The NNA legal case is the first time that a ‘right to health’ argument has been used to challenge a bad tobacco control law. We hope that this example might be a springboard for challenges in other countries.
NNA’s case to the European Court of Justice is based on EU law and the EU Charter of Fundamental Rights (CFR) . Our argument is that the ban on snus is disproportionate, and that it is contrary to the human right to health. Given the evidence that snus is substantially safer than smoking cigarettes, and that it protects against smoking, it is both unethical and contrary to EU law to deny access to this product.
NNA supports the idea of ‘tobacco harm reduction’ as it is often formulated, in offering smokers and would-be smokers a low risk alternative to smoking. It is as an approach that is preferable to an abstinence only strategy, which is in effect a ‘quit or die’ approach.
NNA also supports the idea that many people like using nicotine and thus – especially if lower risk forms of nicotine are available - there must be major limitations on the ability of the state to interfere with that choice. Tobacco harm reduction recognises that many people find the use of nicotine pleasurable. This is reflected in our arguments that the ban on snus is contrary to the principles of autonomy and choice that flow from Articles 1 and 7 of the Charter of Fundamental Rights of the European Union (CFR).
Rights to health
Our thinking is as follows.
European states are obliged to further the health of their citizens. The preamble to the European Social Charter  states that: ’Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’ and Article 11 requires Parties to take measures to prevent disease and to encourage individual responsibility in matters of health.
Moreover, all EU law must take into account ‘health protection’. Facilitating a high level of health protection is required under Title XIV of the Treaty of Lisbon that ‘A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’. A high level of health protection is relevant to all EU legislation including the Tobacco Products Directive. We have argued in our submission to the High Court and the European Court of Justice that health protection includes not only protection from health threats but also includes enabling people to make choices that help them avoid ill-health.
We thus base our argument on an interpretation of Article 35 of the CFR that a high level of health protection must allow access to snus.
A similar argument may be made on the basis of other international treaty obligations.
The relevant obligation is Article 12 of the International Covenant on Economic, Social and Cultural Rights , which has been ratified by 165 countries including all EU states. Article 12 recognizes: ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ and that States Parties must take steps regarding ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases.’ This has been interpreted by the UN Special Rapporteur on the Right to Health to include access to harm reduction resources for people who use drugs . We similarly argue that Article 12 includes access to tobacco harm reduction resources, ie safer nicotine products.
Tobacco harm reduction is consistent with obligations in the international treaty on tobacco control. All European Union states are signatories to the Framework Convention on Tobacco Control (FCTC), the international health treaty that aims to reduce the use of tobacco . The preamble to the FCTC notes obligations (as mentioned above) under the Article 12 of the International Covenant on Economic, Social and Cultural Rights. Moreover Article 1d of the FCTC specifically refers to harm reduction as one of the defining strategies of tobacco control, which is: ‘a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke’.
As mentioned above the European Social Charter requires states to encourage individual responsibility in matters of health. This view links to a basic principle of public health, which is one of creating the conditions in which people can lead healthier lives. In particular, as stated in the constitution of the World Health Organisation , that: ‘Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people.’  Empowering individuals and communities to take control of their health is a fundamental principle of public health, as set out in the Ottawa Charter on Health Promotion .
Tobacco harm reduction is consistent with the broad public health aim of enabling people to take action to reduce risks to their health. They cannot do that unless they have access to the resources that help them do this. That is why a ban on snus is inconsistent with helping people to lead healthier lives. Snus has to be legalised because snus saves lives.
Chair, New Nicotine Alliance
 Charter of Fundamental Rights of the European Union (2000/C 364/01)
 European Social Charter https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007cf93
 Open Letter by the Special Rapporteur on the right of everyone to the highest attainable standard of mental and physical health, Dainius Pūras, in the context of the preparations for the UN General Assembly Special Session on the Drug Problem (UNGASS), which will take place in New York in April 2016. http://www.ohchr.org/Documents/Issues/Health/SRLetterUNGASS7Dec2015.pdf
 Framework Convention on Tobacco Control http://www.who.int/fctc/text_download/en/
 Constitution of the World Health Organisation http://www.who.int/governance/eb/who_constitution_en.pdf
 Ottawa Charter on Health Promotion. World Health Organization 1986. http://www.who.int/healthpromotion/conferences/previous/ottawa/en/
More from the NNA on snus: