Big tobacco is pushing an ironic message for the EU countries dragging their feet on complying with a law requiring them to slap ominous messages and images on their products: Hurry up please.

While the industry makes no bones about hating those warnings and is fighting them in court, they also say EU countries and the European Commission must finish implementing the historic tobacco products directive so companies can comply in time. The law that has been called the most lobbied legal file in EU history officially takes effect Friday.

Production lines have to be adapted for the new packaging by the effective date of the law, and even minor technical details like whether the graphic warnings can go over the rounded edges of a cigarette pack or not make a big difference, said Giovanni Carucci, vice president for EU Affairs at British American Tobacco.

“We operationally have to get ready,” said Alan Hardacre, senior head of public affairs and strategy at Imperial Tobacco.

“DG Sante said, ‘You know what’s in the directive, just do it.’ But I don’t think they understand how business works,” said Ben Townsend, head of EU affairs at Japan Tobacco International.

The directive makes sweeping changes to how cigarettes and related products are marketed in the EU, hiking the amount of space devoted to health warnings and banning flavors that might make smoking attractive to young people.

Countries must require that tobacco companies use one of the Commission-approved graphic images, which include grotesque pictures of throat cancer, corpses with dog tags and a couple in bed with a warning of smoking potentially leading to impotence.

And if those don’t speak a thousand words, they will be accompanied by big written messages like “Smoking can cause a slow and painful death.”

Several technical, detailed rules on how the directive should be applied are still pending from the Commission, which has missed self-imposed deadlines. At the same time, only eight EU countries have formally notified the Commission that they have transposed it into their national law so far.

Despite all its complaints, tobacco is not getting much sympathy from the Commission, which directs them to the laggard countries.

“Maybe the tobacco industry’s lobbying should have focused more on the member states so they can implement the directive early,” said Arūnas Vinčiūnas, EU Health Commissioner Vytenis Andriukaitis’s chief of staff, speaking during an April event organized by the EU Ombudsman Emily O’Reilly. 

He explained that often the EU country officials who negotiate a directive are not the same as those who need to implement it. “Implementation only starts when the negotiations are over and then people start wondering ‘what are we going to do,’” Vinčiūnas said.

It’s unclear where each country stands, days before the Friday deadline. While the Commission counts eight, information provided by Imperial’s Tobacco offices showed 13 countries having translated the directive into national law, including Germany, Sweden, Belgium, Bulgaria and the Baltic States.

And legislative processes are at work in most of the other EU countries, such as the U.K., Ireland, France and Spain, according to the company. The only country with no official draft law yet is Greece, it said.

The charm offensive

The pleas come as the global tobacco giants have been on a charm offensive in Brussels and EU capitals in recent months.

Officials from Imperial Tobacco, BAT and JTI have made high-profile appearances at public events, for example, and have become uncharacteristically media-friendly, in a bid to make their case.

“We should speak up more and we should show our face; we should not be afraid to say what we think,” BAT’s Carruci said, speaking about the change in the company’s communication tactics from the time the directive was being drafted.

The top World Health Organization representative to the EU recently alluded to the industry’s efforts.

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The official, Roberto Bertollini, warned that the tobacco industry is trying to reshape its image and become a legitimate partner for discussion to decision-makers, a move that he called dangerous.

“The tobacco industry is trying to manipulate the public opinion through an appearance of respectability,” Bertollini said at the same event where Vinčiūnas spoke.

Industry lobbyists say they are being ostracized and they can be good partners, noting that their companies, which manufacture a legal product, should be heard.

They point to practical issues that need to be resolved, including the date that member countries must put the directive into national law is the same as the date for when new manufacturing must start.

“It’s a mistake,” said BAT’s Carucci.

Industry representatives blame the speed with which the directive went through negotiations between the three EU institutions in 2013 as the cause for the overlap. Countries tend to implement EU directives late, so tobacco companies should have been given a buffer time until they need to start producing compliant packs, they said.

As for the Commission, it is lagging behind its own internally set deadlines in some cases. For example, it planned to propose the list of priority additives — the most harmful chemicals added to tobacco products that should trigger additional reporting obligations from tobacco companies — by the end of March.

That is still looming, according to the Commission’s latest update in late April.

And the rules about tobacco with flavors, which will be banned in five years, are also pending, though that also had a release planned for the end of March.

Andriukaitis recently promised members of the European Parliament that those rules would come by Friday. “The Commission is fully on track with this; we will be adopting very soon the implementing acts on ingredients and characterizing flavors,” he said at the end of April, speaking to MEPs in the environment and health committee.

The contradiction

The tobacco companies’ push for the directive to take effect comes despite attempts to crush it on multiple legal fronts, including legal attacks on the room it gives EU countries to introduce plain packaging, following Australia’s example.

Plain packaging goes beyond the graphic pictures mandated by the directive and eliminates companies’ logos and any other branding elements from the packs. The result is a drab pack with the brand name written in an undistinguishable bland font.

The French subsidiary of Imperial Tobacco said last week that it was challenging the country’s new rules on plain packaging before France’s top administrative court, claiming it violates intellectual property rights.

That came shortly after the European Court of Justice said that the directive’s standardization of tobacco packs, featuring graphic pictures combined with written health warnings, was not a disproportionate measure, and that countries were allowed by the directive to go further and introduce plain packaging. That particular case, initiated by BAT and Philip Morris, was referred by a U.K. court to the ECJ.

The final ruling in the U.K. is expected two days before the Friday deadline.

JTI is also fighting plain packaging in the courts in the U.K., Ireland and France, claiming that it infringes their intellectual property rights and goes beyond the intent of the EU law.

“I don’t think anyone should be surprised by legal proceedings against standardized packaging,” JTI’s Townsend said.

Yet the court cases have not stopped the U.K., France and Ireland from pushing forward with plans to introduce plain packs starting Friday. Consumers should expect to see the new, uglier packs on the shelves around November in France, as tobacco producers are allowed to clear their existing stocks before introducing the new ones, French Health Minister Marisol Touraine said.

Hungary and Slovenia also notified the Commission that they intend to introduce plain packs in the near future, and so is Belgium, starting in 2019.

Sordid history

The EU institutions passed the directive in 2014 after much struggle and following the dismissal of then-EU Commissioner for Health John Dalli, who faced accusations that he was negotiating a large bribe from a Swedish tobacco company to water down the draft law.

National governments had two years to transpose it into their national laws; the deadline that is now approaching. 

Both before and after the law was passed, tobacco companies lobbied furiously to stop it, claiming that the measures were exaggerated and infringing on their intellectual property rights, among others.

The Commission considered the written and graphic warnings necessary to cut the lure of smoking among the young and thus decrease consumption. Its impact assessment supporting the proposals said a 2 percent drop in tobacco consumption levels across Europe was to be expected by 2021. That represents some 2.4 million smokers quitting, according to the assessment.

In the worst case scenario for the industry, this would trigger a €376 million loss in revenue each year, the impact assessment said.

But a 2 percent reduction in tobacco use would correspond to gains to society — through health cost savings and consumer spending on other goods — that, the Commission assessment said, could be worth a €10 billion boost to Europe each year.