Dossier: European case on the ‘rigged’ cigarette and unlawful measurements

The so-called ‘rigged cigarette’ is far more harmful and addictive than legally allowed and should therefore be removed from stores. After all, public health must be the legislator's primary concern in this context.

Cigarettes are more harmful and addictive than the tobacco industry suggests, as smokers ingest much more poison and nicotine than official measurements indicate. Cigarette filters have tiny holes through which air is drawn in during official measurements, which dilutes the toxins. However, smokers cover those holes with their mouth and fingers, so that the dilution is not necessary in practice.

In the investigation preceding the complaint in 2016 against the tobacco industry, the Youth Smoking Prevention Foundation (SRPJ) discovered that the tobacco industry had not only invented the holes in the filters (the ‘rigged cigarette’) to influence the measurement of the toxic emissions of cigarettes. The legally prescribed measuring method also appears to come from the sleeve of the tobacco industry itself.

SRPJ argues that under national and European law the cigarettes currently on the market are contrary to government obligations to protect public health. The foundation therefore took legal action in 2019 together with the municipality of Amsterdam and a number of health organizations. The plaintiffs are seeking a ban on the sale of ‘rigged’ cigarettes.

Ruling by Administrative Court

The Administrative Court in Rotterdam on 7 February 2020 reached a verdict on the question of ‘rigged’ cigarettes. The court expressed serious doubts about whether the current legal method for measuring cigarette emissions (the so-called ISO method), leads to results that are in accordance with other legal regulations.

At issue here are the maximum levels of poisonous substances that smokers may inhale and the European Convention on Human Rights. The court has ruled that the obligation of the EU and the Dutch state to protect public health has been seriously undermined. Consequently, the court has requested a ruling from the European Court of Justice.

‘Rigged’ cigarettes

European tobacco legislation has determined that a cigarette may emit a maximum of 10 milligrams of tar, 1 milligram of nicotine and 10 milligrams of carbon monoxide. The legislation also specifies that cigarette emissions must be measured using the ISO method. Both the SRPJ and the government agency charged with measuring cigarette emissions are highly critical of the method. This is because clean air is drawn in through small holes specifically made in cigarette filters for that purpose by the tobacco industry. According to the Netherlands National Institute for Public Health (RIVM), smokers actually inhale two to three times as much tar, nicotine and carbon monoxide as legally allowed. That is because smokers block these holes with their lips and fingers while smoking.

There is another measurement method that imitates smoking behaviour much more accurately. Called the ‘Canadian Intense’ (CI) method, much like the later developed WHO TobLabNet SOP 01 method, it involves blocking the holes, thereby creating similar conditions as during ‘normal’ smoking. The CI method also simulates a more realistic ‘smoke behaviour’ (such as frequency of inhaling). The RIVM takes the view that the CI and WHO measurement methods approximate the reality of smoking much more closely than the ISO method does, even though the latter is prescribed by law and propagated by the tobacco industry.

Background to the legal challenge

SRPJ called on the Netherlands Food and Consumer Product Safety Authority (NVWA) to enforce the legal maxima by employing the more accurate Canadian Intense method. The NVWA dismissed that request “because the law simply prescribes the ISO method”.

On appeal, the Administrative Court in Rotterdam has sided with SJPR and the other plaintiffs, who argue that the legal measurement method conflicts with the government’s obligation to protect the health of citizens, especially children, and that the Canadian Intense method should be used.

European law

Because a Dutch court cannot change European law on its own, the court in Rotterdam has agreed with SRPJ’s request to seek a ruling from the highest court in the European Union, the Court of Justice in Luxembourg. This court does have the power to overturn European legislation and can also instruct the European Commission to solve the problem through legislation. The Dutch Administrative Court has also asked the Court of Justice whether the Netherlands can decide to replace the measurement method with a better one unilaterally, until the issue has been settled at EU level. If the Court of Justice in Luxembourg agrees, this ruling could even mean that the NVWA can impose an immediate ban on the sale of filter cigarettes currently on the market.

The European Court of Justice has asked all parties involved (apart from SRPJ and the tobacco industry, all Member-states, the European Commission and the European Parliament) to give their opinions. Considering all arguments put forward, the Court will give its verdict.

On February 22, 2022, the Court of Justice of the EU issued its ruling, concluding that the Rotterdam District Court can decide for itself whether the measurement method used so far has been all right or whether a method should be used that better approaches the actual smoking behavior of the smoker. The case has since been returned to the administrative court in Rotterdam.

Following the EU Court judgement, the Court in Rotterdam on 4 November 2022 issued its final ruling (see full translation below). The Court decided that, given the fact that the filter cigarettes currently available in the shops do not comply to the maximum emission requirements, the Netherlands Food and Consumer Product Safety Authority (NVWA) has to take action against these filter cigarettes. The Court agrees completely with SRPJ that filter cigarettes in their current form are illegal.

Appeal

On 6 December 2022 the Dutch State Secretary for Health announced that the Ministry and the NVWA are appealing the ruling of the Rotterdam court, actually not to fight it, but to get a better legal foundation for upholding with the use of the WHO Intense method. Dutch government wants to replace the ISO-method by the WHO Intense method, but it wants to be protected against claims by the tobacco industry by a final verdict by The Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb). Just before the final deadline the four major tobacco companies (Philip Morris Internationa, British American Tobacco, Japan Tobacco International and Imperial Tobacco) as well as manufacturers' branche association VSK appealed. The appeal was heard on June 8, 2023.

While a final verict was expected on November 7, 2023, the Trade and Industry Appeals Tribunal on November 2nd made public its decision to redirect this case once more to the Court of Justice of the European Union. More details on this to be found in the news section.