Tough new legislation banning the advertising and promotion of tobacco products is expected to be scrapped because of failure to notify aspects of it under an EU directive.
However, it seems certain that the legislation will be re-enacted, though perhaps in a revised form.
Mr Frank Clarke SC, for the Minister for Health and Children and the State, told the High Court yesterday that the Minister accepted that various sections of the Public Health (Tobacco) Act, 2002 should have been notified under the EU Transparency Directive, and this had not been done.
The European Commission had previously indicated its view that the legislation should have been notified under the directive.
Yesterday, while accepting that this was so, Mr Clarke also indicated that the Minister did not accept that other sections of the Act, which provide for the Minister to introduce regulations relating to smoking in public places, are also covered by the directive. The Minister intended to proceed with these.
Given the failure to notify, Mr Clarke said it was his view that legal challenges to the Act, which are presently before the High Court, are, with certain exceptions, moot (redundant).
Lawyers for the various companies taking those challenges asked Mr Justice Kelly to adjourn the matter for a week to consider the situation in light of the comments made by Mr Clarke.
The legal challenges were initiated last year, but no date for the full hearing was fixed pending resolution of several issues, including issues relating to the Transparency Directive.It had been expected that the full hearing would proceed in April or May.
The 2002 Act was signed by the President on March 27th last, but the bulk of it has not yet been implemented. It bans advertising of tobacco products and imposes tougher restrictions on the sale and distribution of such products.
The Act also bans sponsorship by tobacco companies which involves promotion of tobacco products.
Only one part of the 2002 Act has been commenced, involving the establishment of the Office of Tobacco Control (OTC).
The companies claim that, as a result of the Act, they cannot plan ahead for the development of their products.
Last night, a spokeswoman for the Department of Health said that 14 out of 53 sections of the Act which had a "cross-European impact" should have been notified to the EU prior to their enactment.
"We are going to repeal those sections, notify the EU and re-enact them. That will probably take three to six months," she said. "It's just a technicality that should have been done. It is important to note that this has no impact on environmental tobacco controls."
Gallaher (Dublin) Ltd, suppliers of Silk Cut and Benson & Hedges tobacco products, said that it would not comment on the case until it was finalised next Monday.
