To a HEALTHY 2022 - CJEU in Pro Reuchfrei (C-370/20) on tobacco labelling

This is another year when we are likely to wish each other staying in good health throughout year 2022. Interestingly, on December 9 CJEU issued a judgment in a Pro Reuchfrei case (C-370/20), pertaining to the labelling of cigarettes, which as we know is strictly regulated in order to protect consumer health.

Certain automatic vending machines for cigarette packets in use in German supermarkets did not clearly present these packets to consumers. This meant that whilst the buttons on the machine identified various brands, their geographical representation, etc, they did not display the health warnings which are mandated for cigarette packets themselves. As the selected by consumer cigarette packet would be directed immediately to the checkout conveyor belt, consumers may not get it in their hands until after they had paid for the product.

It is Directive 2014/40/EU that requires a clear display of health warnings on cigarette packets. Its Article 8(8) also requires that all 'images of unit packets' must display such health warnings. In this judgment the CJEU finds that following the everyday meaning of the word 'image', this requirement is not limited to the faithful depictions of unit packets of tobacco products (para 24). Also when consumers associate a design with the tobacco product, due to its proportions, colour, outline and brand logo, it would fall within the scope of this provision (para 31). It is for the referring national court though to determine, whether the images of cigarette brands displayed on the selection buttons of the automatic vending machines constituted such images. ... The discretion awarded to national courts seems illusionary, however, as it is difficult to see how this could not be the case.

Even if the consumer had a chance to see the health warnings on the packet of cigarettes before purchasing it, e.g. if the packet was handed out to consumers prior to the purchase being made, this would not make the display of an 'image of unit packets' without health warnings compliant with the Directive (para 36).

This is an interesting case on labelling requirements and the feasibility to broadly interpret a notion of an 'image', which may come in handy in other case law on the transparency of visual information notices.