Plain packaging: the French administrative supreme court dismisses request brought by tobacco companies

As Australia and the United-Kingdom previously did, France adopted a regulation enforcing plain packaging. Therefore, since 1 January 2017, only plain packages can be stored on the tobacconist shelves.

By its decision dated 23 December 2016, the French administrative supreme court (Conseil d’Etat) dismissed all the requests brought by tobacco companies and tobacconists aiming at the cancellation of the decrees n°2016-334 and n°0161117 dated 21 March 2016 and 11 August 2016 and the ministerial rulings dated 21 March and 22 August 2016 related to the conditions of plain packaging.

These decrees and ministerial rulings implement the provisions of article L.3512-20 of the public health Code resulting from the law n°2016-41 dated 26 January 2016 related to the modernization of the French health system. These new provisions particularly determine:

  • the outer color of the packets and wrapping (Pantone 448 C (olive green), matt finish);

  • the inner color of the packets and wrapping (matt finish white or Pantone 448 C (olive green ), matt finish);

  • the trademark name or the manufacturer commercial name position and

  • the characters, the font and colors in which the trademark name or the manufacturer commercial name can be displayed.

Thus, figurative or semi-figurative trademarks cannot be displayed on tobacco products packets or wrapping anymore.

In an attempt to obtain the cancellation of the decrees and ministerial rulings mentioned above, the tobacco companies notably argued that the provisions related to the implementation of plain packaging and prohibiting the display of figurative or semi-figurative trademarks would undermine the use of their trademarks as well as their property right.

By its decision, the Conseil d’Etat rejected the various arguments raised by the plaintiffs considering that « If the challenged provisions result in the prohibition, in the geographical scope they cover, of labelling any figurative signs on cigarettes and rolling tobacco packaging and wrapping, they reserve the right to display the trademark name and the commercial name. […] Property right on tobacco products trademarks is not affected in its actual substance, but only in its operating conditions. Therefore, the challenged provisions do not deprive tobacco products manufacturers from their property right over their trademarks. »

To reach this solution, the Conseil d’Etat ruled that « considering the particular importance attached to the protection of public health, whereas no indemnification mechanism has been arranged, neither the legislator nor the regulatory authority have, by adopting the challenged provisions, disregarded the proper balance that shall be kept between general interest requirements and the protection of property right. »

The Conseil d’Etat balanced two conflicting imperatives and considered that the disputed limitations were proportionate considering the public health objective pursued by the implementation of plain packaging. As previously ruled by the French Constitutional Council (Conseil constitutionnel) in its decision n°2015-727 DC dated 21 January 2016 and the European Court of Justice in its decisions (C-358/14, C-477/14 et C-547/14) dated 4 May 2016, the Conseil d’Etat favored the public health imperative over the rights of trademark owners.

Behring – Anne-Solène Gay –Behring – Plain packaging – Decree n°2016-334 dated 21 March 2016 – Decree n°016 1117 dated 11 August 2016 – Ministerial ruling dated 21 March 2016 – Ministerial ruling dated 22 August 2016 – Conseil d’Etat – French administrative supreme court – Decision of 23 December 2016 – Request – Tobacco companies – Tobacconists – Trademark – Figurative trademark – Semi-figurative trademark – Word trademark – Public health – Constitutional council – Conseil constitutionnel – Decision 2015-727 DC – EJC – C-358/14C-477/14C-547/14

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