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UK electronic cigarette company formally challenges Tobacco Products Directive

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electronic-cigaretteTotally Wicked, the UK’s leading electronic cigarette manufacturer has launched a legal challenge to the European Union’s recently adopted Tobacco Products Directive on the grounds that Article 20 of the Directive breaches established EU law.

Specifically, 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.

Totally Wicked has obtained permission from the UK's Administrative Court to bring a judicial review action challenging the above, following an Order made by Mr Justice Supperstone on 31July 2014.  Permission was obtained after issuing court proceedings against the Secretary of State for Health, which asked the UK court to refer the lawfulness of Article 20 for a “preliminary ruling” by the Court of Justice of the EU (CJEU) in Luxembourg.

Significantly, having considered Totally Wicked's claim and supporting evidence, the Secretary of State for Health has accepted that it would be appropriate for the issues raised by Totally Wicked to be referred to the CJEU for a ruling. Whilst maintaining that Article 20 is lawful, the secretary of state has not objected to Totally Wicked pursuing a claim and has consented to a reference to CJEU being made.

A hearing will now take place in London on the 6th of October 2014, where an Administrative Court judge will determine whether a reference should be made and if so, the terms of the questions being referred. Totally Wicked's lawyers are liaising with the Treasury Solicitor, acting for the Secretary of State, to try and agree draft terms of reference with a view to this being approved by the court in October.

The parties, and Mr Justice Supperstone, have agreed that the matter should be dealt with urgently given the proposed implementation date of May 2016.

If the matter is referred to CJEU, it is expected a hearing to take place in 2015 to determine whether Article 20 breaches EU law.

Totally Wicked Managing Director Fraser Cropper said: "Many of the regulations contained within Article 20 of the Tobacco Products Directive would result is electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products.  Not only is Article 20 therefore disproportionate, we believe it is also contrary to established EU law.  It is for these reasons that we have taken the significant step to challenge formally the Directive in the courts and we are delighted with the progress made to date.

"For nearly 30 million people in the EU, electronic cigarettes have and continue to provide a viable alternative to smoking tobacco cigarettes.  They have enabled those using them to leave smoking behind, either on a full or part-time basis.  Electronic cigarettes have the potential to be one of the great transformational products of the 21st century.  This Directive, if implemented in its current form, will severely hamper this potential and force many people back to smoking tobacco cigarettes.

"For the sake of electronic cigarette users and potential users, it is vital that our industry is allowed to mature within a proportionate regulatory framework, which supports appropriate controls and safety requirements, and necessary social responsibility and continues to provide consumer choice to maximise the enormous potential of these products.  Article 20 of this Directive patently will not deliver this environment.”

Totally Wicked is represented by Addleshaw Goddard LLP and Kieron Beal QC of Blackstone Chambers.

In December 2012 the European Commission brought forward proposals to amend the Tobacco Products Directive (TPD).  These proposals sought to bring electronic cigarettes within the scope of the Directive for the first time.  Final agreement on the amended TPD was reached between the European Commission, Parliament and Council in December 2013.  Member states have until May 2016 to implement the TPD.

Article 20 of the TPD deals specifically with the regulation of electronic cigarettes.

To read the TPD in full click here.

Cigarettes

Backing #Vaping to beat #Cancer

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The upcoming European Union's Beating Cancer Plan is a historic chance to improve public health in Europe. Cancer is the second leading cause of death in the EU. 1.3 million people die from cancer each year in the EU and 700,000 of those deaths are associated with smoking. Despite these terrifying numbers, approximately 140 million Europeans are still smoking. The European Union is right to tackle the disease with a holistic approach, writes Michael Landl (pictured).

A comprehensive approach needs to include prevention and harm reduction. While it is important that lawmakers do everything, they can to prevent people from starting smoking, it is equally important to support current smokers in their quest to quit. Including e-cigarettes (vaping) in the EU Beating Cancer Plan will help millions of European who are struggling to quit smoking and consequently prevent many deaths associated with cancer from smoking.

E-cigarettes contain liquid which is heated and turned into vapour. There is no tobacco nor tar in e-cigarettes and many of the toxins in cigarettes are not present in e-cigarettes. In 2015, Public Health England declared that vaping is 95% less harmful than smoking and began recommending that current smokers switch to electronic cigarettes. Countries like Canada and New Zealand followed their lead and have helped save millions of lives. In fact, these policies promoting vaping arguably achieved more in a short period of time than what lawmakers tried to accomplish for years: fewer people smoking cigarettes. 

