Firms want no detailed evidence in challenge to tobacco ads ban

New regulations restricting the advertising of tobacco products, due to come into effect in December, are designed to prevent "any form of advertising" of tobacco, and are justified because of the adverse health effects of smoking, counsel for the State told the High Court yesterday.

Mr Justice Kelly reserved judgment as to whether, during the hearing of a challenge to the new laws by various tobacco companies, the State may call detailed evidence as to the health effects of smoking tobacco. The hearing is expected to open in October. The new regulations are set out in the Public Health (Tobacco) Act 2002, as amended.

The challenge is against the Minister for Health and Children, and the State. The State's defendants contend they are entitled to call the evidence to demonstrate that the legislation is a proportionate response by the Oireachtas to the public health issues raised through the consumption of tobacco products.

However, the tobacco companies contend there is no need, given admissions made by the companies for the purpose of the legal proceedings, to go into any detailed evidence.

Mr Donal O'Donnell SC, with Mr Paul Gallagher SC, for the companies, yesterday urged the judge not to have the court embark on such a course. When a Canadian court engaged in a similar exercise, it lasted some six months, Mr O'Donnell said.

Given that the matter raised issues regarding what evidence the courts may hear when considering issues related to the proportionality of legislation, and that his decision might have wider implications outside the present case, Mr Justice Kelly said he would reserve judgment.

The legal challenge will be heard at the Commercial Court, a division of the High Court. The case was initiated last April and involves 16 companies engaged in the supply and distribution of tobacco products. Other plaintiffs are involved in supplying cigarettes for vending machines, and one is a newsagent representing a number of retail outlets.

The plaintiffs claim the disputed provisions of the 2002 Act are unconstitutional and in breach of EU law and the State's obligations under the European Convention on Human Rights.