SWA disappointed at judges’ rejection of Imperial Tobacco’s display challenge
THE Scottish Wholesale Association has expressed its disappointment at today's decision by appeal judges to reject a bid by Imperial Tobacco to challenge the Scottish Government's plans to ban the open display of cigarettes.
Appeal judges turned down the challenge by Imperial Tobacco which said the ban is disproportionate and has no proven link to cutting child smoking.
The company brought its legal action on the basis that the Scottish Parliament has no powers to pass the measure, because regulations on the sale of goods in Scotland are reserved to Westminster. The case was previously dismissed by the Court of Session in Edinburgh.
Today's ruling said that the measures in the Tobacco and Primary Medial Services (Scotland) Act 2010 were not outside the scope of the Scottish Parliament's powers.
Last month, the Scottish Government decided to delay its ban on displaying tobacco in big supermarkets from October 2012 because of the legal challenge, and said that industry lobbying had played a key role in that decision.
In today's appeal judge ruling, Lord Hamilton said of cigarette displays: "Such display is conceived to encourage the purchase of such products. As the consumption, particularly by smoking, of such products is believed to be adverse to health, the section is designed to inhibit, without prohibiting, their purchase."
Kate Salmon, executive director of the SWA, said: "The Tobacco and Primary Medical Services (Scotland) Act is law so our aim has been to impose on the Scottish Government the need to ensure that its implementation is as straightforward and simple as possible for Scotland's already hard-pressed retailers.
"We are extremely disappointed, therefore, with today's decision. While we respect the decision, the SWA is confident that our robust lobbying against the proposals to date - and, crucially, our sound business reasons for opposing them - has had a major impact."
The Scottish display ban is one of several measures contained in the Tobacco and Primary Medical Services Act, which introduces £200 fines for those who sell tobacco to under-18s.
Salmon continued: "Scott Brady, our independent lobbyist, has worked long and hard on our behalf to get our messages across and we are particularly delighted that Michael Matheson, the Public Health Minister, recently announced changes to the display area size - another key issue on which we lobbied."
In addition to the display ban, the Scottish Government had originally proposed restricting the size of the space used for the sale transaction so that only an area the size of one cigarette packet could be opened in the store cabinet.
Ministers have now amended this to an area the size of about 12 packets, still much smaller than the rules in England. This means that the permissible size of tobacco display during a transaction will be 1000 sq cm and not 120 sq cm as previously cited by the Scottish Government.
"This is a clear sign that the views and concerns of SWA members, whose retail customers serve communities the length and breadth of Scotland, have been taken on board," said Salmon. "We raised a number of safety and practical concerns about limiting the display size during a sale and while the larger size is still far from ideal, it is a much more satisfactory scenario for independent retailers."
Despite the delay in banning tobacco displays in large stores, the measure is still set to come into force in small shops, as planned, in 2015. In addition, the new laws in England to move cigarettes under the counter in supermarkets will come into force in April.
"The SWA will continue to put pressure on the Government during the preparation of the display guidance which is yet to be published," added Salmon. "We have made hugely positive advances as far as the wholesale sector is concerned and conducted a robust lobbying campaign that has clearly swayed the Government. But that does not change the fact that this legislation puts the future livelihoods of independent retailers at risk."