We know that abstinence is not as effective as alternatives, such as vaping. According to a 2019 study from Queen Mary University London of 100 smokers trying to quit cold turkey, only three to five succeed - while according to the same study, vaping is even more effective for smoking cessation than nicotine-replacement therapy, like patches or gums.

Despite the weight of evidence, a number of governments have considered new restrictions on vaping, rather than make it more accessible. While often well intentioned most newly proposed regulations, such as flavour liquid bans or higher taxes, would disproportionately harm smokers who are trying to quit. This runs directly against the goal of beating cancer.

The EU Beating Cancer Plan is a massive opportunity to ramp up the fight against smoking. Lawmakers should include vaping in the plan as a harm reduction tool to prevent cancer. The European Union's institutions and governments should follow the lead of countries like the United Kingdom, Canada and New Zealand and encourage the use of vaping as a less harmful alternative for adult smokers.

If the European Union is serious about improving health, we must back vaping to beat cancer.

About the World Vapers' Alliance

The World Vapers’ Alliance (WVA) amplifies the voice of passionate vapers around the world and empowers them to make a difference for their communities. The alliance partners with 19 groups representing vapers worldwide and represents individual vapers. Michael Landl, the WVA’s director, is an experienced policy professional and a passionate vaper.

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Does #COVID-19 represent a mortal threat to the tobacco sector?

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The SARS-CoV-2 pandemic has spelled bad news on the whole for smokers and the industry which supplies them. The most recent developments include the debunking of research that suggests smokers are supposedly less susceptible to the virus – accompanied by revelations that in fact the habit exacerbates the effects of the disease – as well as a public smoking ban in Galicia that has now spread across the whole of Spain.

With over one million smokers in the UK having reportedly kicked the habit since the onset of COVID-19, how great a threat does the current crisis represent to the industry which profits from their addiction? Public awareness of the dangers of smoking have never been higher, meaning the time is ripe for authorities in Europe and elsewhere to introduce measures aimed at curbing the deadly practice – but they must be wary of interference and prevarication from the ever-tenacious tobacco industry itself.

Big Tobacco under threat

At the outset of the coronavirus outbreak, smokers may have been initially cheered to hear the results of a study from China, where they were disproportionately underrepresented among sufferers of Covid-19. Subsequent research has not brought nearly such positive news; more than one peer-reviewed paper has found smokers are roughly twice as likely to experience coronavirus symptoms as non-smokers. This aligns with other studies, which found that smokers with the virus were twice as likely to be hospitalized and 1.8 times more likely to die than their non-smoking counterparts.

The addiction isn’t just damaging to those holding the cigarette, either. With bar patrons urged to keep their voices down and even theme park goers warned against screaming for fear of transmitting the virus orally, the huge clouds of smoke emitted by tobacco enthusiasts could be an ambient epidemic waiting to happen. Aware of the danger, South Africa took immediate action to ban tobacco sales in late March, although it has since revisited those restrictions. More recently, the Spanish region of Galicia and the Canary Islands archipelago both announced public smoking would be prohibited, with the rest of the country considering following suit.

The pandemic hasn’t just prompted a response from lawmakers – smokers are also reconsidering their relationship with tobacco in light of the dangers posed by the highly contagious and deadly respiratory disease. In the UK, over a million smokers have quit in the last six months, with 41% of those claiming fears of coronavirus were their primary motivation for doing so. Meanwhile, the University College London found that more people have given up smoking in the year up to June 2020 than in any other 12-month window since records began over a decade ago.

Underhanded tactics at play

Never one to take such setbacks lying down, Big Tobacco has resorted to its tried and tested tactical playbook. Among other machinations, that playbook involves obfuscating and influencing the science by funding favorable studies on the subject of coronavirus and smoking, delaying anti-tobacco regulations and claiming the industry comprises an “essential business” to avoid lockdown measures in places as diverse as Italy, Pakistan and Brazil.

