European Court to hear electronic cigarette challenge to Tobacco Products Directive

E-cigaretteUK based Totally Wicked, the UK’s leading independent electronic cigarette manufacturer, will formally challenge the validity of Article 20 of the EU Tobacco Products Directive (TPD) at the Court of Justice of the EU (CJEU) in Luxembourg on 1 October 2015 at 14h30 (CET). 

The CJEU’s decision, expected early next year, will determine whether Article 20 of the TPD breaches EU law. The hearing follows a decision by the High Court in London on the 6th of October 2014 to refer questions relating to the lawfulness of Article 20 to the CJEU for a “preliminary reference” ruling.

Totally Wicked is the only electronic cigarette manufacturer to win the right to challenge this Directive which will bring e-cigarettes and e-liquid within its regulatory scope as a “tobacco related product” – despite not containing tobacco – and subject e-cigarettes to more stringent regulation than some tobacco products. Electronic cigarettes are a revolutionary product. They are estimated to be at least 95 per cent less harmful than tobacco products and are recognised as the number one tool used by smokers to quit smoking. Left to develop under proportionate consumer regulation, e-cigarettes have the potential to render tobaccoobsolete and prevent millions of deaths from smoking. There are currently nearly three million vapers in the UK.

All of these people are now smoking fewer or no cigarettes as a direct result of having switched to e-cigarettes.  If Article 20 of the TPD is implemented:

  • E-liquid will only be sold in bottles no larger than 10ml;
  • significant testing costs will reduce the number of flavours available;
  • nicotine strengths will be restricted to 20 mg/ml;
  • most refillable devices will be banned;
  • tanks will be restricted to 2 ml in size;
  • restrictions will be placed on e-commerce, and;
  • advertising and sponsorship will be banned.

Put simply, this will make it harder for smokers to switch to vaping and many vapers will return to smoking. Specifically, Totally Wicked’s challenge is based on its view that Article 20 of the TPD 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’s legal challenge has the support of vapers and electronic cigarette companies right across Europe.  A petition containing more that 71,000 signatures in support of the legal challenge was delivered to the UK Department of Health on Tuesday the 29th of September.

Fraser Cropper, the managing director of Totally Wicked, said:  “1 October will be a truly historic day in the history of vaping.  It will be a culmination of a battle that has lasted more than two years.  A battle between those who recognise the public health potential vaping offers and therefore wish to see vaping flourish under a robust yet proportionate consumer regulatory regime, and those who either do not understand vaping or see it as a threat to established interests and therefore wish to see e-cigarettes subjected to a disproportionate and inappropriate regulatory regime.

“Article 20 of the TPD would result in electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products. Not only is this Article therefore disproportionate, we believe it is also contrary to established EU law. It is therefore vitally important that the CJEU makes a ruling on the lawfulness of Article 20. For the sake of e-cigarette users and potential users, it is crucial 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.”

Susan Garrett, the partner leading the team at Addleshaw Goddard LLP mounting the challenge said: “Totally Wicked believes that the Tobacco Products Directive is a misconceived and disproportionate attempt to regulate electronic cigarettes.  The decision last year to refer certain questions regarding the lawfulness of the provisions in the Directive relating to e-cigarettes was a key milestone for our client, given the impact it believes the Directive will have in stifling this emerging market.  We are pleased to be supporting Totally Wicked in pursuing this landmark challenge to the lawfulness of the Directive, and are delighted that our client has the opportunity to argue its case in Luxembourg during the preliminary reference hearing on 1 October.”


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Category: A Frontpage, Electronic cigarettes, EU, Health

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