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Swedish men on target to be first to completely stub out smoking
New Scientist 14 March 2017 pdfPDF
Smokeless tobacco is 95 percent safer than smoking: Study
Asian Age 19 June 2017 pdfPDF
Is smokeless tobacco safer than smoking?
Deccan Chronicle 19 June 2017 pdfPDF 
Smokeless tobacco is 95 percent safer than smoking: Study
The Siasat Daily 18 June 2017 pdfPDF 
Did you know that smokeless tobacco is 95 percent safer than smoking?
Hindustan Times 18 June 2017 pdfPDF 
Smokeless Tobacco is Less Lethal Than Smoking
Medindia 17 June 2017 pdfPDF 
Smokeless tobacco is 95% safer than smoking:  Study
India4u 17 June 2017 pdfPDF 
Smokeless tobacco is 95 percent safer than smoking: Study
newKerala.com 17 June 2017 pdfPDF 
Smokeless tobacco is 95 percent safer than smoking: Study
Zee news India 17 June 2017  pdfPDF  
Smokeless tobacco is 95 percent safer than smoking: Study
Business Standard 17 June 2017 pdfPDF
New Data Shows Low Risk Nicotine Product Snus Is 95% Safer Than Smoking
Science Newsline Medicine 16 June 2017 pdfPDF 
Smokeless tobacco is 95 percent safer than smoking: Study
Outlook India 16 June 2017 pdfPDF 
New data reveals potential of snus in reducing impact of tobacco-related diseases
News-Medical.net 16th June 2017 pdfPDF
New Data Shows Low Risk Nicotine Product Snus Is 95% Safer Than Smoking
Health Medicine Network 16 June 2017 pdfPDF
Forskare: Snus 95% säkrare än rökning
Dagens Hälsa 16 June 2017 pdfPDF  
Britter bakom snusförbud
tobak & mer 16 May 2017 pdfPDF
Potential Brexit boost for Snus
Planet of the Vapes 18 April 2017 pdfPDF 
pdf60 seconds on snus 
BMJ 1st February 2017 
NNA UK to join the battle against the snus ban
Vaping Post 29 January 2017 pdfPDF 
Snus Victory for the NNA
Planet of the Vapes 27 January 2017 pdfPDF 
NNA Scores victory on Snus in EU - Gerry Stimson Interview
NNA 27 January 2017 
Snus Gets A Day In Court, And Wins The First Round
Dick Puddlecote 27 January 2017 pdfPDF 
Snus Ban Stench To Be Aired In The High Court
Dick Puddlecote 26 January 2017 pdfPDF 
Snus - NNA wins first round of legal challenge
Factasia 25th January 2017 pdfPDF 
NNA joins UK High Court bid to overturn European snus ban
ECigIntelligence 25 January 2017 pdfPDF 
NNA asking for permission to intervene on the SNUS ban
Vaping Post 24 January pdfPDF 
Snus and the EU 
Facts do Matter 22 January 2017 pdfPDF  
Crackpot EU rule slammed for 'stopping British smokers quitting and increasing cancer'
Daily Express 26 January 2017 pdfPDF

More from the NNA on snus:

Leading experts implore the Swedish Govt to back Snus at COP7

Snus facts

NNA goes to the High Court to challenge the ban on snus

Snus ban challenge, NNA media releases, 26th January 2017

Update on the challenge to the ban on snus – next step, the European Court of Justice 

NNA snus ban challenge - update May 2017

NNA snus ban challenge - the legal case

Snus and the right to health 

The NNA legal case is the first time that a ‘right to health’ argument has been used to challenge a bad tobacco control law. We hope that this example might be a springboard for challenges in other countries.

NNA’s case to the European Court of Justice is based on EU law and the EU Charter of Fundamental Rights (CFR) [1]. Our argument is that the ban on snus is disproportionate, and that it is contrary to the human right to health. Given the evidence that snus is substantially safer than smoking cigarettes, and that it protects against smoking, it is both unethical and contrary to EU law to deny access to this product.

NNA supports the idea of ‘tobacco harm reduction’ as it is often formulated, in offering smokers and would-be smokers a low risk alternative to smoking. It is as an approach that is preferable to an abstinence only strategy, which is in effect a ‘quit or die’ approach.

