The EU’s attack on e-cigarettes will bring a golden age of vaping to an end

    9 October 2015

    Walking down most British high streets you could be forgiven for thinking that e-cigarettes are more common than tobacco. It’s a false impression. There are still more smokers than vapers, but more than anywhere else in the world, you see men and women clutching a variety of shiny vaping devices. I suspect only a handful of them are aware that their e-cigarettes will be snatched from them in a few months time as a result of EU regulations that are — even by the standards of Brussels — misguided, ill-considered and counter-productive.

    There are too many petty regulations contained in the Tobacco Products Directive (TPD) to list here. Suffice to say it will lead to most of the e-cigarettes on the British market being withdrawn from sale. Moreover, it will be the most popular type of e-cigarettes that will be affected. Disposable ‘first generation’ products, known as cigalikes, will be largely untouched by the new laws, but their market share is in decline and they are increasingly irrelevant except as a way for smokers to experiment with vaping. Cigalikes are simply not as good as the refillable tank systems that are the first choice of two-thirds of vapers.

    My own e-cigarette, like most of those seen in the hands of vapers up and down the country, could breach any number of laws by the time the TPD comes into effect next May. It is refillable but not leak-proof (there is no such thing as leak-proof). The tank can hold more than 2ml of fluid, as most refillables do. My e-cigarette fluid of choice does not sell in large enough quantities for the manufacturers to persist when expensive medicine-style tests are mandated. The bottle it comes in contains more than 10ml of fluid and is not tamper-proof (there is no such thing as tamper-proof). I could go on (and in this fact sheet, I do).

    In any case, the market is evolving so rapidly that my current e-cigarette will probably be old hat by next year. The pace of innovation is so rapid that the first e-cigarette I purchased in 2009 now looks like a relic of the inter-war years. Unfortunately, EU regulations will make it very difficult for companies to launch innovative, new and better products in the future. Even if manufacturers can afford to clear the regulatory hurdles they will struggle to let vapers know about it because the EU has also waved through an advertising ban. The TPD is full of pointless, consumer-hating, money-sapping bureaucracy of this sort. A product described by Prof David Nutt as the ‘greatest health advance since vaccinations’ will be suffocated.

    I genuinely don’t know whether I shall return to smoking full-time in May 2017 when the last of the stock from vaping’s brief golden age stock must be sold. I expect that I shall be well served by the mail order market, not to mention the black market, but getting the right fluid is a worry as I dislike 90 per cent of the flavours out there. I’m fairly sanguine about the possibility of returning to a 20-a-day habit. The growing number of venues that ban vaping — for no good reason — make smoking more appealing by the day.

    The ‘public health’ lobby has always given the impression that it cares more about my health than I do, so it is remarkable that they have engineered a situation in which smoking will become relatively more appealing than an alternative which, as a recent Public Health England report concluded, is 95 per cent safer. That report represented a decisive swing in the balance of power towards the pro-vaping faction of the ‘public health’ lobby. The anti-vaping extremists are not going down without a fight, but most health organisations in Britain now view e-cigarettes as a positive development.

    It is too little, too late, however. These groups were missing in action when the EU regulations were being discussed two years ago. The result is a Tobacco Products Directive which is effectively pro-smoking.

    Glimmers of hope remain. Civil servants do not have much wriggle room, but with some creativity of interpretation they could implement the TPD in a way that would cause the least damage. Moreover, Totally Wicked, an e-cigarette company, last week challenged the TPD in the European Court of Justice. Writing in the Times, Matt Ridley says they have an ‘excellent case’. Clive Bates, former director of Action on Smoking and Health and a leading expert on e-cigarettes, thinks the challenge is ‘very strong’.

    I have no way of assessing the merits of the case, let alone second guessing the outcome. It all comes down to whether the directive violates two of the EU’s supposedly cherished requirements — proportionality and subsidiarity. To my non-lawyerly mind, it is difficult to tell whether the legislation is proportionate because it is not obvious what it is trying to achieve. The stated objective is to improve the functioning of the common market. Banning online sales and erecting unnecessary and costly regulatory hurdles will not advance that objective.

    But facilitating free trade is only the stated objective. The unspoken objective is improving health. Since the EU has no legal competence over health policy, it tends to dress its nanny state legislation in the cloak of market harmonisation, but even as a health policy there is no trace of proportionality, subsidiarity or effectiveness. By making the market less competitive and reducing the appeal of products, the TPD is certain to disincentivise smokers from switching and will likely incentivise some vapers to return to smoking. The ends are so confused, and the means so counter-productive, that it is disproportionate by definition.

    As for the principle of subsidiarity — ie allowing member states to make their own decisions whenever possible — national governments are clearly capable of deciding how large an e-cigarette’s refill tank should be and how much nicotine the fluid should contain (there is currently no limit on either in the UK and no problems have been reported as a result). The common market is no more compromised by existing differences between member states’ regulation of vaping products than it is compromised by Britain’s preference for serving beer in pints.

    The TPD will hinder the common market and damage health, and yet its total failure to achieve either of its objectives will not necessarily be enough for Totally Wicked to win its case. The ECJ has a habit of siding with the European Commission. If the case fails, all is lost.

    Or perhaps not. There is one last avenue of hope. David Cameron will soon be attempting his renegotiations with the EU. He is unlikely to succeed in getting any concessions on core EU aims such as free movement of labour or ‘ever-closer union’, but if Brussels feels the need to toss him a bone it will be on relatively marginal issues such as fishing quotas and sugar tariffs. E-cigarette regulation should be added to his list.

    There is a precedent for this kind of negotiation. When Sweden was preparing to hold a referendum on EU membership in 1995, the prohibition of a smokeless tobacco product known as snus became such a sticking point for Swedish voters that the EU allowed them an exemption from the ban. Snus is exceptionally popular with Swedes and, given that they ultimately voted to join the EU by a wafer-thin majority of 51 per cent to 49 per cent, it is quite possible that the exemption secured their accession.

    The Swedish snus exemption continues to this day, making a mockery of market harmonisation but offering important (though largely unheeded) lessons for regulators of nicotine products. Like e-cigarettes, snus was said to act as a ‘gateway’ to smoking. Like e-cigarettes, it was claimed that snus appealed to children. There were fears about ‘dual use’. In the event, none of these scare stories stood up to scrutiny, but snus resembles e-cigarettes in being vastly safer than cigarettes and, 20 years after securing its opt-out from the smokeless tobacco ban, Sweden has by far the lowest smoking rate in Europe.

    The EU could have used the Tobacco Products Directive to legalise snus. Instead it has doubled down by launching an assault on another product that offers European smokers a gateway from cigarettes. There will be more than three million vapers by the time the EU snatches away their e-cigarettes. If the European courts uphold this dreadful legislation, there will be votes for any politician who comes to their defence.