HTPs: EU Rulemaking Challenged in Court

The European Commission will face a legal challenge over its attempt to restrict the sale of heated tobacco products (HTPs).

On Nov. 3, 2022, the European Union published a directive banning flavored HTPs throughout the union. The ban, which covers all flavors except tobacco, officially took effect Nov. 23, 2022. EU member states were given until July 23, 2023, to transpose the rule into national legislation.

When the Ireland did so, it was challenged in the Irish High Court by PJ Carroll & Co. and Nicoventures Trading. The nicotine companies argued that the European Commission had exceeded the powers delegated to it under tobacco products legislation approved by the European Council and the European Parliament. According to them, the Commission made its decision based on political grounds rather than legal grounds.

In his judgment, Irish High Court Justice Cian Ferriter noted that the Commission had effectively prohibited “a category of tobacco product which was new on the market, which had not been in existence at the time of the enactment of the Tobacco Products Directive in 2014 and which had not been the subject of separate policy and health assessments…”.

“It is at least arguable that this involved a political choice which was only open to the EU legislature and not to the Commission,” Ferriter said.

According to Eureporter, the Dublin court will now refer the case to the European Court of Justice in Luxembourg.

The nicotine companies and the Irish High Court are not the first to raise concerns about regulatory overreach. When the Commission adopted its directive in 2022, four EU member states objected that the directive involved “essential elements reserved for the European legislators.”