R (British American Tobacco UK Limited & Ors) v Secretary of State for Health [2016] EWCA Civ 1182

30 November 2016

Martin Howe QC and Jaani Riordan appeared on behalf of the Secretary of State, and Lindsay Lane appeared on behalf of Imperial Tobacco Limited, in four linked appeals from Green J’s dismissal of claims for judicial review of the Standardised Packaging of Tobacco Products Regulations 2015 (‘Regulations‘). The Regulations require the surfaces of cigarette packs to carry only health warnings and certain other specified matter, and otherwise to be a uniform prescribed colour. A brand and variant name is permitted to appear, but must be presented in a plain typeface of a prescribed size.

Imperial and five other appellants (the ‘Tobacco Appellants‘) appealed on ten separate grounds, a number of them concerning the extent to which their intellectual property rights were interfered with by the Regulations, since the effect of them was to prevent their graphic trade marks from being used on the packs at all, and to require their brand name word marks to appear only in plain type. The Tobacco Appellants challenged the proportionality of such interference, and whether the Regulations were lawfully made having regard to EU law.

The Court of Appeal upheld the Judge’s decision and dismissed the appeals. The Court found that the Regulations were not made contrary to EU law (in particular, the Community Trade Mark Regulation) and did not breach the Tobacco Appellants’ rights under the European Convention on Human Rights, the Charter of Fundamental Rights of the EU, or the common law.

The Regulations did not deprive the Tobacco Appellants of their intellectual property rights but only sought to control their use: having properly considered the evidence relating to their suitability, necessity, and whether the Regulations struck an appropriate balance between the public interest and private property rights, the Judge had been entitled to find that they were a proportionate means of protecting public health and were therefore a lawful restriction on the exercise of the Tobacco Appellants’ rights.

View judgment