Challenges to law denied
The European Court of Justice upheld the EU Tobacco Products Directive (TPD) in a long-awaited and widely expected decision. The law imposes restrictions on vapor products, and creates a compliance system for manufacturers. The court rejected a legal challenge from British e-liquid manufacturer Totally Wicked, as well as separate lawsuits brought by tobacco companies regarding new rules on combustible cigarettes.
The law will go into effect on May 20, though there will be a one-year grace period during which businesses may sell non-compliant products. The law requires manufacturers to notify regulators six months in advance of offering products for sale. For companies that produce many different products (remember that each flavor and strength of e-liquid requires a separate notification), this will be an expensive and burdensome process.
Most problematic for vapers and vendors may be the limits on bottle size and nicotine strength for e-liquid. Under the new rules, nicotine-containing e-liquid cannot be sold in bottles larger than 10 milliliters, and the liquid may not exceed 20 mg/mL (two percent). There are also new labeling requirements.
Though touted as a way to prevent risk of accidental ingestion or spills, these restrictions will likely lead to unintended consequences. Vapers will skirt the rules by mixing their own liquids and buying products on the black market. Clive Bates recently described how easy it is to buy pure nicotine online, which many will resort to in order to mix with (unregulated) nicotine-free e-liquids.
There are rules on tanks too. A capacity limit of 2 mL and a requirement that they be “leak-proof” guarantees there will be a huge demand for what will soon be illegal products. Since there is no way for the EU or its member countries to seriously enforce these rules, vapers are left wondering what possible purpose they serve other than to pointlessly harass consumers and sellers.
“A law that will harm the health of its citizens”
The New Nicotine Alliance, a UK non-profit group that advocates for e-cigs and other reduced-risk nicotine products, said in a statement, “The resulting ruling from the CJEU places an undue burden on the industry that is predominantly made up of small business by enforcing a cumbersome, fragmented and expensive notification system for new and existing products that meet the stringent requirements of the Directive to reach the market.”
Indeed, the TPD seems like an upside-down gift to the manufacturers of combustible cigarettes. Rules that make it harder to stop smoking than to keep smoking certainly can’t protect or improve public health.
Sarah Jakes, NNA trustee, said, “The Government’s own impact assessment of the directive showed that there is a very real risk that the provisions which relate to e-cigarettes will deter smokers from switching to vaping and may push some vapers back to smoking. It is a very sad day when a government is ‘forced’ to implement law which will harm the health of its citizens.”