European policymakers’ attention has understandably been monopolised by the coronavirus crisis. Brussels is nevertheless trying to keep its finger on the myriad other issues affecting the bloc. On March 24th, for example, ministers cheered the green light given to accession talks with Albania and North Macedonia as an encouraging sign that the European institutions are still able to move forward on important policy matters during the pandemic.
This holds true even in the public health sector. From February 19th to 22nd, the 8th European Conference on Tobacco and Health (ECToH) took place in Berlin. The event gathered European anti-tobacco associations, health professionals as well as representatives from the European Commission and pharmaceutical laboratories under the umbrella of the European Cancer League, led by famous anti-tobacco czar Luk Joossens.
This collection of allies in the fight against tobacco use—the most significant cause of premature death in the EU—used the occasion to launch a new Tobacco Control Scale which quantifies the tobacco control efforts of some 36 European countries.
The ranking system features the addition of a new criteria by which European tobacco control policies are judged: their efforts to tackle the illicit tobacco trade, which costs the EU some €10 billion a year and undermines its public health initiatives.
While many European countries scored points in this category thanks to their ratification of the WHO Protocol to Eliminate Illicit Trade in Tobacco Products, they fell short in other areas. For example, none received credit for having implemented a system to track and trace tobacco products which follows the guidelines set out in the WHO Protocol. The EU’s track-and-trace system is thus not considered compliant with international public health regulation, a situation which spurred MEPs to prepare a modification of the Tobacco Products Directive.
Abiding by public health priorities or industrial interests?
The principal flaw in the European bloc’s track-and-trace system is that it’s not adequately safeguarded against the tobacco industry’s perpetual attempts to influence public policy.
Europe has more broadly failed to shield its public health decision-making from Big Tobacco’s attempts to promote its own interests. ECToH host country Germany’s long history of tight ties to the tobacco industry partly explains its position at the very bottom of the European Tobacco Control scale.
Though the conference was held in Berlin, where the tobacco industry still looms large—one public health expert dubbed Germany a “developing country” when it comes to tobacco regulation—NGO representatives in attendance widely criticized the lag with which Germany is applying effective tobacco control policies. Some of Berlin’s missteps were singled out for particular criticism; stunningly, Germany is the only country in the EU which still allows tobacco advertising on billboards and in cinemas.
The consistent delays with which Germany has implemented tobacco control measures—it was also one of the last EU countries to adopt a smoking ban in restaurants—have made it clear that European Commission president Ursula Von der Leyen’s native country is far from spearheading action on Europe’s leading public health concerns.
Tobacco spies in disguise
The lengths to which the tobacco industry is willing to go to subvert Europe’s public health agenda were on full display at the recent gathering in Berlin. Indeed, the conference’s organiser interrupted presentations from NGO representatives to denounce the presence of envoys from the tobacco industry in the plenary room. These industry representatives had apparently managed to get inside the conference venue under the umbrella of the so-called Foundation for a Smoke Free World.
The name of this organisation is carefully crafted in order to make it sound like an anti-tobacco crusader. In reality, however, the Foundation for a Smoke Free World has been unmasked as a front group for tobacco industry giant Philip Morris. The foundation, which the WHO has warned governments not to partner with, seeks to influence regulation in the tobacco industry’s interest. It focuses on two main objectives: gathering intelligence on tobacco control efforts and building a market for new tobacco products, such as electronic cigarettes and heated tobacco devices.
The Foundation for a Smoke Free World contests the accusations.
The alignment of new tobacco products’ regulation to traditional ones
The global tobacco industry was counting on these next-generation products, such as Philip Morris’s IQOS or British American Tobacco’s Glo, to expand the pool of nicotine consumers as public health initiatives are finally bearing fruit in the form of falling smoking rates. European authorities had initially seemed receptive to the industry’s arguments. Public Health England even rolled out campaigns—newly revealed to have been produced in conjunction with a lobby group associated with Philip Morris—arguing that vaping was “95% less harmful than smoking”.
Following a spate of serious vaping-associated lung injuries, which began in the United States in summer 2019, however, the public health community has increasingly become convinced that these novel tobacco products require serious handling.
