The High Court yesterday rejected an application by the Minister for Health and Children, and the State, for an order directing several tobacco companies to discover documents relating to their marketing and advertising campaign for cigarette and tobacco products over the past 10 years.
Mr Justice Kelly ruled the material sought was neither relevant to, nor necessary for, the defence by the Minister and State of an action by the companies, and others involved in the sale and distribution of smokers' accessories, challenging strict new legislation on tobacco products - the Public Health (Tobacco) Act, 2002 (the 2002 Act). He awarded costs of the motion for discovery against the defendants.
He noted that, for the purpose of the companies' action, they accepted that the defendants believe the consumption of tobacco products is injurious to health.
They also accepted the defendants were entitled to enact laws based on that belief and those laws could interfere with constitutional rights as long as that interference was proportionate.
The companies insist the 2002 Act is not a proportionate response.
It remains unclear when the full hearing of the companies' challenge to the 2002 Act will open. The pleadings in the case have closed and, if the Minister does not appeal the judge's ruling on discovery, the action could open later in the current law term. It is unlikely it will be heard before March. The case is listed for mention again on January 27th.
The 2002 Act was signed by the President on March 27th last but the bulk of it has not yet been enacted. It bans advertising of tobacco products and imposes tougher restrictions on the sale and distribution of such products.
It also bans sponsorship by tobacco companies which involves promotion of tobacco products.
The companies claim it is unconstitutional, in breach of the EC Treaty, EU laws and directives, and will have drastic financial consequences for them. They allege it breaches their rights to freedom of expression and communication and their property rights.
The High Court has been told that the Minister and the State will be defending the legislation as "appropriate, proportionate and justified because of the costs that society bears as a result of people being addicted to tobacco falling ill and dying".
Mr Justice Kelly noted yesterday the defence is pleading that 7,000 people die prematurely in this State every year from smoking-related diseases and that the 2002 Act was a justified and proportionate legislative response.
The challenge was brought by several of the tobacco companies, including P.J. Carroll and Company Ltd, John Players and Sons Ltd, Gallagher (Dublin) Ltd and Philip Morris BV Holland.
The plaintiffs also include a businessman who installs cigarette vending machines in bars and other outlets.
Only one part of the 2002 Act has been implemented, involving the establishment of the Office of Tobacco Control.
The companies claim that, as a result of the Act, they cannot plan ahead for the development of their products.