Litigation Letter

Court of Appeal upholds tobacco packaging regulations

R (on the application of British American Tobacco UK Ltd and Others) v Secretary of State for Health [2016] EWCA Civ 1182, 30 November 2016

This is a high-profile appeal against the refusal of the appellants’ application for judicial review of the controversial Standardised Packaging of Tobacco Products Regulations 2015, which required all tobacco packaging to be olive green and include large images showing the negative health consequences. The appellants, who were all tobacco products manufacturers, argued that (1) the restrictions on the use of their trademarks interfered with the rights or freedoms conferred by their trademarks; (2) the use of a design under reg 6/2002 could not be prohibited in only part of the EU; (3) the restrictions breached art 1 of Protocol 1 (A1P1) of the ECHR; and (4) the UK had no competence to legislate independently of the EU on the use of intellectual property rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

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