Ban on cigarette vending machines justified and proportionate

13 May 2011

As part of a government campaign to tackle smoking in Scotland, it was decided that measures had to be taken to dissuade children and young people from starting to smoke in the first place.  One of those measures was to ban the sale of tobacco through vending machines because they are a known source of tobacco to underage smokers.  The ban was achieved by enactment of Section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 which makes it a criminal offence for a person to manage or control premises where there is a tobacco vending machine available for use.  Section 9 is planned to come into force in 2012. 
 
Cigarette vending machine companies challenged the ban as being outwith the legislative competence of the Scottish Parliament.  They relied on free movement of goods provisions under EU law (because a ban on cigarette vending machines would affect imports of those machines) and Article 1 of Protocol 1 ECHR (because the ban interfered with their cigarette vending machines which were possessions). They relied heavily on the fact that a different option could have been chosen rather than a ban, of requiring age restriction mechanisms to be used for tobacco vending machines. 
 
Lord Doherty (2011 CSOH 80) found that Section 9 was within legislative competence.  On the EU challenge, the Lord Advocate had argued that as a 'selling arrangement', Section 9 fell outwith Article 34 TFEU.  Lord Doherty found that this matter was not clear and he would have had to refer it to the European Court of Justice had it been necessary to his decision.  But, because Section 9 was objectively justified and proportionate, he did not need to.  He found there was a wide area of discretion to be afforded to Acts of the Scottish Parliament.  Likewise, although the ban on cigarette vending machines was a control of use of the petitioner's possessions, it was justifiable in the public interest and was proportionate.  He reached the same decision on competence as the court in a similar challenge in England (Sinclair Collis v Secretary of State for Health 2010 EWHC 3112 (Admin), currently under appeal). 

Anna Poole of Axiom Advocates was junior counsel for the Lord Advocate, defending the legislation.  Section 9 has also separately been challenged as being outwith legislative competence on other grounds under the Scotland Act 1998, and there is a forthcoming appeal by Imperial Tobacco against the decision of Lord Bracadale in that case (2010 CSOH 134) which is due to be heard in June 2011 (in which Anna Poole and James Mure QC of Axiom Advocates are acting for the Lord Advocate).

http://www.scotcourts.gov.uk/opinions/2011CSOH80.html