• June 21, 2024

Menthol exemption set

 Menthol exemption set

 The European Commission has said that the length of the temporary exemption granted to menthol in respect of a ban on characterizing flavors in cigarettes and fine-cut cannot be altered on the basis of circumstances that were taken into account by the co-legislators.

The Commission was responding to questions from the Belgian MEP Philippe Lamberts who, as part of a preamble to his questions, said the Belgian press had reported that the Commission was threatening to bring legal action against the Belgian government because it was seeking to ban the sale of menthol products before 2020.

“In doing so, the Commission would be putting the commercial interests of manufacturers before the public health interests of EU citizens,” he said.

He then asked:

“What is its justification for that stance?”; and

“Is the Commission’s position not contrary to Article 9 of the Treaty on the Functioning of the European Union, which provides that ‘in defining and implementing its policies and activities, the Union shall take into account requirements linked to (…) a high level of (…) protection of human health’?’”

In reply, the Commission said the Tobacco Products Directive prohibited cigarettes and roll-your-own tobacco with a characterizing flavor.

“However, a phase-out period of four years–until 2020—applies to tobacco products with a characterizing flavor whose union-wide sales volumes represent three percent or more,” it said.

“Member states are obliged to comply with this provision to allow consumers adequate time to switch to other products… It should be recalled that the objective of this directive is to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people.”

The Commission went on to say that in 2018 Belgium had notified a draft law repealing this phase-out period.

“The Commission and other member states have the opportunity to comment on member states’ draft technical regulations,” the Commission said.

“This is a preventive tool which aims to ensure the smooth functioning of the internal market and address potential issues before a law is adopted. In that regard, the Commission issued a detailed opinion addressed to Belgium.

“There is no flexibility to alter the date of the temporary exemption on the basis of circumstances which were already duly taken into account by the co-legislators, namely the protection of human health. In Case C-547/14 Philip Morris Brands SARL and Others v Secretary of State for Health the Court concluded that the fact that the date of the prohibition was set for 20 May 2020 demonstrated that the EU legislature weighed up, on the one hand, the economic consequences of that prohibition and, on the other, the requirement to ensure a high level of human health protection.”Menthol exemption set

Whatever the rights or wrongs of the coming ban on menthol in tobacco products, EU legislation seems to have arranged for its introduction in a measured way.

The European Commission has said that the length of the temporary exemption granted to menthol in respect of a ban on characterizing flavors in cigarettes and fine-cut cannot be altered on the basis of circumstances that were taken into account by the co-legislators.

The Commission was responding to questions from the Belgian MEP Philippe Lamberts who, as part of a preamble to his questions, said the Belgian press had reported that the Commission was threatening to bring legal action against the Belgian government because it was seeking to ban the sale of menthol products before 2020. 

“In doing so, the Commission would be putting the commercial interests of manufacturers before the public health interests of EU citizens,” he said.

He then asked:

“What is its justification for that stance?”; and

“Is the Commission’s position not contrary to Article 9 of the Treaty on the Functioning of the European Union, which provides that ‘in defining and implementing its policies and activities, the Union shall take into account requirements linked to (…) a high level of (…) protection of human health’?’”

In reply, the Commission said the Tobacco Products Directive prohibited cigarettes and roll-your-own tobacco with a characterizing flavor.

“However, a phase-out period of four years–until 2020—applies to tobacco products with a characterizing flavor whose union-wide sales volumes represent three percent or more,” it said.

“Member states are obliged to comply with this provision to allow consumers adequate time to switch to other products… It should be recalled that the objective of this directive is to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people.”

The Commission went on to say that in 2018 Belgium had notified a draft law repealing this phase-out period.

“The Commission and other member states have the opportunity to comment on member states’ draft technical regulations,” the Commission said.

“This is a preventive tool which aims to ensure the smooth functioning of the internal market and address potential issues before a law is adopted. In that regard, the Commission issued a detailed opinion addressed to Belgium.

“There is no flexibility to alter the date of the temporary exemption on the basis of circumstances which were already duly taken into account by the co-legislators, namely the protection of human health. In Case C-547/14 Philip Morris Brands SARL and Others v Secretary of State for Health the Court concluded that the fact that the date of the prohibition was set for 20 May 2020 demonstrated that the EU legislature weighed up, on the one hand, the economic consequences of that prohibition and, on the other, the requirement to ensure a high level of human health protection.”