The woman and her family, who say the husband Franz Wegerer never touched a cigarette in his life, are now consulting a lawyer, according to a report on the ORF’s ZiB programme.
The EU commission denies, however, that the man is picture is the woman’s husband and say it is in fact a German who gave his permission for the picture to be used.
A spokesperson told the ZiB programme that they are sorry but the two men must just look alike.
The AKH hospital in Vienna, where Wegerer was treated before he passed away two years ago, have also said the photo was not taken there.
The woman from Lower Austria has said she is certain, however, that it is her husband and a petition against the EU for using the image has been signed by 130 of his friends and acquaintances.
The EU law on publishing shock images showing the damage caused by smoking on to cigarette packages was introduced two weeks ago.
The rules state that pictorial health warnings must cover 65% of the front and back of every packet of cigarettes. Warnings must also appear on the top of packets.
The European Commission have described the new regulations as “a true triumph and a lasting legacy for public health in the EU”.
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