British American Tobacco UK Ltd & Ors, R (on the application of) v Secretary of State for Health

Restrictions on tobacco advertising at the point of sale must satisfy proportionality review under Article 10, but the intensity of review depends on context. Where Parliament has enacted a stringent advertising prohibition and entrusted the Minister with a limited power to permit regulated point-of-sale advertising, the court must accord appropriate weight to that legislative choice. The protection of public health is a sufficiently important objective, and the Minister may draw a single, comprehensive and readily enforceable line between permissible and prohibited advertising. The court should not substitute its assessment for the Minister’s on detailed questions such as poster size, positioning, vending-machine displays or differences between retail premises, provided the measures are rationally connected to the objective and do not exceed what is necessary. The same conclusion applied to the Article 28 free-movement challenge.

Six tobacco-industry companies sought judicial review of the Tobacco Advertising and Promotion (Point of Sale) Regulations 2004. The Regulations, made under section 4(3) of the Tobacco Advertising and Promotion Act 2002, restricted point-of-sale advertising to limited formats, including a single A5 advertisement at a sales point and specified advertisements on vending machines.

The claimants alleged infringement of Article 10 of the Convention, breach of Article 28 of the EC Treaty, and inadequate consideration by the Minister of less restrictive alternatives. The central issues were the proper intensity of proportionality review, the objectives pursued by the Regulations, and whether the restrictions were excessive or insufficiently tailored.

1. The application for judicial review was refused. The Regulations remained subordinate legislation and were open to Convention review, notwithstanding the strict primary prohibition in section 2 of the Tobacco Advertising and Promotion Act 2002. That legislative context was, however, relevant to the degree of weight owed to the Minister’s regulatory judgment.

2. Under Article 10, a restriction must pursue a sufficiently important objective, be rationally connected with that objective, and impair the protected right no more than necessary. The intensity of review varies with context. Commercial expression receives protection, but the protection of public health is a powerful countervailing consideration. The court must avoid turning proportionality review into merits review.

3. The Regulations pursued objectives extending beyond the protection of children. Point-of-sale advertising could also encourage tobacco consumption by adults, and the restrictions formed part of a wider public-health scheme. The objective was sufficiently important and the measures were rationally connected with it.

4. The restrictions were not disproportionate. The permitted A5 advertisement, product displays and price lists could continue to communicate useful information about products, prices and characteristics. The Minister was entitled to restrict advertising to one sales point, apply a common regime to different types of premises, and limit vending-machine advertising to one packet depiction per brand. Detailed choices of size, position and format were matters on which the Minister had a considerable discretion.

5. The Article 28 challenge did not require resolution of whether Article 28 was engaged. The justification test was materially similar to the Article 10 proportionality test, and the Regulations were justified by the protection of public health.

6. The Minister was entitled to explain and defend the Regulations in response to objections raised in litigation. That did not amount to impermissible ex post facto rationalisation where the underlying policy had been formed on appropriate considerations and no specific flaw undermined its rationality or proportionality.