Member states urged to do more to enforce new tobacco legislation

Some member states are failing to implement an EU law which bans flavours being added to tobacco products, it has been claimed, writes Martin Banks.

It is alleged that, despite the near year-old EU legislation, some tobacco companies have continued to launch extra menthol style products.

The Tobacco Products Directive (TPD), applicable in EU member states, imposed a ban on flavoured tobacco products.

The Directive includes measures on e-cigarettes, flavourings, additives and packaging.

Cigarettes and RYO (roll your own) tobacco may no longer have flavours such as menthol, vanilla or candy that mask the taste and smell of tobacco. It is hoped the move will help deter young people from taking up smoking by banning cigarettes with a ‘characterising flavour’ other than tobacco.

Governments across Europe, though, have criticised tobacco companies for allegedly trying to get around the ban. Member states are known to be now investigating the issue but have yet to take any firm action.

The European Commission, in turn, has deferred to member states,arguing that it is up to national capitals to enforce the EU wide legislation.

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The directive, introduced last May, aims to prevent “characterising flavours” in cigarettes to make them less attractive to children and help smokers quit.

Some governments,including Ireland say they want the European ban on menthol cigarettes strengthened to stop tobacco companies side-stepping it.

The Irish Health Service Executive says it is “actively investigating” tobacco companies over alleged breaches of the menthol cigarette ban. Irish health minister Stephen Donnelly says that the directive is “being reviewed at EU level” and he would strongly support any revisions to the directive that would ensure that the provision in relation to the menthol ban is “robust”.

An appeal against the EU law change was attempted by Philip Morris, the manufacturer of cigarette brands such as Marlboro, but it was rejected by the European Court of Justice.

A number of member states are reportedly actively investigating products in their markets produced by some companies including Japan Tobacco International (JTI) which anti-tobacco campaigners and rival tobacco companies claim is in breach of the Tobacco Products Directive (TPD). 

Japan Tobacco International, the maker of Silk Cut, says it is “confident that all our cigarettes and rolling tobacco are fully compliant in the EU.”

Countries with new brands are believed to include Austria, Czech Republic, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

A 2021 “management plan” by the European Commission’s SANTE directorate said that “After the menthol ban took effect in May 2020, several Member States started procedures on determining characterising flavours in tobacco products.” 

A Commission official told this site that the “rules for the procedures and workflow for the determination process are laid down in Commission Implementing Regulation (EU) 2016/779 of 18 May 2016.

“The Commission has recently approved the methodology to assist in the determination of the characterising flavours in tobacco products. This is an important element going forward.”

The official added, “The Commission also works on the coordination of the efforts taken by individual Member States as regards their national procedures.”

Several member states have reported some suspected tobacco products containing characterising flavours on their respective markets and a few EU countries have started national investigation procedures about which they also informed the Commission.

A JTI spokesperson told this site, “We do not sell or plan to sell cigarettes or rolling tobacco with characterizing flavors in the EU. These products have been banned since May 20, 2016 (with a derogation for cigarettes and rolling tobacco with a characterizing flavor of menthol that expired on May 20, 2020). Some of our cigarettes and rolling tobacco still contain very low levels of menthol.”

The spokesman said, “This is permitted under the law, provided that the use of such flavorings does not produce a clearly noticeable smell or taste other than one of tobacco – which they do not. We provided the EU authorities with information on the ingredients of these products prior to selling them on the market, ensuring full transparency. We are therefore confident that all our cigarettes and rolling tobacco are fully compliant in the EU.”

The EU has claimed an overall successful application of the TPD even though there are still banned products thought to be circulating.

A commission press release last year said, “Cigarettes and roll-your-own (RYO) tobacco products may no longer have characterising flavours such as menthol, vanilla or candy that mask the taste and smell of tobacco. In the case of products with more than a 3% market share (e.g. menthol), the ban will apply as of 2020.”

A source at the European parliament said, “It seems that some companies are taking advantage of the slowness by member states to act and continue to launch extra menthol style products.

“The Commission may be looking to ban or restrict more products but surely it first needs to address the enforcement issue and the gaps in the current TPD.”

Flavouring is prohibited also in filters, papers, packages, capsules or any technical features allowing modification of the smell or taste of the tobacco products concerned or their smoke intensity1. The TPD bans characterising flavours ‘other than that of tobacco’, meaning that it is ‘an added component that cannot be found in natural tobacco leaves’.

According to the WHO, the tobacco epidemic is one of the biggest public health threats the world has ever faced, resulting in more than 8 million deaths each year. More than 7 million of those deaths are the result of direct tobacco use while about 1.2 million are the result of non-smokers being exposed to secondhand smoke.

Moreover, the economic costs of tobacco use are substantial and include significant healthcare costs for treating the diseases caused by tobacco use as well as the lost human capital that results from tobacco-attributable morbidity and mortality.

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