TPD: The Prohibitionists' Directive

Posted on December 23, 2015

The advocate general of the EU's Court of Justice, Juliane Kokott, has released her opinion in relation to a number of challenges to the new Tobacco Products Directive. Kokott's opinion is not binding on the court itself, but past experience suggests the court is likely to follow it when it makes a formal decision next year. The news is not good for anyone who believes in personal choice.

Among the areas of the TPD under challenge were:

  • the standardisation of the labelling and packaging of tobacco products
    The TPD specifies that 65 per cent of the front, back and top of a cigarette pack must be made up of health warnings, plus 50 per cent of the sides. However, national governments can go further - as in the case of the UK - and demand further changes, including the removal of distinctive branding ('plain packs'). Kokott ruled the measure was proportionate in limiting the 'coolness or fun factor' of cigarettes.

  • the banning of flavoured cigarettes
    The Polish government had asked for an annulment of the provision to ban menthol cigarettes, which are popular in Poland. Kokott argues that there is 'a serious risk that flavoured cigarettes will facilitate initiation of tobacco consumption for non-smokers and make it more difficult for habitual smokers to escape nicotine addiction'. She claims: 'The necessity of an EU-wide prohibition on all characterising flavours, including menthol, cannot seriously be called into question, particularly in view of the precautionary principle and the standards of the WHO.' Kokott's job title is certainly apt - she is clearly acting as an 'advocate' of a particular view of the right of the EU to interfere in the minutiae of personal behaviour.

  • special rules for e-cigarettes
    Article 20 of the TPD demands, among other things, the registration of new products with a six-month standstill before being put on sale, a maximum nicotine strength of 20mg per ml, a limit on tank sizes and an advertising ban. Kokott claims 'it is not manifestly wrong or unreasonable to accept, in adopting internal market harmonisation measures, that e-cigarettes possibly cause risks to human health and that that product could — above all in the case of adolescents and young adults — develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption'. Except there is no evidence of e-cigarettes acting as a gateway to tobacco - quite the reverse. Millions of smokers have used e-cigarettes to either reduce the amount they smoke or replace smoking with vaping altogether. Kokott's decision flies in the face of the facts and will allow Article 20 to stifle an important new industry.

One thing that has been striking is the absence of critical comment about the e-cig regulations from anti-smoking groups - who have in the past year or so come out as tepidly favourable to e-cigarettes. Instead, they have been crowing about the support shown by Kokott for anti-tobacco measures. This very partial reaction to the advocate general's opinion is a pertinent reminder that groups like ASH and public-health bodies in general are not remotely interested in freedom of choice. They are obsessed with destroying any freedom to smoke. Any support for e-cigarettes is pragmatic and quite possibly temporary. It certainly doesn't run to the right to vape when and where we choose.

Vapers are largely motivated by concerns about health when switching from cigarettes to e-cigs, but that doesn't mean that arguments about health will really have much impact on anti-smoking groups. These groups are prohibitionists and the only real argument against them is to demand freedom of personal choice.

Image: No Vaping Sign, 6/2015, Starplex Cinema, by Mike Mozart via Wikimedia