EU public health aims not served by banning electronic cigarettes

The European Parliament’s Legal Affairs Committee has said that some of the European Commission’s proposals aimed at revising the Tobacco Products Directive raise significant legal concerns.

These concerns relate to the legal base chosen by the commission, to fundamental rights such as the right to property and to the principle of proportionality.

The committee said the commission had based its proposals on a provision that allowed for measures aimed at improving the conditions for the establishment and functioning of the internal market. However, some of the measures proposed by the commission did not aim to improve the internal market, but had as their only objective the protection of public health.

“For example, it is difficult to see how the proposed (de facto) ban on menthol and on slim cigarettes could improve the functioning of the internal market,” the committee said. The true aim of these measures was the achievement of a higher level of health protection, but, while the protection of health was of the utmost importance, it was up to the member states and not the European Union to take measures in that regard.

“Some provisions in the commission’s proposal also raise serious doubts as to their conformity with fundamental rights such as the right to property, the right to freedom of expression and information and the freedom to conduct business,” the committee said. “These rights are enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”) and may only be limited pursuant to Article 52(1) of the Charter if the limitation is necessary, genuinely meets objectives of general interest and is proportional.

“Certain of the proposed measures, especially regarding the packaging, do not meet these requirements.”

Later, in its opinion, the committee said that, bearing in mind the impact on intellectual property rights, it was more than surprising that the commission did not even consider less restrictive measures such as smaller health warnings.

“Other measures proposed by the commission regarding the size and appearance of unit packs and regarding the product description meet similar concerns regarding fundamental rights,” the committee said. “They deprive manufacturers of their intellectual property rights, reduce customer choice and do not contribute to a better functioning of the internal market.

“By prohibiting any labeling that suggests that a particular tobacco product is less harmful than others, the proposal causes an additional problem. The development and promotion of less harmful means of tobacco use is essential in order to support tobacco users to stop smoking cigarettes and the like. Manufacturers must be able to communicate that a certain product is less harmful than others if this is scientifically proven and if it is not misleading.

“This is not the only measure proposed that would make it more difficult to access reduced-risk products. Article 18 of the proposal prohibits nicotine-containing products (NCP) such as e-cigarettes containing a certain nicotine level if they are not authorized pursuant to Directive 2001/83/EC (the Medicinal Products Directive). It is, however, quite unclear if these products (which are much less harmful than tobacco products) even fall under the scope of the Medicinal Products Directive. For products which do not fall under the directive, this would effectively constitute a ban. Banning products which are less harmful than tobacco products and which can be a means of smoking cessation is certainly not in line with the public health aims of the proposal.

“Finally, the commission’s proposal contains a large number of provisions delegating powers to the commission. However, pursuant to Article 290 TFEU, a delegation of powers is only possible with regard to nonessential elements of the legislative proposal. Some of the proposed provisions providing for delegated acts do not fulfill this requirement. For example, Article 3(2) in conjunction with Article 2(19) would grant the commission to set the maximum yield of nicotine for cigarettes placed on the market to zero, effectively prohibiting cigarettes for good.”