Imperial Tobacco loses court bid to stop display ban

The full judgement is here. It's too complex to digest quickly, but the judge Lord Bracadale did not agree with the petitioners' case that the provisions of the tobacco display ban crossed the line defining reserved legislation.

In the eyes of the court, the transaction between the customer and the patron remains fundamentally unaltered by the display ban. (The Scottish Government on the other hand recognised that it could not, for example, ban the sale of ten-packs, as this would materially restrict the way in which tobacco could be supplied.) Imperial also failed to establish that the measures of the Act, outlawing the display of tobacco and the banning of vending machines, concerned the regulation of the supply of tobacco for the sake of general consumer protection: the judge held that the regulation was minimal and for the specific purpose of public health promotion by way of persuading young people not to smoke, which is a devolved issue.

In his summing up the judge quoted at some length material prepared in support of the legislation, in order to show that the legislation sought to influence young people rather than dissuade adults from purchasing tobacco: i.e. to show that the legislation had a specific public health objective, rather than a consumer protection objective.

There was also discussion of whether the Tobacco and Primary Medical Services Act interfered with free trade agreements between dating back to the Union – too much to absorb in one morning!

Unfortunately, the terms of the tobacco display ban do substantially interfere with transactions between shoppers and suppliers as indeed they are meant to, by forcing both parties into whispers that might have accompanied the sale of 'two packs of three' forty years ago. If the judge is correct in his conclusion, there remains the fact that the customer is confronted at best with a list of products in order to make his choice instead of being able to see what is in stock. If not meant to inconvenience or even stigmatise, the whole procedure is designed to convey the idea that cigarette smoking is discouraged. Even if this doesn't alter the character of the transaction in a way that defines it as reserved legislative territory, it certainly merits challenges from all quarters. Perhaps counsel for the tobacco companies, brighter than I am in such matters, will find grounds for appeal.

As people of all ages regularly access illegal substances, it is not guaranteed that subversive sales are likely to dampen the popularity of smoking. Indeed the lack of available evidence that the legislation will have the effect of stopping young people from smoking is well known: during passage of the Bill, Richard Simpson MSP said: 'The fact that we do not have all the evidence is not a reason not to have the ban.' U-huh. (Comment, with language alert.)  Problems with implementation and enforcement have also been expressed in an article published in The Grocer, which calls for the legislation to be scrapped. Imperial Tobacco is not the only body working for such an outcome.