The European Court of Justice decided against overturning the EU-wide ban on the smokeless tobacco snus. The ruling displays a political public health motivation, writes Bill Wirtz.
In January last year, the New Nicotine Alliance (NNA) appealed against the 1992 EU-ban on the smokeless tobacco snus. Snus is powdered tobacco, often sold in pre-packed bags of the size of an index finger, which the users place on the upper lip. It is sometimes confused with snuffed tobacco, which is legal. Snus does have associated health risks, and can also lead to nicotine addiction, yet it reduces the risk of pulmonary diseases. The product is particularly popular in Scandinavian countries.
According to Eurostat figures, smoking rates in Sweden - which negotiated an opt-out of the snus ban when it joined the EU in 1995 - are the lowest in the whole of Europe. In fact, they are half those of most European countries, and are three times lower than in Bulgaria, Greece, Hungary or Turkey. It’s hard to imagine that snus doesn’t play a role in this – because it doesn’t qualify as smoking. Similarly, statistics in Norway reveal that 2017 marked the first year in which 16- to 74-year-olds consumed more snus than cigarettes.
The ban was defended by counsels for the European Commission, the European Council, the European Parliament, Norway and the UK. Among the arguments presented were that tobacco consumption of all kinds needs to be reduced, and that snus could be regarded as a gateway to conventional cigarettes. Not only is there no scientific evidence for the ‘gateway drug’ claim — it is also bizarre that EU outlaws the gateway, while allowing the sale of cigarettes, a drug it considers more dangerous. Snus advocates suffered a major blow when Danish Advocate-General Henrik Saugmandsgaard Øe concluded that snus remains a health hazard, which legitimizes the ban.
In a ruling published on 22 November, the ECJ ruled against the re-authorization of snus in the European Union.
Pro-snus advocates have two reasons to argue for a lifting of the ban: on one hand there's the economic incentive of the company's that make snus, which would not be denied by the companies. After all, producing companies have an obvious business incentive. But more importantly, there's an aspect of harm-reduction that is important: cigarette smokers can quit smoking through snus. Yes, snus is not a harmless product in itself, but it is a better alternative than cigarettes. Shouldn't the goal of public health be to encourage this process of reducing risks?
The ruling of the European Court of Justice displays a deep bias against the principle of harm-reduction. The court casts out the experience of Norway and Sweden, and says that that snus as a tobacco cessation method is "uncertain". It also cleverly manages to avoid asserting that there is a gateway effect, by stating that there is a "risk of a gateway effect". Calling it a mere gateway risk exempts the judges from proving the gateway relationship, which is not proven.
However, two paragraphs in the ruling stand out:
"Tobacco products for oral use remain harmful to health, are addictive and are attractive to young people. Further, as stated in paragraph 26 of the present judgment, such products would, if placed on the market, represent novel products for consumers. In that context, it remains likely that member states may be led to adopt various laws, regulations and administrative provisions designed to bring to an end the expansion in the consumption of tobacco products for oral use."
Most interestingly, nothing in this paragraph (58) is untrue. Snus is harmful to health, it can be addictive and it is attractive to young people (as observed in Scandinavian countries). It is also correct that the product would be novel, and that certain member states would feel inclined to regulate on the national level. However, nothing therefore contradicts the claims of harm-reduction.
"Moreover, as regards more particularly the claim by Swedish Match [Swedish company that produces snus] that the permission given to the marketing of other tobacco and related products demonstrates that the prohibition on the placing on the market of tobacco products for oral use is disproportionate, it must be recalled that an EU measure is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner [...]."
This paragraph 59 of the ruling is the most telling about the political motivations of the court. Swedish Match made an argument over the proportionality of the ban vis-à-vis other legal products. In essence: why is snus illegal, while other products which are more harmful, such as cigarettes, are legal?
