Electronic cigarette users and representatives of electronic cigarette manufacturers demonstrate, on October 7, 2013, in front of the European Parliament in Strasbourg, eastern France, to protest against an European parliament bill aiming at classifying this item as a drug. AFP PHOTO/FREDERICK FLORIN (Photo credit should read FREDERICK FLORIN/AFP/Getty Images)

    A triumph of the busybodies: the EU begins its crackdown on smokers and vapers

    19 May 2017

    One day last summer I walked into my local e-cigarette shop and bought their entire stock of my favourite vape juice. For good measure, I also bought their entire stock of the same flavour in a higher nicotine concentration and 10 bottles of the same flavour with zero nicotine to be mixed at home.

    It cost me the best part of £300, but I knew it was my last chance. On previous visits, I had noticed the shelves getting barer. Less popular flavours like mine were being discontinued, so I bought the lot. The stock has never been replenished and I have bought nothing from them since.

    I’m not alone in having my preferred flavour withdrawn. Under the EU’s Tobacco Products Directive, which comes into full force tomorrow, every flavour has to be officially approved and certified. As this is an expensive process, it makes financial sense for companies to discontinue their less popular lines rather than deal with the red tape.

    I finished the last 15ml bottle this week, just in time for the EU laws to fully kick in. From tomorrow, it will be a criminal offence to sell vape juice in any container larger than 10ml because, er, something or other. If I want to replace my e-cigarette, I won’t be able to do so in any EU country as its tank can hold more than 2ml of fluid and that presumably poses a threat to somebody somewhere. If I want to buy relatively strong vape juice (over two per cent nicotine), I’ll have to order it from outside the EU because, erm, think of the children or something.

    There has never been any coherent explanation for the creation of these seemingly random criminal offences. It was never clear what problem the EU was trying to solve. There was simply an assumption that the vaping scene was an unregulated free-for-all which could only benefit from a good old EU directive. The regulations didn’t have to serve a purpose — any old idea thrown up by anti-vaping lobbyists and ‘public health’ busybodies would do — they only had to exist.

    Opponents of vaping like to equate the e-cigarette market with ‘the Wild West’. This ignores the numerous consumer regulations that e-cigarette vendors and manufacturers have to abide by, but it also misses the point. What they call a ‘Wild West’ is — or was — a well-functioning, competitive free market which has resulted in 1.5 million British smokers quitting cigarettes without taxpayers having to pay a penny. If that is the Wild West, let’s have more of it.

    E-cigarettes are overwhelmingly used by smokers and ex-smokers. Vaping is a substitute for smoking and e-cigarettes are a substitute for tobacco. As substitute goods, any regulations that reduce demand for e-cigarettes are going to increase demand for tobacco. This is basic economics and it is why the EU’s legislation is not only wrong-headed, but actually counter-productive.

    By the same token, anything that reduces for demand for tobacco is going to increase demand for e-cigarettes. Saturday is a big day for smokers too. So what is the Tobacco Products Directive doing about tobacco?

    If you live in the UK, you won’t notice much of a difference. As the recently published Nanny State Index shows, Britain is streets ahead of most EU countries when it comes to harassing smokers. The EU now mandates graphic warnings on cigarette packets, but we’ve had them since 2008 and so we’re going further and introducing plain packaging. The ‘plain’ packs have been gradually hitting the streets for a few months but retailers have had a year to sell their branded stock. If they sell an old pack after tomorrow, they could get two years in prison. This seems a little harsh to me, but then I’m not an anti-smoking zealot.

    All the smokers I know have reacted to the new packs with a shrug of the shoulders. The notion that changing the colour of the pack will reduce the appeal of what’s inside is as risible as it ever was and some of the new graphic warnings cause genuine mirth (the baby with the cigarette dummy is a particular favourite). The French government recently admitted that cigarette sales rose after it introduced plain packaging, mirroring a similar rise in tobacco sales in Australia when the policy was first introduced. One possible explanation for this is that consumers drift towards cheaper brands when premium brands lose their identity and then find that they can afford to smoke more of them. Time will tell whether we see the same unintended consequences in Britain.

    The EU can’t be held responsible for plain packaging, but it is to blame for the other major change that kicks in tomorrow. In its infinite wisdom, it has decided to ban the sale of 10-packs of cigarettes and small pouches of tobacco. If you buy your rolling tobacco in 10 gram pouches, from tomorrow you will have to buy three times as much.

    If you’ve ever smoked, or have some understanding of human behaviour, you will see the problem with this. When David Cameron was told about the EU’s plans in 2013 he conceded that banning packs of 10 ‘does not, on the face of it, sound a very sensible approach’. Smokers buy small packs when they are trying to cut down. They are a mechanism for self-constraint. Some behavioural economists, such as Nudge’s co-author Cass Sunstein, believe that it should be mandatory for tobacco companies to sell cigarettes in packs of 10 for this reason. The EU has decided to do the exact opposite and force companies to only sell cigarettes in packs of 20.

    If the aim is to reduce consumption, forcing consumers to buy large quantities is an odd way to go about it. At a time when Public Health England is shrinking portions of food to tackle obesity, the EU is super-sizing tobacco products. As Martin Dockrell of Action on Smoking and Health (ASH) says: ‘People buy smaller pack sizes such as 10s when they are attempting to reduce their tobacco consumption and quit. If you wanted people to lose weight you wouldn’t take away fun-sized chocolate bars and only sell jumbos.’ Alas, that quote is from 2008 and Dockrell has since got himself a job at Public Health England. Neither ASH nor Public Health England has criticised the policy since the EU adopted it.

    So there we have it. Smaller bottles of vape juice, larger packets of tobacco and a policy that has led to a surge in cigarette sales in the two other countries to have tried it. After several years of debate and millions of pounds of taxpayers’ money down the drain, this is not the ideal outcome — and that’s before we factor in all the money that will now be spent trying to prove that it’s been worth it. As for me, I’m still in the market for some decent vape juice.