It is clear that the EU directive banning the sale of snus is invalid, since the ban lacks any motivation. Nevertheless, it should remain in force until the European Parliament can adopt a new, correctly motivated directive. This is the view expressed by the advocate general of the European Court of Justice in his opinion as to how the Court should rule on the matter.
"Unfortunately, the advocate general has not seen fi t to give us a legal examination. Instead, it seems likely that he had made up his mind from the start based on anything but legal grounds and then tried to couch the decision in legalistic terms. This is a political position, not a legal one," comments Bo Aulin, Swedish Matchs Chief Legal Counsel.
SWEDISH MATCH HAS ALWAYS maintained that the sales ban is in breach of the fundamental principles underlying European Community law, particularly the principles that it should be non-discriminatory and proportional. The ban contained in the directive discriminates against snus in relation to other, similar tobacco products, and neither is there any proportionality in permitting sales of cigarettes and every other type of tobacco product, yet prohibiting snus.
"But the advocate general has chosen the political line. It is diffi cult otherwise to understand how he can reason as he does in regard to proportionality and discrimination," says Bo Aulin. "What is the logic behind permitting the use of oral tobacco that is chewed, but not snus. Nasal snuff is also permitted, and the main difference between it and our products is that it is drier. So are we supposed to believe it is the amount of water in a product that makes it more dangerous?"
At the same time, notes Bo Aulin, the advocate generals opinion lacks any legal force. So the last word has not yet been said on the subject. It is the Court that makes the fi nal decision, and there is no need whatsoever for it to follow the line taken by the advocate general. For this reason, it is also pointless to speculate about the eventual outcome, he says. But Swedish Match has always cautioned that a judgment would probably be characterized by political considerations rather than legal and factbased arguments.
"OUR VIEW IS THAT THE BAN is doomed in the long term, since it is ridiculous and is actually counter to the publichealth interests that it purports to serve. Consumers will seek new alternatives to smoking. Not necessarily snus - it could be other smokeless products also. But this will fuel a demand pressure that will force politicians to act instead of clinging to the totally unrealistic zero vision for tobacco use. The focus should be on reducing the health risks," says Bo Aulin.
He also wonders how it will be possible to motivate the ban and present a tenable decision-making basis in a revised directive. The reason why such a basis is absent from the present directive is that there are no factual reasons for the ban, he maintains.
"But the real impact on public health cannot be concealed indefi nitely," continues Bo Aulin. "Of course, it is human nature to fi nd it diffi cult to back down after deciding on a certain position. But what right does anyone have to deny Europes millions of smokers a valid alternative? Those who espouse the prohibition policy are assuming a huge responsibility."
HE IS AT PAINS TO POINT OUT, however, that a negative ruling from the Court would now no longer be a serious setback for Swedish Match.
"We will not stand or fall depending on the Courts decision and have in any case never anticipated a rapid or large-scale European launch. Tobacco consumers are slow to change their consumption habits - besides which, entry into new markets would primarily generate costs in the short term. But we think long-term, and we naturally foresee favorable growth potential in fi ve to ten years time. This is because we have a fantastic story to tell and a strong message about harm reduction to promote. It is not we who have credibility problems as far as this issue is concerned."
The European Court of Justice is expected to reach a judgment on the issue later this year or early in 2005.