At the same time, major tobacco firms have been accused of crisis-washing. Philip Morris International (PMI) donated a reported $1 million to the Romanian Red Cross and 50 ventilators to a Greek hospital, as well as an estimated €350,000 to a Ukrainian charity, with other big players reportedly having done the same. Critics claim these apparently altruistic contributions are nothing more than opportunistic PR stunts which capitalize on a global tragedy to paint Big Tobacco in a positive light – something which the industry itself vehemently rejects.

Regardless of the intent behind the donations, there are heavy suspicions that they may have contravened the Framework Convention on Tobacco Control (FCTC) protocol, which specifically prohibits governments or government-owned bodies from taking funds from the tobacco industry. Unsurprisingly, this kind of chicanery is nothing new for Big Tobacco, who have been ploughing a similar furrow for decades. Unfortunately, it’s one that continues to yield advantages for those behind the yoke, despite efforts to curb their influence.

Ineptitude and inefficiency in the EU

EU policymakers have, disappointingly, demonstrated themselves to be particularly susceptible to the tobacco industry’s malignant influence. As detailed by the OCCRP, the EU has effectively handed over large parts of its track and trace (T&T) system for illicit tobacco to firms with close ties to the industry. The system, which the FCTC has highlighted as an integral step in clamping down on a black market that costs the bloc over €10 billion per annum in lost public revenue, is intended to monitor a packet’s progress at each stage of the supply chain via a unique identifier, thus eliminating any opportunity for wrongdoing.

A central element of any successful T&T system, as defined by the Illicit Trade Protocol (ITP), is its complete independence from the industry itself. However, the OCCRP investigation has uncovered how key firms developing T&T software and handling the process have ties to the tobacco industry, including seven out of eight of the companies tasked with storing the all-important cigarette data. Meanwhile, one of the main companies monitoring hundreds of supply lines into the EU – Inexto – appears to be at least partially funded by Big Tobacco, while the very software it uses to carry out its obligations was purchased from PMI themselves for a rumored fee of just one Swiss franc.

The whole process is so riddled with inefficiencies that nine months after its implementation, insiders have said they have no idea how effective it has been in clamping down on the illegal trade, while one official from the UK’s trading standards office has called it “completely useless”. Nonetheless, EU officials have travelled the world touting the benefits of their system and several nations have already bought into the myth, with Inexto winning contracts from Mexico, Pakistan, Russia, and governments in Western Africa to date. The Pakistani contract, at least, has since been invalidated by court order.

A vaccine for industry influence

At a time when the Covid-19 crisis has thrown health concerns into sharp relief, governments and health groups should be taking a page out of the obesity debate book and generating momentum towards cutting smoking rates in their territories. While that momentum does seem to be gaining ground, it sadly does not appear to have escaped the pervasive and pernicious influence of the industry itself, which undermines the entire process.

Big Tobacco’s stratagems are widely documented and well understood – but this knowledge does not seem to be capable of preventing their success all the same. In addition to a vaccine for this deadly new coronavirus, it seems immunity against industry intervention should also be on the EU’s priority list.

Continue Reading

Cigarettes

Does #COVID-19 represent a mortal threat to the #tobacco sector?

Published

on

The SARS-CoV-2 pandemic has spelled bad news on the whole for smokers and the industry which supplies them. The most recent developments include the debunking of research that suggests smokers are supposedly less susceptible to the virus – accompanied by revelations that in fact the habit exacerbates the effects of the disease – as well as a public smoking ban in Galicia that has now spread across the whole of Spain.

With over one million smokers in the UK having reportedly kicked the habit since the onset of COVID-19, how great a threat does the current crisis represent to the industry which profits from their addiction? Public awareness of the dangers of smoking have never been higher, meaning the time is ripe for authorities in Europe and elsewhere to introduce measures aimed at curbing the deadly practice – but they must be wary of interference and prevarication from the ever-tenacious tobacco industry itself.

'Big Tobacco' under threat

At the outset of the coronavirus outbreak, smokers may have been initially cheered to hear the results of a study from China, where they were disproportionately underrepresented among sufferers of Covid-19. Subsequent research has not brought nearly such positive news; more than one peer-reviewed paper has found smokers are roughly twice as likely to experience coronavirus symptoms as non-smokers. This aligns with other studies, which found that smokers with the virus were twice as likely to be hospitalized and 1.8 times more likely to die than their non-smoking counterparts.

