Philip Morris joins challenge to EU ban on heated flavoured tobacco products

Tobacco giant Philip Morris has received permission to be joined in a High Court challenge to a new EU directive banning heated flavoured tobacco products that promoters say are an alternative for smokers who don’t quit.

Last January Ireland’s oldest tobacco manufacturer, PJ Carroll and Co, and an associate company launched the challenge against the Minister for Health, Ireland and the Attorney General.

On Wednesday three companies in the Philip Morris Group – the UK-based Philip Morris Ltd, Philip Morris Products SA of Switzerland and Philip Morris Manufacturing and Technology, Bologna, Italy – applied to be joined as notice parties so they could also oppose the action.

The respondents had opposed the application, saying it was not clear that the outcome of the PJ Carroll proceedings would have any material impact on Philip Morris’s business in Ireland. This was because Philip Morris does not sell flavoured tobacco-heated products here but, the court heard, it intends to do so.

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PJ Carroll consented to the application, the court heard.

Christian Mark Woolfenden, UK and Republic of Ireland managing director of Philip Morris Ltd, said in an affidavit seeking to be joined to the case that the group is “committed to replacing cigarettes with smoke-free alternatives”.

Philip Morris is one of the leading global manufacturers of heated tobacco products, with and without flavours, which are marketed and sold under brand names including HEETS and TEREA, he said.

In 2022 the group shipped some 39.5 million units of such products to the EU, UK and Switzerland. British American Tobacco and Philip Morris represent almost the entire volume share of heated tobacco products sold within the EU, he said.

His group has invested $10.5 billion (€9.7 billion) to develop and commercialise the products, which now represent about 32 per cent of its total revenues, he said.

The group submitted a notification to the Department of Health and the Health Service Executive in 2017 stating it intended to place heated flavoured products on the Irish market. While it is not in the Irish market at the moment, the group has a presence in this market with other products.

Heated flavoured tobacco products represent a “steadily growing focus” of the group to place HEETS and potentially other similar products, including flavoured ones, in the Irish market in the future, he said.

The proposed ban, which is due to be transposed into Irish law in July, will prohibit the sale of flavoured products entirely, he said.

His group had a “substantial and direct interest” in this challenge and “in upholding their continuing freedom to place these products on the Irish market”, he said.

Mr Justice Charles Meenan was satisfied Philip Morris met the test to be joined to the proceedings as they were clearly affected by the matter.

However, the companies would be allowed to do so on terms including that their involvement will not lead to the lengthening of the trial. This meant the PJ Carroll companies will have to cede some of the time they would normally be given to make the case, he said.

He also said that if the case is successful Philip Morris will have to bear its own costs and if it fails the State parties would be entitled to an award of costs against the group.

He adjourned the matter to July for hearing.