Scotland - Imperial Tobacco loses attempt to overturn ban on cigarette displays and removal of vending machines..

See the directly related news brief - with background information: July 2010 - Scotland - Imperial Tobacco in legal action to stop ban on cigarette displays and vending machine removal..

Lord Bracadale threw out the company's legal challenge and said Scottish ministers were within their legislative rights to restrict tobacco sales to safeguard public health, particularly among teenagers and young adults.

The ruling is a significant setback for Imperial and other tobacco manufacturers. The company, which has a 45% share of UK cigarette sales and 58% of tobacco sales, is pursuing a similar legal action in London to overturn a ban on over-the-counter displays due to come into force in England and Wales in October 2011.

It now faces the prospect that this challenge may also fail, but Imperial reacted to the Scottish ruling by indicating it was likely to appeal and insisted today's judgment had no bearing on its legal action in England and Wales. The company argues that the devolved government in Edinburgh does not have the legislative power to introduce the main bill, the Tobacco & Primary Services Act, which has brought the controls into force. (UK - Vending Machines..Imperial Tobacco seeks Judicial Review..)

In a short statement, Imperial said its subsidiary Sinclair Collis, the UK's largest cigarette vending machine company, was still pursuing its legal challenge to the vending machine ban in Scotland. A two-week hearing is due to start in the civil court in Edinburgh, the court of session, at the end of October. Sinclair Collis is pursuing a similar case in London.

The company added that it could also still challenge the forthcoming Scottish government regulations on the precise controls banning over-the-counter displays. "Imperial will consider its position once these regulations are published," the company said.

In today's ruling, Lord Bracadale rejected Imperial's argument that the Scottish legislation involved consumer law and the control of the sale of products to consumers – areas which are reserved to Westminster. The judge concluded that the act's purpose "was to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term". That was not a reserved matter under the Scotland Act 1998 that created the Scottish parliament. Bracadale also rejected suggestions that the act was in conflict with freedom of trade provisions in the Act of Union which unified the Scottish and English parliaments in 1707.

"Freedom of trade should be interpreted as relating to a common market," he said. "An examination of the historical context in which the acts of union were passed made it clear that the paramount concern on the Scottish side of entering the union with England was gaining entrance to the common market of England and her colonies."

Nicola Sturgeon, the Scottish health secretary, said that her government was pleased by Bracadale's ruling. "We robustly defended our proposals in court," she said. "Banning the display of tobacco products in shops will help to discourage a future generation of smokers. We are committed to doing all we can to improve the nation's health and cutting smoking rates is a key part of this drive."

Scottish government officials said they were now pressing ahead with implementing the new measures.

Sheila Duffy, the chief executive of the anti-smoking campaign group Ash Scotland, said she was delighted. The industry always sought to "dilute, derail or delay" new legislation which affected its income, she said. In April, Imperial reported six-monthly pre-tax profits of £974m. "It is these huge profits – nearly £1bn being made in just six months – that are then being ploughed into challenging the aims of governments around the world to use legislation to reduce the major harm caused by smoking to their citizens' public health," Duffy said. "In this case, it is Scotland's aim to reduce the rates of children smoking."

Reference: Imperial Tobacco loses bid to stop Scottish cigarette ad ban Tobacco firm fails in bid to overturn Scottish government's ban on over-the-counter cigarette displays and vending machines, Severin Carrell, Guardian.co.uk, 9/30/2010.

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