The addiction isn’t just damaging to those holding the cigarette, either. With bar patrons urged to keep their voices down and even theme park goers warned against screaming for fear of transmitting the virus orally, the huge clouds of smoke emitted by tobacco enthusiasts could be an ambient epidemic waiting to happen. Aware of the danger, South Africa took immediate action to ban tobacco sales in late March, although it has since revisited those restrictions. More recently, the Spanish region of Galicia and the Canary Islands archipelago both announced public smoking would be prohibited, with the rest of the country considering following suit.

The pandemic hasn’t just prompted a response from lawmakers – smokers are also reconsidering their relationship with tobacco in light of the dangers posed by the highly contagious and deadly respiratory disease. In the UK, over a million smokers have quit in the last six months, with 41% of those claiming fears of coronavirus were their primary motivation for doing so. Meanwhile, the University College London found that more people have given up smoking in the year up to June 2020 than in any other 12-month window since records began over a decade ago.

Underhanded tactics at play

Never one to take such setbacks lying down, Big Tobacco has resorted to its tried and tested tactical playbook. Among other machinations, that playbook involves obfuscating and influencing the science by funding favorable studies on the subject of coronavirus and smoking, delaying anti-tobacco regulations and claiming the industry comprises an “essential business” to avoid lockdown measures in places as diverse as Italy, Pakistan and Brazil.

At the same time, major tobacco firms have been accused of crisis-washing. Philip Morris International (PMI) donated a reported $1 million to the Romanian Red Cross and 50 ventilators to a Greek hospital, as well as an estimated €350,000 to a Ukrainian charity, with other big players reportedly having done the same. Critics claim these apparently altruistic contributions are nothing more than opportunistic PR stunts which capitalize on a global tragedy to paint Big Tobacco in a positive light – something which the industry itself vehemently rejects.

Regardless of the intent behind the donations, there are heavy suspicions that they may have contravened the Framework Convention on Tobacco Control (FCTC) protocol, which specifically prohibits governments or government-owned bodies from taking funds from the tobacco industry. Unsurprisingly, this kind of chicanery is nothing new for Big Tobacco, who have been ploughing a similar furrow for decades. Unfortunately, it’s one that continues to yield advantages for those behind the yoke, despite efforts to curb their influence.

Ineptitude and inefficiency in the EU

EU policymakers have, disappointingly, demonstrated themselves to be particularly susceptible to the tobacco industry’s malignant influence. As detailed by the OCCRP, the EU has effectively handed over large parts of its track and trace (T&T) system for illicit tobacco to firms with close ties to the industry. The system, which the FCTC has highlighted as an integral step in clamping down on a black market that costs the bloc more than €10 billion per annum in lost public revenue, is intended to monitor a packet’s progress at each stage of the supply chain via a unique identifier, thus eliminating any opportunity for wrongdoing.

A central element of any successful T&T system, as defined by the Illicit Trade Protocol (ITP), is its complete independence from the industry itself. However, the OCCRP investigation has uncovered how key firms developing T&T software and handling the process have ties to the tobacco industry, including seven out of eight of the companies tasked with storing the all-important cigarette data. Meanwhile, one of the main companies monitoring hundreds of supply lines into the EU – Inexto – appears to be at least partially funded by Big Tobacco, while the very software it uses to carry out its obligations was purchased from PMI themselves for a rumored fee of just one Swiss franc.

The whole process is so riddled with inefficiencies that nine months after its implementation, insiders have said they have no idea how effective it has been in clamping down on the illegal trade, while one official from the UK’s trading standards office has called it “completely useless”. Nonetheless, EU officials have travelled the world touting the benefits of their system and several nations have already bought into the myth, with Inexto winning contracts from Mexico, Pakistan, Russia, and governments in Western Africa to date. The Pakistani contract, at least, has since been invalidated by court order.

A vaccine for industry influence

At a time when the Covid-19 crisis has thrown health concerns into sharp relief, governments and health groups should be taking a page out of the obesity debate book and generating momentum towards cutting smoking rates in their territories. While that momentum does seem to be gaining ground, it sadly does not appear to have escaped the pervasive and pernicious influence of the industry itself, which undermines the entire process.

Big Tobacco’s stratagems are widely documented and well understood – but this knowledge does not seem to be capable of preventing their success all the same. In addition to a vaccine for this deadly new coronavirus, it seems immunity against industry intervention should also be on the EU’s priority list.

Continue Reading
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