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.

Musings on effectiveness of warning labels

How effective do you think warning labels on products are? The discussion about the purpose of placing such warning labels on consumer products has been going on for some time now. Sociologists mention e.g. that we might become desensitized to warning labels, if we find them on most products we buy. Still, politicians often argue that more laws should be introduced that would force businesses to place such warning labels on many more consumer products than the ones that already have such labels.

E.g. in Denmark there have been voices raised recently about a necessity for warning labels on soft drinks (Health minister calls for warning labels on soft drinks). What's the danger that these labels should warn consumers about? High sugar content. Of course, there are already laws in place that force producers of soft drinks to publish specific content of their drinks, including revealing information on how much sugar they contain (read e.g. earlier post on new Regulation on Food Information). It is believed, however, that most consumers either ignore the list of ingredients on consumer products or will not realize how high the content of sugar in these drinks is (not to mention that some people are actually attracted by warnings, read e.g. earlier post on Morbid warnings on cigarette packs). Therefore, the Danish health minister calls for specific warning labels on soft drinks that could contribute to scaring consumers off purchasing such drinks and to fighting the modern plague of obesity. So far he calls for business to introduce such warning labels voluntarily, but it can be expected that a legislation initiative would follow. 

Do you think it could work? Personally, I doubt it, since if higher prices cannot discourage consumers from buying certain products (a tax for soft drinks was raised in the past few years in Denmark), a warning label on a bottle seems to be deemed to be ignored, as well. Most consumers, in my opinion, would read it with the first bottle of soft drink they'd be purchasing, maybe think about the high sugar content for a second, and maybe even decide that they'd limit their purchases of soft drinks... I have little faith, though, that consumers' resolution would hold for long in this case. To the contrary, just like with warnings on cigarette packs, I'm certain that consumers would quickly stop seeing them. I cannot help but think about the gyms that are full in January, with many consumers acting up on their New Year's resolution to become more fit, and how they empty again mid February... I believe that's what would happen if these warning labels were placed on soft drinks bottles.

BPS RESEARCH DIGEST: Morbid warnings on cigarette packs could encourage some people to smoke

BPS RESEARCH DIGEST: Morbid warnings on cigarette packs could encourage some people to smoke

This does not come as a surprise but still it is a nice confirmation of the already existing psychological theories. This research shows that in case smoking is important for identity and self-esteem of people, the warning about the dangers of smoking might have an opposite effect of the one that the regulatory body intended for it to have: instead of decreasing the desire/need to smoke, it would strengthen it. This research should be taken into account by EU and national regulators who enforce warnings about cancer risks to be put on cigarette packs.