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Norway: Tobacco Display Ban Upheld

(Oct. 1, 2012) On September 14, 2012, the Oslo District Court issued a ruling upholding <?Norway's ban on the display of tobacco products. The ban had come into force on January 1, 2010, based on the 2009 amendment of the 1973 Tobacco Control Act. (Press Release, Ministry of Health and Care Services, Norway’s Tobacco Display Ban Law Upheld by Court (Sept. 14, 2012); Act No. 14 of 9 March 1973 Relating to Prevention of the Harmful Effects of Tobacco (the Tobacco Control Act), Tobacco Control Laws website; LOV 1973-03-09 nr 14: Lov om vern mot tobakksskader (tobakksskadeloven) [Act on Protection Against Tobacco (Tobacco Control Act)] (Mar. 9, 1973, as last amended June 24, 2011, in force on Jan. 1, 2012).)

The aim of the ban is to curtail impulse buying of tobacco products; in imposing it, Norway emulated Iceland and Ireland, among other countries. The Tobacco Control Act prohibits the visual display of tobacco products and smoking accessories, as well as of imitation products and of cards used in vending machines to obtain the products or accessories, at points of sale. (Tobacco Control Act,§ 5.) Thus, cigarettes must be kept in closed cases and brand labels may not be displayed in cigarette vending machines. (Cigarettes Smoking Ban Verdict Due on Friday, THE OSLO TIMES (Sept. 12, 2012).) Only tobacconist shops are exempt from the visual display ban. (Tobacco Control Act, § 5.)

Phillip Morris Norway sued Norway in March 2010, claiming that the prohibition was in violation of article 11 of the Agreement on the European Economic Area (EEA, comprising the countries of the European Union plus Iceland, Liechtenstein, and Norway) because it interferes with the free movement of goods. The Norwegian government maintained that the display ban conforms to the World Health Organization’s (WHO) Framework Convention on Tobacco Control (Norway became a Party on June 16, 2003), as well as to new legislation in other EU and EEA jurisdictions. (Press Release, supra; WHO Framework Convention on Tobacco Control, WHO website (last visited Sept. 28, 2012).) It also contended that the ban”is substantiated by extensive research” and “constitutes an important measure in order to further reduce tobacco use in general and smoking in particular.” (Press Release, supra.)

Before hearing the case, the Oslo District Court requested an advisory opinion in October 2010 from the European Free Trade Association (EFTA), which comprises Iceland, Liechtenstein, Norway, and Switzerland. (EFTA Rules on Display Ban, TOBACCO JOURNAL (Sept. 12, 2011).) In a ruling issued on September 12, 2011, the EFTA court essentially agreed “that the display ban could to a certain extent be seen as blocking the free movement of goods, thus violating EEA rules.” (Norway Wins Cigarette Display Case, supra.) However, it also maintained that it was up to Norway’s court “to identify the aims which the legislation at issue is actually intended to pursue and to decide whether the public health objective of reducing tobacco use by the public in general can be achieved by measures less restrictive than a visual display ban on tobacco products.” (Judgment of the Court (Sept. 12, 2011), EFTA website.)

The Oslo District Court held that the prohibition on display of tobacco products does not constitute a barrier to trade and that, even if it did, “it can be justified for public health reasons.” (Press Release, supra; Forbud mot synlig oppstilling av tobakk [Prohibition of Visible Display of Tobacco], Oslo District Court Case No. 10-041388TVI-OTIR/02 (Sept. 14, 2012).)