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21-04-2015 » Trademark law and tobacco prevention

A draft law on the modernization of the French health system was adopted by the National Assembly on April 14, 2015.

With this law France will implement provisions relating to the so-called « plain  packaging» of cigarettes, which result from Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products (and repealing Directive 2001/37/EC), also known as the « tobacco products directive ». Other European countries, such as Ireland where, following the Australian example, this regulation was adopted in February 2015, are going to adopt similar provisions in their national laws, knowing that the Directive must be incorporated in national legislation of Member States of the European Union before May 20, 2016.

Looking solely at the provisions relating to trademark law, it may be seen that the newly adopted rules are planned to come into force on May 20, 2016 and to be incorporated in the French Public Health Code under Article L.3511-6-1 which will read as follows:

« The unit packets, outside packagings and overpacks of cigarettes and roll-your-own tobacco, cigarette paper and cigarette rolling paper are to be plain and standardized. »

« The rules regarding their neutrality and standardization, including technical specifications about their shape, size, texture, color, and the procedures for presenting trademarks and trade names on these supports shall be set by decree. »

As the text currently stands, trademarks and trade names can still appear on tobacco packaging, but they must comply with the rules provided by the Directive in its chapter II « Labelling and packaging ». Indeed, according to the Directive, each unit packet must carry health or general warnings and trademarks and logos cannot be placed above health warnings (article 10.1 e). Both warnings must conform to specific dimensions.

Several provisions of the Directive, in particular those regarding the standardization of the conditioning of tobacco products, are the subject of a question for preliminary ruling by the Court of Justice of the European Union (CJEU), submitted by the High Court of Justice, Queen's Bench Division (Administrative Court) (England and Wales) (United Kingdom) on December 1, 2014 – Philip Morris Brands SARL, Philip Morris Limited, British American Tobacco UK Limited / Secretary of State for Health (Case C-547/14). The answers provided by the CJEU will be decisive, especially when it comes to the presentation of these products and their circulation within the European Union, when their presentation differs from one Member State to another.

The fight against smoking is based on the desire to help smokers avoid the influence of tobacco, but also to prevent young people from starting to smoke. Thus, the law includes provisions regarding the features that may make tobacco attractive, such as additives or flavors, and will extend to all forms of tobacco and tobacco substitutes (smokeless tobacco, electronic cigarettes, including refill containers).

Therefore, the latter products will follow the same rules that previously applied to tobacco, tobacco products and components, regarding direct and indirect advertising and publicity, on all media, as well as sponsorship operations when they have, as their purpose or effect, to advertise or spread propaganda for tobacco (Art. 5 sexties and 5 octies amending Article L. 3511-3 of the Public Health Code).

It seems that protecting young people from the harmful effects of smoking has prompted measures on alcohol prevention. The regulations regarding the advertising of alcoholic beverages now prohibit inducing a minor to binge drinking. Thus, it will be strictly forbidden to propose to a minor, whether free or for payment, any article that directly induces binge drinking (Art.4).

Update: Decree 2015-427 of April 15, 2015 on the placing of allegedly infringing goods in detention under a customs procedure was published in the JORF on April 17, 2015 (text 15). The decree allows the implementation of the provisions specified by Article 7 of the 2014 Law on Counterfeiting.

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