respectively. Smokers, however, close those holes (partly) with their fingers and mouth when smoking and therefore ingest much more of these harmful substances. In measurements with taped holes, the exceedances are 2 to 3 times higher than what is legally permitted, as research by the National Institute for Public Health and the Environment (RIVM) in 2018 already showed. These results have recently been reconfirmed by RIVM in the context of this procedure.

EU Court of Justice emphasizes health protection

However, the NVWA stated that it could not measure with any other than the legal ISO method, after which Youth Smoking Prevention took them to court in 2019. The District Court of Rotterdam asked the Court of Justice of the European Union in Luxembourg for an explanation of a number of legal questions raised by Youth Smoking Prevention about the rigged cigarette. This procedure at the EU Court lasted almost a year and a half and led to a ruling in which the Court emphasized that measurements of TNCO emissions not only serve a harmonization goal within the EU, but are also intended to protect public health.

According to the Court, a measuring method must be used for these measurements, the content of which everyone can know and which measures the “levels of emissions released when a cigarette is consumed as intended”. On November 4, 2022, the District Court of Rotterdam ruled on the basis of the judgment of the Court that the ISO method now prescribed by law does not comply on both points. The court therefore ruled that the NVWA must act against the rigged cigarette using a different, proper measuring method.

Appeal

In a letter to the House of Representatives, State Secretary Van Ooijen (VWS) announced on 6 December 2022 that the Ministry and the NVWA had lodged an appeal with the CBb in The Hague in this case. Not so much to contest the ruling of the Rotterdam District Court, but to obtain definitive confirmation from the highest court in this process and thus lay a solid foundation for enforcement with a measuring method that better approximates the smoking behaviour of the smoker (in practice, the WHO Intense method). At the very last minute, the four major tobacco companies Philip Morris International, British American Tobacco, Japan Tobacco International and Imperial Tobacco also decided to also get involved in this case and to file an appeal together with their trade association VSK. The tobacco companies are each represented by their own law firm from the highest echelon, as a result of which the case has become much bigger than it was and the Trade and Industry Appeals Tribunal has set aside an entire day for the hearing.

The hearing will take place on Thursday June 8 at the Palace of Justice in The Hague from 10 a.m. The hearing can also be followed via a live stream, for which a link is available at Rechtspraak.nl. The hearing will be in Dutch.

More details about this case as well as court documents and judgments can be found here.

The case is also explained in a Q&A-format.

Intense-method | ISO-method | tobacco industry | lawsuit | rigged cigarette | WHO | TNCO