Challenge to EU Tobacco Law Backed by British Health Secretary

Challenge to EU Tobacco Law Backed by British Health Secretary

The EU’s Tobacco Products Directive (TPD) is set to be challenged in court by an e-cigarette manufacturer, in a move that has the surprise backing of British Secretary of State for Heath Jeremy Hunt. This appears to be something of a U-turn for Hunt, who has previously written to MEPs urging even more restrictive legislation on e-cigarettes.

The challenge is being brought by Totally Wicked, the UK’s leading manufacturer of e-cigarettes, on the grounds that Article 20 of the directive is a breach of EU law on the free movement of goods and provision of services in the EU, EurActiv has reported.

In a statement on it’s website, Totally Wicked said “Should the TPD be implemented as it currently stands, not only will the e cigarettes market be radically altered with many current e cigarette devices being removed from the market, Totally Wicked believes that Article 20 represents a disproportionate impediment to the free movement of goods and the free provision of services, places electronic cigarettes at an unjustified competitive disadvantage to tobacco products, fails to comply with the general EU principle of equality, and breaches the fundamental rights of electronic cigarette manufacturers.”

Article 20 of the Tobacco Products Directive, which will come into force in 2016, deals with electronic cigarettes – even though they don’t actually contain any tobacco. The stipulations are draconian, including that member states must be notified of all products coming onto the market at least six months before they are released, and that the notification must include all ingredients, a toxicology report, a description of components, nicotine dosing information, a description of the production process, and a guarantee that the manufacturer take personal responsibility for the safety of the product, and more; all e-cigarettes and refills will have to carry a warning that nicotine is addictive, and possible side effects will have to be included in an information leaflet; advertising won’t be allowed on tv or radio; and vast amounts of data on the industry and on possible negative effects of the products will have to be recorded and stored.

In order for the challenge to be heard in the Court of Justice of the EU (CJEU), permission had to be obtained by issuing court proceedings against the Secretary of State for Health in the UK’s Administrative Court, asking that  court to refer the lawfulness of Article 20 for a “preliminary ruling” by the (CJEU).

After looking at the claim and supporting evidence, Hunt accepted that it would be appropriate for the challenge by Totally Wicked to be referred to the CJEU for a ruling.

Last November, Trending Central reported that Hunt had sent letters to each of the British MEPs in the Parliament urging them to classify e-cigarettes as a pharmaceutical product. He wrote “The UK Government considers the revised Tobacco Products Directive to be crucial to more effective tobacco control across the EU… The UK Government supports the regulation of nicotine-containing products, including e-cigarettes, as medicines”.

His own party colleague Martin Callanan, then leader of the Conservative delegation in Brussels, was at the forefront of moves to defeat such an amendment. The move was also opposed by Ukip and the Liberal Democrats, both of whom have a presence in Hunt’s constituency.

Moreover, both Hunt’s own deputy at the Department of Health, Norman Lamb, and health campaigners opposed the move, prompting Trending Central to ask “So what’s the explanation for Hunt’s stance? Anyone?”

Although welcome, the same could well be asked of this decision.