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Hearing in Clinic-case against Dutch Ministry of Health

Dutch administrative court to hear arguments on “cheating cigarettes” on 11 November 2019

On 11 November 2019,  the District Court of Rotterdam will hold a public hearing in the case concerning the so-called “cheating cigarettes”. Students of the Amsterdam Law Clinic conducted research to assist the plaintiffs’ lawyer in this case, Mr. Phon van den Biesen. “The (confidential) report by the Amsterdam Law Clinic really helped me in laying the foundation for the proceedings in this case”, says Mr. Van den Biesen.

In the proceedings, Mr. Van den Biesen represents a collective of clients, all of whom have an interest in protecting the public from the harmful effects of smoking. Mr. Van den Biesen and his clients argue that the testing methods used to test the toxic levels in cigarettes are being manipulated by the cigarette manufacturers (hence the name “cheating cigarettes” or “sjoemelsigaretten” in Dutch). Consequently, cigarettes that are being sold and consumed in the Netherlands contain much higher levels of toxins (tar, nicotine and carbon monoxide) than what is allowed under EU law. This manipulation of measuring toxic levels has been confirmed in research by the Netherlands National Institute for Public Health and the Environment of the Ministry of Health Welfare and Sport (Rijksinstituut voor Volksgezondheid en Milieu, “RIVM”).

In 2018, the plaintiffs filed a complaint with the Netherlands Food and Goods Authority (Nederlandse Voedsel en Waren Autoriteit, “NVWA”) with a request to take measures against the testing methods. The NVWA denied this request. The Ministry of Health was to take a decision on the subsequent objection against the NVWA decision, in which it in turn denied the claims put forward. The plaintiffs therefore appealed the Ministry’s decision with the District Court in Rotterdam, which will hear arguments on 11 November in a public hearing starting at 9.30am.

The plaintiffs claim that the testing methods are in violation of the EU Tobacco Products Directive (2014/40/EU). A team of five Master students participating in the Amsterdam Law Clinics, drafted a comprehensive report in which they analyzed this Directive and other EU (tobacco) law, as well as human rights law and Dutch administrative law. The case was supervised by dr. L.J. Ankersmit (Director Amsterdam European Law Clinic) and L.C. Talsma LL.M. (Director Amsterdam Law Clinics). Over the course of the semester we held several intense and thought-provoking discussions with Mr. Van den Biesen on the legal aspects of this case, which (together with the report) helped shape his arguments in the proceedings.

Should you be interested in attending, the hearing is open to the public. Check the court’s website for visiting requirements. We will keep following this case closely and look forward to learning the outcome in the proceedings. To be continued…