Totally 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.”
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.