Two tobacco companies have received leave from the Irish High Court to challenge a new EU directive banning the use of flavored heated tobacco products in e-cigarettes.

Ireland has until July next year to transition to new EU law. But PJ Carroll and Co Ltd, the country's oldest tobacco manufacturer, and Nicoventures Trading Ltd, a British marketing and sales company, claimed the EU directive was invalid.

They are challenging the Irish health and justice ministers.

Flavored heated tobacco products were not banned under previous rules, but the European Commission has amended this, giving member states until July 23 to reverse the ban.

The use of these products involves the smoker consuming a substance that looks like a cigarette but contains half the tobacco of a conventional cigarette.

They are smoked using a battery-powered electronic device that heats the cigarette -- rather than burning it -- and produces a nicotine-containing aerosol that users inhale.

They come in flavors such as bubblegum, chocolate and cotton candy, which critics say help appeal to younger users, but supporters say it helps those trying to quit smoking.

In 2021, PJ Carroll, which currently has a 10% share of the Irish e-cigarette market, said it had begun taking steps to commercialize heated tobacco products, including flavored products, in Ireland.

However, the company said the EU ban on these products had severely curtailed its ability to take full advantage of the unique opportunity to be the first company to launch a heated tobacco product on the Irish market for adult smokers who would otherwise continue to smoke.

Simon Carroll, director and head of trading at PJ Carroll, said in an affidavit that the ban would also undermine the significant investment profile of the British American Tobacco (BAT) group, of which the Irish and British companies belong, in developing less risky products (relative to cigarettes) , to cater to the preferences of Irish adult smokers who would otherwise continue to smoke”.

The ban also has major implications for public health policy and the implementation of anti-smoking campaigns because there are acceptable alternatives to traditional cigarettes, he said.

PJ Carroll and Nicoventures wrote to the Minister of Health and the Chief State Counsel and was told that any court challenge in Ireland would be premature as a number of applicants including PJ Carroll and Nicoventures had launched direct EU Challenging the Common Court, part of the Court of Justice of the European Union (CJEU).

With the Health Minister confirming that Ireland will convert the directive next July, PJ Carroll and Nicoventures filed a party-only application before Judge Charles Meenan seeking to challenge the directive and the intent to transpose it into Irish law.

PJ Carroll and Margaret Gray SC of Nicoventures said they believed the European Commission had unlawfully extended the directive to cover her client's products and had failed to provide proper reasoning in doing so.

The companies claim, among other things, that the new directive is invalid because it constitutes an unlawful exercise of authorization under the previous Tobacco Products Directive (TPD).

They also said the European Commission's approach to assessing a material change in circumstances (when a new ban was introduced) was outside the TPD's mandate.

The court also heard that the companies will ask the matter to be referred to the EU Court of Justice for a preliminary ruling.

The judge said he was satisfied with granting the licence, but said he believed the reference to the CJEU had to be dealt with first before anything else.

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