Report 2011 - EFTA Court

health. With regards to the second issue, the Plaintiff observes
that the parties disagree, in that the Plaintiff considers that the
display of tobacco products is not a risk to public health unless it
increases tobacco consumption. Therefore, in its view, the relevant
issue in the present case is, first, whether a ban on the display of
tobacco at point of sale will reduce consumption, and, second,
if so, whether such an effect can be achieved by other less
restrictive means.
Criteria for suitability
36. The Plaintiff contends that the visual display ban is unsuitable
for reducing tobacco consumption. According to the contested
measure, tobacco products must be blocked from view at points
of sale. That will, however, not affect their availability, as they will
be stored in closed cabinets labelled “tobacco”. Therefore, in the
Plaintiff’s view, the measure is only an additional inconvenience
that will have only marginal effect on consumption. 23 As positive
effects of the display ban cannot be assumed, the Defendant
should be obliged to present evidence showing that the display
of tobacco products actually creates health risks and that the
elimination of the visible display of tobacco reduces such risks.
insufficiency of evidence adduced by the state
37. The Plaintiff argues that the Defendant has not produced
sufficient evidence in support of the visual display ban. Before
introducing the ban, the Defendant requested a government
agency to prepare a report on the existing literature in favour of
a display ban – a request that resulted in a report that provided
little support for display bans. Therefore, the Defendant has not
fulfilled the requirement to produce evidence supporting the
visual display ban.
38. in contrast, the Plaintiff submits that there is no evidentiary basis
to assume that the visual display ban on tobacco products at
23 Reference is made to Rosengren, cited above, and Case E-9/00 ESA v Norway [2002] EFTA
Ct. Rep., p. 74, paragraphs 56-57.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 418 374