The WHO has warned that these products increase the risk of heart and lung conditions, and has recommended that they be regulated in the same way as traditional cigarettes. Doing so would bear important consequences in terms of how these products are taxed, what sort of health warnings they should display, and how they are tracked and traced throughout their supply chains. Whether the EU will follow through on ratcheting up oversight on e-cigarettes remains to be seen. The bloc’s stumbles on measures such as track-and-trace, in any event, suggest a bumpy road ahead.
The way forward after Berlin?
The recent ECToH conference closed its doors with the unanimous adoption of a declaration setting the stage for the future of European anti-tobacco policy. Delegates notably committed to align all new regulation of tobacco products (electronic cigarettes as well as heated tobacco) with regulations on traditional tobacco products, with explicit references to excise taxes, health warnings, and advertising restrictions.
Amidst the spread of the coronavirus pandemic and early data indicating that both tobacco smoke (from traditional or heated tobacco productions) and e-cigarettes makes people more likely to suffer severe complications from COVID-19, the urgency for such reinforced oversight couldn’t be clearer.
Why there should be no harmonized excise duties on nicotine-free e-cigarettes in the EU
Since 2016, the European Commission has been working on a revision to the Tobacco Excise Directive, the ‘TED’, the legal framework ensuring excise duties are applied in the same way, and to the same products, throughout the Single Market, writes Donato Raponi, honorary professor of European Tax Law, former head of excise duties unit, consultant in tax law.
Member states, through the Council of the EU, recently asked for a range of new products to be contained within the TED. It includes e-cigarettes which contain no tobacco but do contain nicotine. However, there are also e-cigarettes with no nicotine in them and their fate is unclear.
But why should a directive that has, until now, been only for tobacco be extended to include products which contain neither tobacco nor nicotine? Isn’t this a step too far?
The EU's constitution, enshrined in the Treaties of the European Union, is very clear that before proposing any legislative initiative, some key questions must be addressed.
The EU rules1 explain very clearly that products should be included in the TED only to ensure the proper functioning of the internal market and to avoid distortions of competition.
It is by no means clear that a harmonized excise treatment of nicotine-free products, such as nicotine-free e-liquids, across Europe will help to alleviate any such distortions.
There is very limited evidence on the extent to which consumers view e-liquids without nicotine as a viable substitute for e-liquids with nicotine in them. The European Commission’s recently published Eurobarometer study on the attitudes of Europeans towards tobacco and electronic cigarettes has nothing to say on this question. And the evidence from the available market research experts is limited at best.
It is, consequently, virtually impossible to know how many consumers – if, indeed, any at all – would switch to e-liquids without nicotine if only nicotine containing e-liquids were subject to an EU level excise duty.
What we do know, however, is that almost everybody who consumes tobacco products already covered by the TED does not view nicotine-free e-cigarettes as viable substitutes for them. And that is why most cigarette smokers who switch to alternative products look for other products containing nicotine.
There may be parallels between this and the excise treatment of alcohol-free beer, the latter not being, covered by the EU Alcohol Directive. Although it is designed to be an alternative product, this does not mean that alcohol-free beer is viewed as a strong substitute by most of the people who drink alcoholic beer. Member states have not applied a harmonised excise on alcohol-free beer and so far, the effective functioning of the Single Market has not been damaged.
Even if the absence of a harmonized excise on nicotine-free e-cigarettes were to distort competition, it must be material enough to justify any EU level intervention. Case law from the CJEU confirms how distortions of competition must be ‘appreciable’ to justify any changes to EU legislation.
Simply put, if there is only limited impact, there is no rationale for EU intervention.
The market for e-cigarettes without nicotine is currently very small. Euromonitor data shows that nicotine-free e-liquids for open systems represented only 0.15% of all EU tobacco and nicotine product sales in 2019. Eurobarometer reveals that while nearly half of Europe’s e-cigarette consumers use e-cigarettes with nicotine every day, only 10% of them use e-cigarettes without nicotine daily.
With no clear evidence of any material competition between nicotine-free e-cigarettes and the products already covered in the TED, together with the low sales of nicotine-free products, the test of there being an ‘appreciable’ distortion of competition is not – at least at the moment – obviously being met.
Even if there is no case for new EU-level legislative measures for nicotine free e-cigarettes, this does not stop individual member states from levying a national excise on such products. This has already been the practice across member states so far.
