Legislation appeal up in smoke as judge rules against tobacco company

LEGISLATION to curb smoking by imposing a ban on tobacco displays in shops came a step closer yesterday after an appeal against the proposals by one of the world’s biggest tobacco companies was rejected by judges.
Imperial Tobacco went to court to challenge the provisions of the Tobacco and Primary Medical (Scotland) Act 2010 on the grounds that the matter was reserved to Westminster and outwith the legislative scope of Holyrood.
Yesterday at the Court of Appeal in Edinburgh three judges upheld an earlier appeal that ruled none of the grounds submitted by Imperial were valid and the legislation should stand. Imperial could now take the matter to the Supreme Court in London.
Michael Matheson, the public health minister, welcomed the decision. “I am delighted that the court has upheld the ruling made in September 2010 by Lord Bracadale to dismiss Imperial Tobacco Limited’s legal challenge against the bans on tobacco displays and tobacco sales from automatic vending machines,” he said.
Vicky Crichton of Cancer Research UK said: “We welcome this ruling by appeal court judges. We hope this judgment allows Scotland to move forward with plans to protect future generations of children by putting tobacco out of sight and out of mind.”
The legislation, which will ban the open display of cigarettes in shops and outlaw vending machines, was due to have come into effect in large retailers last October but was delayed until April 2012 because of Imperial’s legal challenge.
Three weeks ago the Scottish Government announced a further delay to “a date to be announced”. The display ban for small shops is scheduled for 2015.
Campaigners against smoking have said the Act will bolster Scotland’s reputation as a world leader in tobacco control.
But retailers and the tobacco industry warned that the legislation would have a severe effect on small shopkeepers who were already reeling from the recession. Sections 1 and 9 of the Act make it an offence to display tobacco products or smoking-related products in the course of business, and to have control of premises on which a vending machine is available.
In his judgment, Lord Hamilton said the objectives of the provisions were not in doubt.
“The risk which the smoking of tobacco products is perceived to present is to health, primarily of the smokers as consumers but also of those non-smokers who may be exposed to a smoke-filled environment and, by ‘passive smoking’, suffer adverse affection,” he added.
Imperial maintained that the provisions related to a reserved matter, the regulation of the sale and supply of goods to consumers, and also claimed they modified article 6 of the Union with England Act 1707, so far as it related to freedom of trade, and therefore breached the Scotland Act 1998