After the Split

    What does Brexit mean for tobacco and vaping?

    By Clive Bates

    The U.K. government has banned the word Brexit—or at least insisted the word is used only to describe a joyful event that happened in the past. Having promised in the U.K.’s December general election “to get Brexit done,” Prime Minister Boris Johnson has declared that Brexit was officially “done” when the United Kingdom left the European Union on Jan. 31, 2020.

    But Brexit is not, in reality, done at all. Far from it. Almost every aspect of the future relationship between the U.K. and the EU remains to be negotiated: terms of trade in goods and services, food, farming, fishing, pharmaceuticals, financial services, aviation, aerospace, automotive, energy, immigration, data protection and sharing, security and justice cooperation—the list is endless and will consume British politics for years.

    Buried deep in that list is the question of the U.K.’s approach to those aspects of tobacco regulation that are under EU jurisdiction but now revert to control by the U.K. government.

    Given the U.K.’s stated intent not to extend the transition period beyond the end of 2020, it will all need to be done in a breathtakingly short timetable.

    Where does this leave tobacco and vaping? Unfortunately, the only truthful answer at this point is “we just don’t know.” The statements of politicians are unreliable—more like populist banter or strutting negotiating postures than declarations of genuine intent. However, we can take a look at the options.

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    What is the most important EU legislation that covers tobacco?

    In the EU, jurisdiction over tobacco is split between the now 27 member states and the European Union. Some matters are regulated at the EU level and others (for example, age restrictions or smoking or vaping in public places) are regulated at the national or subnational level. There are three main areas in which the EU has jurisdiction: cross-border tobacco advertising, a framework for tobacco excise duties, and tobacco product regulation, which is meant to harmonize product regulation to facilitate trade within the EU’s internal market with a high level of health protection.

    Advertising

    The EU’s tobacco advertising regime prohibits any form of tobacco advertising, promotion or sponsorship that is capable of crossing a border (TV, radio, internet, newspapers, etc.). It does not apply to fixed advertising such as billboards or advertising in shops. The U.K. legislation goes further than required by the EU directives and bans almost all tobacco advertising, whether transboundary or fixed. Outside the EU, Parliament could potentially change this legislation, for example, to allow the advertising of reduced-risk products such as heated or smokeless tobacco products based on a pro-health harm reduction argument. The EU law on the advertising of vapor products is implemented by the Tobacco Products Directive (TPD), and this imposes more or less the same restrictions on vapor advertising as the Tobacco Advertising Directive applies to cigarettes. In the case of vaping, however, the U.K. has used its national discretion to allow fixed advertising, which is governed by a code set up by the U.K. Committee of Advertising Practice.4 The U.K. could, at least in theory, apply this code to all advertising for vapor products, including transboundary advertising. Again, the justification would come from the government’s determination to reach its 2030 smoke-free goal.

    Excise duties

    The tobacco excise directive mainly harmonizes definitions and sets limits for different components of tobacco excise duty. This directive is not especially constraining on U.K. excise policy options for, say, cigarettes or hand-rolling tobacco. However, the U.K. may wish to establish particular categories in its excise framework for vaping, heated tobacco, smokeless or oral nicotine products. Even while still a member state of the EU, the U.K. has been free to do this. I doubt that Brexit will make much difference to U.K. excise duty policy unless the EU moves in a direction that is especially hostile to tobacco harm reduction—for example, by requiring nonzero minimum duties on vaping or duties on heated products that approach those on cigarettes. Tax changes in the EU require unanimity among the EU’s member states, so the U.K., as a member, would have had a veto on tax changes hostile to tobacco harm reduction.

    Product regulation

    The most fertile ground for U.K. divergence from the EU’s regulatory system would be to revise or remove the many rules in the TPD that are pointless or counterproductive. Firstly, and most obviously, the U.K. should lift the ban on snus. This prohibition, with its origins in a 1980s U.K. moral panic over Skoal Bandits,6 has no scientific, ethical or pragmatic basis and is probably the worst piece of EU legislation ever written. The prohibition on claiming that “a particular tobacco product is less harmful than others” should be replaced as it is obviously unrealistic. Other areas for divergence could be those aspects of regulation that needlessly harass vapers or otherwise degrade the vaping experience and, in doing so, function as a de facto protection of the cigarette trade—for example, the limits on tank size and refill containers, insert leaflets, excessive warnings, limitations on nicotine strength, and the restrictions on transboundary advertising and online retailing. The U.K. has the means to shape a truly world-leading, risk-proportionate approach to tobacco and reduced-risk products.

    At least as important as rolling back poor regulation in the existing directive, the U.K. may choose to diverge to avoid even worse regulation that may lie ahead. By May 2021, the European Commission has to review the functioning of the 2014 TPD and, in light of that review, make proposals for new measures. Statements from European politicians and officials do not suggest that a pro-tobacco harm reduction epiphany is imminent, and vaping advocates can expect the next TPD to become more restrictive and intrusive, not less. For example, there may be restrictions on flavorings, packaging, ingredients or internet commerce. In pursuit of its “smoke-free 2030” goal, the U.K. could decline to implement counterproductive future measures.

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    But what will the U.K. actually do?

    You may have noticed a lot of use of “could,” “may” and “potentially” in the discussion above. This is because it is not yet clear if or how the U.K. would use its theoretical freedom to regulate unilaterally. This prompts a further series of questions.

    Will the U.K. ultimately have the option to diverge from the EU?

    Modern trade agreements do more than just eliminate tariffs and quotas; they also try to reduce nontariff barriers such as incompatible regulation. We do not yet know whether the U.K.’s eventual trade agreement with the EU will allow for divergence. The EU’s concern is to establish “a level playing field,” preventing the U.K. from competing with the EU by lowering environmental and labor standards or by allowing state subsidies that would lower the cost of production. That wouldn’t necessarily include the tobacco legislation, but it is still possible that the U.K. will agree to comply with EU tobacco regulation for one particular reason. This is that the TPD will continue to apply in Northern Ireland (part of the U.K.) as part of the peacekeeping effort to keep an open border between Northern Ireland and the Republic of Ireland (part of the EU). The problem for Prime Minister Johnson is that divergence from EU regulation hardens the inevitable internal border that forms between Northern Ireland and the rest of the U.K. And that, to say the least, is a political minefield.

    Even if the U.K. has the option to diverge, will it use it?

    There will be many advantages to remaining in step with the EU (for example, reducing trade friction and having a single set of business standards), so U.K. politicians will have to carefully weigh whether the costs of divergence will be worth the benefits. On the other hand, they also need to show that there was a purpose to Brexit and that better regulation is possible. But would they choose the highly controversial issue of tobacco policy to make the case for liberalizing regulation? I doubt it would be the first choice.

    Out of the room

    Leaving the EU means that U.K. officials and ministers are now excluded from developing legislation and policy at the EU level. It also means that the U.K. public no longer has elected Members of the European Parliament to appeal to if the EU institutions come up with terrible proposals.

    Yet because regulatory divergence will have costs, it is possible that the U.K. will continue to comply with these directives. Brexit will have impacts on the EU too. With the exit of the U.K., the pro-harm reduction movement in Europe has lost its strongest ally and the buttress against the “abstinence-only” policy. That will have knock-on effects internationally because the EU is a highly influential player in the World Health Organization Framework Convention on Tobacco Control. So, as the U.K. assumes its new independent status, it may find itself entangled with European Union regulation but no longer allowed in the room where the real decisions are made.