Speaking at The Grocer's Top 50 Annual Lunch, held this week at Claridges in London, Amal Pramanik, UK general manager for Imperial Tobacco, revealed legal action was "under serious consideration".
"We are taking advice right now, although no action has been taken yet," he said. "Legal action is always the last resort. We as a company do not want children to smoke and supported the government's proposal to stop underage access to tobacco through the introduction of electronic ID cards, token mechanisms and remote control technology. It was a matter of great regret that these proposals were disregarded."
The manufacturer's vending machines subsidiary Sinclair Collis revealed two weeks ago it was seeking a judicial review into the legality of banning tobacco vending machines from October next year.
Pramanik also revealed that since a display ban came into force in Ireland in July last year, there had been no reduction in smoking incidences. However, the illicit tobacco trade had increased, with illicit tobacco openly for sale.
"I visited Ireland at the end of January and witnessed the problems first hand," he said. "Leaflets are being put through mailboxes and front doors, displaying lists of brands and prices; people are receiving texts with brands and prices; there are ads on community notice boards in foreign languages; and cab drivers are openly offering cigarettes for sale. These are a big threat to the industry and all who deal with it."
If Imperial does not initiate the judicial review, it is understood that one of the other leading tobacco manufacturers will. One source close to the situation told The Grocer the major suppliers were still discussing between them which one will actually put their name to the challenge.
This is clearly the last resort for the manufacturers, who initially wanted to stay out of the fight against the ban, believing retailer and wholesaler views would hold more sway in government. The challenge will be based in restriction of trade arguments but it is understood the courts would not have the power to strike down the Health Act.
However, the courts could ask the government to look again at the proposals. As this would all take place after the general election it would fall on the next government to decide, offering the industry hope. But opponents of the ban believe it will come into force next year whichever party gets into power.
The Tories have previously stated concerns over the ban's impact on retailers but, one campaigner said, should they get into power, reversing the current government's plans was unlikely to be a priority.