UK E-Cig Company Takes On European Union Over Contested Article of Tobacco Directive

Posted by: Vranks on September 30, 2015 Under: E-Cig News

In little over a year, the European Union’s Tobacco Directive will come into effect, with substantial restrictions on electronic cigarettes, and right now there’s only one thing that has a shot of stopping it – a legal challenge launched by UK-based company Totally Wicked. They will present their case to the Court of Justice of the European Union, on October 1st, 2015.

From a logical standpoint, Totally Wicked has a great case. Virtually everyone agrees that smoking is the most significant yet preventable cause of death in the western world, yet the requirements of the EU Tobacco Directive section dealing with electronic cigarettes and other vaping products – known as Article 20 – are actually more stringent than those that currently apply to cigarettes.

For example, cigarette companies have to test their products for just three things: tar, carbon dioxide and nicotine. There are around 7,000 chemicals in tobacco smoke, a lot of which are known carcinogens or in some way toxic to the human body, but they don’t have to be tested or listed anywhere. According to Article 20 of the new Tobacco Directive, electronic cigarette and e-liquid makers will have to measure and list “all ingredients contained in, and emissions resulting from the use of, the product, by brand name and type” — including toxicological data — even though the scientific consensus is that vaping is considerably less dangerous than smoking. Most small companies won’t even afford to pay for such a detailed analysis and will effectively be put out of business.

Another preposterous requirement of the European TPD is that e-cigarettes must deliver a consistent dose of nicotine under normal conditions of use, even though such technology hasn’t been invented yet. The dosage delivered depends on the nicotine demands of the user and the manner of use. In a letter sent by a group of medical experts to the European Commission in 2014, they argued that “individual users of the same electronic cigarette differ in their nicotine intake 20-fold. Quality control of individual brands is needed to ensure consistency of nicotine content, but ensuring consistent delivery makes little sense.” Oh, and did I mention that no such demands have ever been made concerning tobacco cigarettes and other tobacco products…

The new EU law will also ban e-liquids with a nicotine concentration of over 20 mg/ml, completely ignoring the fact that former heavy smokers require a higher dose of nicotine to keep their dependence in  check. As Totally Wicked explains “electronic cigarettes are very different from ordinary cigarettes in their composition and mode of operation. So it takes longer for the nicotine ingested in vapor form to metabolise into the user’s bloodstream. This does not mean that e-cigarettes are ineffective, they just work differently to conventional tobacco products. A much higher quantity of nicotine is required in the e-liquid contained within an e-cigarette to bring about equivalence with, for example, the 2 mg metabolised intake of nicotine from a tobacco cigarette”

Not to mention that this requirement is again more stringent for e-cigs than for tobacco cigarettes. You see, a pack of cigarettes features the “nicotine content” of those cigarettes, but it is not really the “physical” quantity of nicotine contained within the pack of cigarettes, or in an individual tobacco cigarette. That figure is the nicotine yield – the amount of metabolised nicotine delivered in the user’s bloodstream upon smoking one of those cigarettes. The actual nicotine content in a cigarette may be much higher. For example, if the metabolised nicotine yield of a cigarette is 2 mg, its actual nicotine content may be nearer 20 mg. Obviously, the same principle does not apply to electronic cigarettes.

There are lost of other bad and unfair things that are going to happen if the EU tobacco directive becomes law – which will certainly happen if Totally Wicked’s legal action fails – but you can read about them in the company’s detailed Statement of Facts and Grounds. I just wanted to point out some of the key elements that prove European legislators either had a separate agenda, or just had no clue of what they were doing when they came up with these ridiculous requirements.

The former seems more likely though, considering how things played out in the last year. In October 2014, encouraged by growing evidence of e-cigarettes’ smaller health risks compared to smoking and pushed by the outcry of consumers, the European Parliament voted to regulate electronic cigarettes as consumer products. It was a great victory celebrated both by the entire vaping community and numerous scientists and health experts who realized its positive effect on public health.

But then something strange happened. Over the following months, the European Commission and European Council agreed to veto the Parliament’s decision  – and the voice of the people – and came up with a completely new Tobacco Directive for electronic cigarettes, one that completely ignored law-making principles as well as the overwhelming scientific evidence of e-cigarettes’ reduced health risks. The new document was presented once again to the Parliament, with the threat of having to start the process all over again in the case of a negative vote. And that’s how the new Tobacco Directive came to be.

As I mentioned, this legal challenge by Totally Wicked is the only chance we have of dodging the bullet, so to speak. Once passed as law, it will be illegal for a member country not to implement it, and annulling it would require all 28 member countries agreeing. As The Times columnist Matt Riley notes, “that won’t happen”. Oh, and there is always the option of somehow convincing your country to leave the EU, if you want to give it a go. But other than that…

However, if the Court of Justice of the European Union actually listens to reason and rules in favor of Totally Wicked, the Tobacco Directive HAS to be changed. Then, we are likely to get an intelligently revised directive that focuses on quality control, age limit and proper labeling, instead of effectively banning the vast majority of advanced devices  – thus handing the market to Big Tobacco and their obsolete cigalikes – hindering technological advancements and, most importantly, handing millions of people a potential death sentence by pushing them back to smoking.

Fingers crossed, guys!