EUPHA has repeatedly highlighted the continuing threat posed by the tobacco industry to the health of Europeans. Now, governments across Europe and beyond are showing increasing interest in bold “tobacco endgame” measures designed to bring about a decisive reduction in tobacco use. These policies go beyond incremental regulation and instead aim to phase out tobacco consumption altogether, particularly by preventing uptake among future generations. The United Kingdom has recently taken a major step in this direction by introducing legislation to create a “smoke-free generation,” building on earlier innovations in New Zealand. However, in New Zealand, these pioneering measures were subsequently rescinded following a change of government involving coalition partners with well-documented links to the tobacco industry.
Elsewhere in Europe, progress towards similar measures has been hesitant. A major factor has been claims advanced by the tobacco industry and its lobbyists that ambitious endgame policies would be incompatible with European Union law, particularly rules governing the internal market and the free movement of goods. These claims have been used, for example, to argue that the post-Brexit Windsor Framework, covering the status of Northern Ireland, would prevent the UK legislation from being extended there. These arguments have contributed to uncertainty among policymakers and, in some cases, have discouraged governments from pursuing innovative approaches to tobacco control.
A new legal analysis published in the journal Health Economics, Policy and Law directly addresses these claims and finds them fundamentally flawed. It shows that assertions of illegality rest on selective and overly narrow interpretations of EU law that fail to reflect its full development and underlying principles.
In simple terms, EU internal market law is often portrayed as prioritising trade over health, with public health measures treated as exceptions that must be narrowly justified. However, this portrayal is outdated. The new paper demonstrates that, over several decades, EU law has evolved to embed public health protection at its core. The Treaties themselves require a high level of human health protection to be ensured in all EU policies, including those relating to the internal market.
This has practical consequences. While EU law does limit unjustified trade barriers, it also explicitly allows governments to restrict the sale of products when necessary to protect public health. Courts have consistently recognised that tobacco is a uniquely harmful product and that strong regulatory action is justified. In fact, the legal framework gives Member States considerable discretion to decide how best to protect their populations, provided measures are evidence-based and proportionate.
Importantly, the analysis clarifies that measures such as a “smoke-free generation” policy regulate who can buy tobacco, rather than banning the product itself from the market. As such, they can fall outside some of the strictest internal market rules. Even where they do affect trade, they can still be legally justified on public health grounds.
The paper also highlights that EU law does not require governments to wait for perfect evidence before acting. The precautionary principle allows policymakers to take preventive measures when there is strong evidence of harm, even if some uncertainty remains. Given the overwhelming scientific consensus on the harms of tobacco and its status as a leading cause of preventable death, this principle strongly supports decisive action.
In addition, the EU’s own tobacco legislation, including the Tobacco Products Directive, has a dual purpose: to support the functioning of the internal market while ensuring a high level of health protection. This reflects a broader legal reality: the EU is not simply a free-trade project but a health-protective regulatory system in which economic and public health objectives are integrated.
Taken together, these findings show that EU law leaves substantial space for governments to adopt ambitious tobacco control policies, including endgame strategies. A full reading of EU legal principles and case law does not support claims that such measures are inherently unlawful.
Given the enormous and continuing burden of tobacco-related diseases across Europe, on individuals, health systems, and economies, EUPHA believes that governments cannot afford to delay. Incremental approaches have delivered important gains, but they are no longer sufficient to meet the scale of the challenge.
EUPHA therefore calls on the governments of all EU Member States to move forward with the design and implementation of evidence-based tobacco endgame measures, including the creation of smoke-free generations. European law should be seen not as a barrier, but as a framework that supports and enables ambitious action to protect population health.
