In the case of ‘A.C. Smits-Koolhoven against Staatssecretaris van Financiën’, the Supreme Court of Netherlands asked if herbal cigarettes are to be considered and defined as tobacco products and thereof submitted to the same rules.
The Supreme Court of Netherlands refers particularly to the Council Directive 95/59/EC on taxes other than turnover taxes which affect the consumption of manufactured tobacco.
“Do herbal cigarettes which it is established do not contain any substances having a medicinal effect, but which, with the approval of the Netherlands Council for the Monitoring of Medicinal Product Advertising/Council for the Monitoring of Health Product Advertising, are sold as "Medicinal herbal cigarettes" as an aid in giving up smoking, come under the exemption which Article 7(2) of Council Directive 95/59/EC provides for products which are used exclusively for medical purposes?”
Judgment of the court
The European Court of Justice ruling of the 30 March 2006 defines that herbal cigarettes cannot be considered as being used for medical purposes on the ground that they do not contain scientifically recognised medical preventative or curative medical effects. Besides, the ruling notes that marketing the product as having curative or preventive properties shall not be considered as sufficient unless it is supported by objective characteristics.
Therefore, herbal cigarettes must not be exempted from the Directive 95/59/EC on taxes that affect the consumption of manufactured tobacco.
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