Germany does not, for instance, need an EU Directive to levy its domestic excise on coffee, while France, Hungary, Ireland and Portugal levy a tax on sugary drinks without any EU Soda Excise Directive in place.
The case of non-nicotine e-liquids is no different.
There is nothing to stop any member state from taxing non-nicotine e-liquids at its own pace without the unnecessary intervention of the EU.
1 Article 113 of the Treaty on the Functioning of the European Union
Tobacco Excise Directive consultation: 83% of submissions warning about higher taxes on vaping
The World Vapers’ Alliance strongly urges policymakers to stay away from equating smoking tobacco and vaping, especially when it comes to taxation. This comes off the heels of a recently ended consultation on the update of the Tobacco Excise Directive, which specified the European Commission’s intention to tax vaping products similarly to how cigarettes are taxed.
Commenting on the consultation, WVA Director Michael Landl said: “Making vaping less appealing to smokers by higher prices will discourage current smokers from switching to less harmful alternatives. This is certainly not going to be of any public health benefit. Additionally, high taxes on vaping products are particularly harmful to the lower income brackets of the population, which make up the largest proportion of current smokers.”
The consultation ended on 5 January and out of 134 responses from citizens, associations and industry, 113, or 84% referenced the positive impacts of vaping and the serious negative impact that taxing it the same as cigarettes would have.
Michael Landl added: “I am delighted by the overwhelming number of responses in favour of vaping to this consultation. It shows that many people know the potential for harm reduction of vaping. . What policymakers need now to understand is that tax hikes on vaping will lead to people switching back to smoking, an outcome absolutely nobody wishes for.”
Therefore, for the WVA it is important that non-combustible products are not regulated and taxed the same way combustible tobacco is. Lawmakers need to follow the scientific evidence and abstain from tighter regulation and higher taxation of vaping products.
“If we want to reduce smoking induced burdens on public health, access and affordability to vaping products need to be guaranteed,” Landl concluded.
Europe’s Beating Cancer Plan: Time to back vaping and beat cancer
Europe’s Beating Cancer Plan needs bold action on tobacco, and MEPs must Back Vaping to Beat Cancer, according to the World Vapers’ Alliance. The Special Committee on Beating Cancer (BECA) today identified that ‘tobacco use, in particular cigarette smoking is the main risk factor for cancer death in Europe’.
Commenting on the new document, World Vapers’ Alliance (WVA) Director Michael Landl said: “To succeed in its mission, the BECA committee and the European Parliament must be brave enough to endorse new approaches. Vapers across Europe are calling on policymakers to recognise the benefits of vaping, and its potential to massively reduce the harm of smoking. Policymakers cannot ignore the facts any longer.
"We appreciate the commitment from MEP Mrs. Véronique Trillet-Lenoir and the entire Special Committee on Beating Cancer to fight smoking-related cancer. The Europe Beating Cancer Plan needs to endorse vaping as an effective tool to help smokers move to a safer alternative. That’ Back vaping, beat cancer!”
The new working document presented in today’s Special Committee on Beating Cancer (BECA) by the Committee's rapporteur MEP Véronique Trillet-Lenoir states that: “Tobacco use, in particular cigarette smoking, is the main risk factor for cancer death in Europe. Various measures to fight against smoking appear heterogeneous and inconsistently implemented. Overall, the WHO Europe region is the global area with the highest tobacco consumption, with major discrepancies between Member States, as the proportion of smokers varies by a factor of up to 5 from one country to another.”
The European Parliament’s Special Committee on Beating Cancer (BECA) met for the second time today for an exchange of views with Health Commissioner Stella Kyriakides.
As part of the Committee’s work, a draft WORKING DOCUMENT on Inputs of the Special Committee on Beating Cancer (BECA) to influence the future Europe’s Beating Cancer Plan was released by the Committee and its rapporteur Veronique Trillet-Lenoir. It identifies that tobacco is the main risk factor for cancer death in Europe. You can find the document here.
The World Vapers’ Alliance (WVA) amplifies the voice of vapers around the world and empowers them to make a difference for their communities. Our members are vapers associations as well as individual vapers from all over the world. More information available here.
Michael Landl is the director of the World Vapers’ Alliance. He is from Austria and based in Vienna. He is an experienced policy professional and passionate vaper. He studied at the University of St. Gallen and worked for several public policy outlets and as well in the German Parliament.
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