Following the example of Australia, the UK, Norway and France, Belgium has introduced plain packaging for tobacco products. The adopted measure is part of the Belgian Ministry of Health’s anti-tobacco plan and goes beyond the minimum packaging requirements of the EU Tobacco Directive.
Strict standardised packaging
Tobacco products are regulated at EU level by Directive 2014/40 (the “EU Tobacco Directive”), which introduced some minimum requirements across the EU regarding the labelling and packaging of tobacco products, including mandatory health warnings which have to cover 65% of both the external front and back surface of the unit packet and any outside packaging.
Although the EU Tobacco Directive does not impose plain packaging, it does give the right to Member States to introduce stricter requirements. Consequently, Belgium has adopted the Royal Decree of 13 April 2019 which standardises the presentation of the packaging of cigarettes, rolling tobacco and water pipe tobacco, and introduces plain packaging. The Royal Decree requires the packaging to have a standard colour and a trade name which may appear only once on the packaging. The specific modalities for the packaging and labelling will be further determined by the Minister of Health.
Any violation of the new rules will be prosecuted and punished according to the Belgian Act of 24 January 1977 regarding the protection of consumers’ health with regard to foodstuffs and other products.
Public health beyond economic interests
The tobacco industry has made several attempts to challenge the provisions of the EU Tobacco Directive and national implementing measures claiming that they violate the fundamental right to property and trade mark law, and are disproportionate when it comes to mandatory plain packaging (cases C-477/14 and C-547/14).
Although the EU Court of Justice has confirmed that also intellectual property is covered by the fundamental right to property (Article 17 of the Charter of Fundamental Rights of the EU), it has considered that this is not an absolute right. Consequently, public authorities may take proportionate measures to restrict the exercise of economic activity in the public interest and to achieve the legitimate objective pursued by the EU Tobacco Directive, namely the protection public health. In the opinion of the CJEU, the public health interest in this context prevails over any social or economic interest.
Transition period and entry into force
By 1 January 2020, any non-compliant packaging must be removed from the market unless stocked by retailers, who may continue to sell the products until 31 December 2020.
Auteurs: Stéphanie De Smedt, Aleksandra Sanak en Wannes Buelens