The paragraph contains a lot of legalese, but it refers in its arguments to a ruling of July last year, in which it stated that it considers the overall objective of a law in its judgement regard proportionality. In essence, the ECJ says that EU rules against tobacco are made in an effort to protect public health, which means that any change on the market that could, in any way possible, make a product more interesting to consumers, contradicts the objective of the law. In fact, the court doesn't deny that a ban on snus is disproportional in itself, but that given the context of the objectives of public health policy, a ban is proportionate. Nothing could indicate more clearly that the court only confirms the policies of the European Union.
Snus is one of the viable harm-reducing products, which can actually give tobacco users a viable alternative for smoking cigarettes. Yes, consumers do not always choose the healthiest option for themselves, but if presented with choices offered on the market, they might actually reduce the health hazards posed to their bodies.
Bill Wirtz is a policy analyst for the Consumer Choice Center.
Illicit tobacco trade: Nearly 370 million cigarettes seized in 2020
International operations involving the European Anti-Fraud Office (OLAF) led to the seizure of nearly 370 million illegal cigarettes in 2020. The majority of the cigarettes were smuggled from countries outside the EU but destined for sale on EU markets. Had they reached the market, OLAF estimates that these black market cigarettes would have caused losses of around €74 million in customs and excise duties and VAT to EU and member state budgets.
OLAF supported national and international customs and law enforcement agencies from across the world in 20 operations during 2020, in particular providing vital information on the identification and tracking of lorries and/or containers loaded with cigarettes misdeclared as other goods at the EU borders. OLAF exchanges intelligence and information in real time with EU member states and third countries, and if there is clear evidence that the shipments are destined for the EU contraband market, national authorities are ready and able to step in and stop them.
OLAF Director-General Ville Itälä said: “2020 was a challenging year in so many ways. While many legitimate businesses were forced to slow or halt production, the counterfeiters and smugglers continued unabated. I am proud to say that OLAF’s investigators and analysts played a vital role in helping to track and seize these illegal tobacco shipments, and that OLAF’s cooperation with authorities across the globe has remained strong despite the challenging conditions. Our joint efforts have not only helped save millions of euros in lost revenues and kept millions of contraband cigarettes of the market, they have also helped us get closer to the ultimate goal of identifying and closing down the criminal gangs behind this dangerous and illegal trade.”
A total of 368,034,640 cigarettes destined for illegal sale in the EU were seized in operations involving OLAF during 2020; of these 132,500,000 cigarettes were seized in non-EU countries (primarily Albania, Kosovo, Malaysia and Ukraine) while 235,534,640 cigarettes were seized in EU member states.
OLAF has also identified clear patterns with regard to the origins of this illicit tobacco trade: of the cigarettes seized in 2020, some 163,072,740 originated in the Far East (China, Vietnam, Singapore, Malaysia), while 99,250,000 were from the Balkans/Eastern Europe (Montenegro, Belarus, Ukraine). A further 84,711,900 originated in Turkey, while 21,000,000 came from the UAE.
The main cigarette smuggling operations reported by OLAF in 2020 involved collaborations with authorities in Malaysia and Belgium, Italy and Ukraine, as well as a number involving authorities from across the EU and elsewhere.
OLAF mission, mandate and competences
OLAF’s mission is to detect, investigate and stop fraud with EU funds.
OLAF fulfils its mission by:
- Carrying out independent investigations into fraud and corruption involving EU funds, so as to ensure that all EU taxpayers’ money reaches projects that can create jobs and growth in Europe;
- contributing to strengthening citizens’ trust in the EU Institutions by investigating serious misconduct by EU staff and members of the EU Institutions, and;
- developing a sound EU anti-fraud policy.
In its independent investigative function, OLAF can investigate matters relating to fraud, corruption and other offences affecting the EU financial interests concerning:
- All EU expenditure: the main spending categories are Structural Funds, agricultural policy and rural
- development funds, direct expenditure and external aid;
- some areas of EU revenue, mainly customs duties, and;
- suspicions of serious misconduct by EU staff and members of the EU institutions.
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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