Background

In 2009, Norway introduced legislation to strengthen its advertising ban on tobacco products by prohibiting the display of products at retail (other than specialty tobacconist shops). The ban came into effect on January 1, 2010.

On March 9, 2010, Philip Morris Norway started proceedings at the Oslo District Court to overturn the Norwegian display ban. PM Norway claimed that the ban was an unlawful restriction and contrary to Article 11 of the European Economic Area, as it hinders the free movement of goods

On 19 October 2010, the Oslo District Court requested advice from the European Free Trade Agreement Court (EFTA), asking the court to consider two questions:

1. Shall Article 11 of the EEA Agreement be understood to mean that a general prohibition against the visible display of tobacco products constitutes a measure having equivalent effect to a quantitative restriction on the free movement of goods?

2. Assuming there is a restriction, which criteria would be decisive to determine whether a display prohibition, based on the objective of reduced tobacco use by the public in general and especially amongst young people, would be suitable and necessary having regard to public health?

On June 8, 2011, EFTA conducted a hearing. A document prepared for the hearing summarizes the position of other governments. Supporting Norway at the hearing were Finland, Iceland, (which have both implemented display bans) and the United Kingdom. Governments supporting the position of Philip Morris were Romania and Portugal. The European Commission supported Norway.  

Position of the European Commission:

162. The Commission argues that the display ban is both necessary and proportionate due to the fact that the same level of protection cannot be achieved by less restrictive means. It was for Norway to decide that it was necessary to limit the visibility of tobacco products in addition to the general advertising ban already in place. In the Commission’s view, the effect of the display ban in protecting children and adolescents and supporting those who are attempting to stop consuming tobacco cannot be achieved by other less restrictive means.

After the EFTA Court deliver's its opinion to the Oslo District Court, PMN's legal challenge to Norway's law will be scheduled.

The Court issued answers to the questions on September 12, 2011 that:

1. A visual display ban on tobacco products, imposed by national legislation of an EEA State, such as the one at issue in the case at hand, constitutes a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 11 EEA if, in fact, the ban affects the marketing of products imported from other EEA States to a greater degree than that of imported products which were, until recently, produced in Norway.

2. It is for the national 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.