High Court deals another setback to smoking, tobacco industries

Additional restrictions will kick in in June and in January 2020.

A 40g pouch of Bali Shag Halfzware, Bali Shag Halfzware tobacco and red Bali Shag rolling papers (photo credit: HANGFIB/WIKIMEDIA COMMONS)
A 40g pouch of Bali Shag Halfzware, Bali Shag Halfzware tobacco and red Bali Shag rolling papers
The High Court of Justice dealt another setback to the various smoking industries, ordering on Monday that the state set taxes for roll-your-own tobacco products at the same level as ordinary cigarettes.
The ruling comes following a year in which the Knesset passed a broad anti-smoking advertising law that impacted ordinary cigarettes, heated tobacco products (like IQOS) and e-cigarettes (like Juul), as well as earlier government moves which forced Juul to reduce the level of nicotine in its products.
While the High Court gave Juul partial relief in the fall of 2018 from a wider ban, it did not save the e-cigarette company from government requirements to reduce its products’ nicotine content.
It also follows a year when both the US Food and Drug Administration advisory committee and a major academic study from the San Francisco-based Center for Tobacco Control Research and Education rejected claims that heated tobacco products, such as IQOS, cause less tobacco-related disease and death than conventional cigarettes.
The FDA still has yet to issue a final ruling, which could come soon, but manufacturers of heated tobacco products were already put on the defensive by the developments. Furthermore, lawsuits filed by Smoke Free Israel in 2017 had already placed IQOS in the same box with ordinary combustible cigarettes in the Jewish state.
Regarding Monday’s ruling, High Court justices Dafna Barak-Erez, George Kara and Alex Stein wrote that Health Ministry professionals had determined that roll-your-own cigarettes and ordinary cigarettes are functionally the same.
They said in their decision that since the Health Ministry held that health risks posed by the products were essentially identical, there was no basis for taxing them differently.
Filed by Smoke Free Israel and the Israel Cancer Association, the petition was supported by the Health Ministry and Attorney-General Avichai Mandelblit, but had been opposed by Finance Minister Moshe Kahlon, reportedly because of his general objection to raising taxes.
Smoke Free Israel CEO Shira Kislev was happy with the ruling, but also expressed concern that the justices left the door open for Kahlon to tax roll-your-own cigarettes and ordinary cigarettes the same by reducing taxes on ordinary cigarettes.
The justices said that it was not their job to set tax policy, but Kislev said that they sent a warning shot to Kahlon that his decision should be made based on what is best for citizens’ health and not what is best for the tobacco companies. In other words, they suggested that Kahlon raise taxes on roll-your-own cigarettes rather than reduce taxes on ordinary ones.
Going forward, Kislev said that the Knesset legislation passed in December would take effect in three waves.
She said that the advertising ban does not go into effect until March, leaving Juul and others to sprint to the finish line with their current advertising campaigns. Additional restrictions will begin in June and January 2020.
The December legislation treated IQOS with the same advertising restrictions as ordinary cigarettes, requiring 60% of the packaging to be covered by warnings. It required a much less aggressive warning on Juul and other e-cigarettes, covering only 35% of the packaging.
Print media will be an exception to the broad ban on cigarette advertising, which Kislev said was regrettable but necessary to get support for the Knesset law.
Health experts are often concerned that roll-your-own cigarettes, IQOS and Juul, while each a different category of product, may uniquely tempt teenagers as each tries to promote its brand as being less dangerous than regular cigarettes – regardless of advertising laws.