Proposed tobacco rule changes both undermine EU law-making and threaten to put lives at risk

When EU health ministers meet on 21 June, they will have a last-minute Danish Health Minister proposal added to their agenda that seeks to disrupt the checks and balances that are meant to characterise the European Union’s approach to passing laws and making regulations. It affects the always controversial question of tobacco and nicotine regulation, where the wrong decision can deny smokers the safer alternatives that they often need to quit cigarettes, which continue to damage the health and ultimately cost the lives of too many European citizens.

The alarm was raised by the newly re-elected Swedish MEP Charlie Weimers on his first day back in Brussels. “Apparently, Denmark has opened up to a ban on the flavouring of new nicotine products, including nicotine pouches”, he tweeted. “Denmark is trying to pre-empt the Revision of the Tobacco Products Directive expected during this term”.

The European Commission has failed to publish a report on the public consultation about a new Tobacco Products Directive (TPD 2), after President Ursula von der Leyen halted potentially controversial measures ahead of the European Parliament elections and the process of appointing a new Commission.

But a public assurance was given earlier this year that the possible revision of the Tobacco Products Directive and what it will cover will depend on the findings of a scientific evaluation and the public consultation, as well as a thorough impact assessment.

“The political decisions in this respect will be taken by the next Commission, in light of the above preparatory steps”, a spokesperson said. But now there is an attempt to get a new policy through before the present Commission ends and before the bodies responsible for European legislation -the Council and the Parliament- can give their views.

This would not be the first time the Commission has tried to short-circuit the democratic process. Courts in member states have upheld challenges to domestic legislation that transposed European directives. Judges found that they went beyond EU law in the regulation of heated tobacco products and other safer alternatives to cigarettes.

But even if the Commission loses when these cases eventually reach the European Court of Justice, the damage will have been done. Too many smokers will continue to use cigarettes instead of switching to devices, such as vapes and e-cigarettes that give them the nicotine they crave without inhaling the smoke that causes cancer.

It’s impossible not to see the fingerprints of the Commission’s Directorate-General for Health and Food Safety, DG SANTE, on the request sent by the Danish Health Minister to his EU counterparts, asking for support for radical proposals that would effectively bypass the TPD continuous evaluation process, Denmark has the worst record for reducing cigarette smoking of any Nordic country, with the percentage of the population that smokes three time higher than in neighbouring Sweden.

Sweden has a traditional alternative product to cigarettes, snus, which allows nicotine to be absorbed without the tobacco being burnt. It poses a much lower risk of cancer and the Swedish government has moved to encourage smokers to make the switch by cutting the tax on snus and increasing it on cigarettes. Snus is banned in the rest of the EU but Sweden obtained an exemption when it joined the European Union. 

One irony is that the European Commission does have a measure, updating the Tobacco Excise Directive, which it could bring forward before implementing a proper process on a wider revision of tobacco and nicotine legislation. The proposed new TED, which aims to harmonise tax policy across member states to improve the functioning of the single market, enshrines the differentiation between cigarettes and different kinds of safer alternative products.

It was stalled when a leak to a newspaper revealed that snus would be highly taxed, prompting strong objections from the Swedish government. But a climbdown by the Commission on that point should enable it to go ahead.

Instead, we have a last-minute proposal from Denmark. It appears to build on a call to restrict or ban new tobacco and nicotine products made by several member states, which was due to be raised under ‘any other business’ at the health ministers’ meeting.

An independent consultant on public health and sustainability and former director of Action on Smoking and Health (ASH) in the UK, Clive Bates, sees it as attempt by some health ministers to impose tobacco policy measures that member states can’t get agreed in their own jurisdictions. 

“If they think more restrictions are justified, they should be making an evidence-based case”, he told me. “That should take into account the effects on adults, the effects on young people who otherwise smoke, the effects in young people who don’t smoke and the effects of unintended consequences such as illicit trade, people mixing their own products, people going back to smoking …. It’s a much more complicated picture than they are making out.

“They are claiming gateway effects, when all the evidence points in the opposite direction -that these vaping products and other nicotine products are an exit from smoking. If you are going justify interfering in the personal behaviour of millions of Europeans, you make a better case for it.

“You shouldn’t be regulating in haste with this sort of thing, making cheap, populist gestures, when actually lives are on the line. It’s a life-or-death issue that this is done properly, and they’re treating it with a kind of flippancy. We need strong deliberative process that leads to well thought out measures to deliver for health and the internal market within the EU, not prohibitions that actually harm”.

Clive Bates was speaking to me at the Global Forum on Nicotine in Warsaw, where it was already feared that -as the organisers put it- EU bureaucrats will send millions back to smoking, with the result that the EU’s Beating Cancer Plan is unlikely to meet its aim of reducing cancer.

Onerous restrictions on novel nicotine products set out in the plan include flavour bans, public space use bans, plain packaging and high taxation on vapes and other safer nicotine products, all at a time when in some European countries, smoking rates are already increasing

“Europe could end up like Australia where, perversely, you can only buy tobacco legally if it’s for smoking”, said Dr Colin Mendelsohn, Founding Chairman of the Australian Tobacco Harm Reduction Association charity. “E-cigarettes are so hard to get that they might as well be banned”.

In the US, the situation is just as dire, with regulations so onerous that legal options just can’t compete with the black market, while in New Zealand and Japan, smoking rates dropped by a half and a third, respectively, after the introduction of heated tobacco products.  

“Making it harder to give up smoking by pricing people out or making alternative products so unattractive that nobody wants to use them, is not the answer”, said Dr Garett McGovern, Medical Director at the Priority Medical Clinic in Dublin, Ireland.

The Forum also heard that the reduction of nicotine content in products is counterproductive, because people smoke more, as well as threatening the livelihoods of Europe’s tobacco farmers. Low nicotine tobacco can only by farmed using genetically modified (GM) crops but most EU member states ban or restrict these crops. Farmers won’t be able to farm them, and tobacco farming will be negatively impacted.

That’s just one example of the potentially disastrous unintended consequences of ill-thought-out legislation. So what should be done? Experts at the Global Forum on Nicotine were unanimous that novel tobacco and nicotine products should not be in the hands of minors. But it is naïve to believe that bans or extreme measures will successfully remove products from countries. In a lot of cases some of the products being picked up by minors are already illegal imports. The issue is enforcement and education, not inadequate regulation.

It’s EU member states that should use their exclusive competency in the field of public health to address when necessary the use of these products by underage people. This includes regulating flavours and packaging of e-cigarettes and nicotine pouches as well as introducing excise tax to avoid excessively low prices affordable to minors, retailer licensing and strengthening enforcement of youth access prevention measures.

Gathering valuable experience at a member state level in regulating novel tobacco and nicotine containing products is the essential pre-requisite for acting on an EU level. Instead, the Commission is attempting to ignore member states’ experience and in some cases success in reducing smoking incidence by leveraging innovative products, while at same time preventing minors from accessing these products.

For example, Finland, Denmark, Latvia, Lithuania and Estonia have introduced or are in the process of introducing restrictions on e-cigarette flavours and/or pouches while permitting certain flavours such as tobacco -and in some instances also mint and menthol-to ensure that these products remain an acceptable alternative for adult smokers.

Ultimately the right balance needs to be struck between the potential of novel tobacco and nicotine products to reduce the harm caused by smoking and protecting minors. These products need to be regulated to remain acceptable as a better alternative to smoking for adult smokers while not becoming especially attractive to minors.

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