NNA also supports the idea that many people like using nicotine and thus – especially if lower risk forms of nicotine are available - there must be major limitations on the ability of the state to interfere with that choice. Tobacco harm reduction recognises that many people find the use of nicotine pleasurable. This is reflected in our arguments that the ban on snus is contrary to the principles of autonomy and choice that flow from Articles 1 and 7 of the Charter of Fundamental Rights of the European Union (CFR).

Rights to health

Our thinking is as follows.

European states are obliged to further the health of their citizens. The preamble to the European Social Charter [2] states that: ’Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’ and Article 11 requires Parties to take measures to prevent disease and to encourage individual responsibility in matters of health.

Moreover, all EU law must take into account ‘health protection’. Facilitating a high level of health protection is required under Title XIV of the Treaty of Lisbon that ‘A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’. A high level of health protection is relevant to all EU legislation including the Tobacco Products Directive. We have argued in our submission to the High Court and the European Court of Justice that health protection includes not only protection from health threats but also includes enabling people to make choices that help them avoid ill-health.

We thus base our argument on an interpretation of Article 35 of the CFR that a high level of health protection must allow access to snus.

A similar argument may be made on the basis of other international treaty obligations.

The relevant obligation is Article 12 of the International Covenant on Economic, Social and Cultural Rights [3], which has been ratified by 165 countries including all EU states. Article 12 recognizes: ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ and that States Parties must take steps regarding ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases.’ This has been interpreted by the UN Special Rapporteur on the Right to Health to include access to harm reduction resources for people who use drugs [4]. We similarly argue that Article 12 includes access to tobacco harm reduction resources, ie safer nicotine products.

Tobacco harm reduction is consistent with obligations in the international treaty on tobacco control. All European Union states are signatories to the Framework Convention on Tobacco Control (FCTC), the international health treaty that aims to reduce the use of tobacco [5]. The preamble to the FCTC notes obligations (as mentioned above) under the Article 12 of the International Covenant on Economic, Social and Cultural Rights. Moreover Article 1d of the FCTC specifically refers to harm reduction as one of the defining strategies of tobacco control, which is: ‘a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke’.

As mentioned above the European Social Charter requires states to encourage individual responsibility in matters of health. This view links to a basic principle of public health, which is one of creating the conditions in which people can lead healthier lives. In particular, as stated in the constitution of the World Health Organisation [6], that: ‘Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people.’ [6]  Empowering individuals and communities to take control of their health is a fundamental principle of public health, as set out in the Ottawa Charter on Health Promotion [7].

Tobacco harm reduction is consistent with the broad public health aim of enabling people to take action to reduce risks to their health. They cannot do that unless they have access to the resources that help them do this. That is why a ban on snus is inconsistent with helping people to lead healthier lives. Snus has to be legalised because snus saves lives.

Gerry Stimson
Chair, New Nicotine Alliance

[1] Charter of Fundamental Rights of the European Union (2000/C 364/01)

[2] European Social Charter https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007cf93

[3] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[4] Open Letter by the Special Rapporteur on the right of everyone to the highest attainable standard of mental and physical health, Dainius Pūras, in the context of the preparations for the UN General Assembly Special Session on the Drug Problem (UNGASS), which will take place in New York in April 2016. http://www.ohchr.org/Documents/Issues/Health/SRLetterUNGASS7Dec2015.pdf

[5] Framework Convention on Tobacco Control http://www.who.int/fctc/text_download/en/

[6] Constitution of the World Health Organisation http://www.who.int/governance/eb/who_constitution_en.pdf

[7] Ottawa Charter on Health Promotion. World Health Organization 1986. http://www.who.int/healthpromotion/conferences/previous/ottawa/en/  

 

 

More from the NNA on snus:

Leading experts implore the Swedish Govt to back Snus at COP7

Snus facts

NNA goes to the High Court to challenge the ban on snus

Snus ban challenge, NNA media releases, 26th January 2017

Update on the challenge to the ban on snus – next step, the European Court of Justice 

NNA snus ban challenge - update May 2017

NNA snus ban challenge - the legal case

Snus campaign media coverage 

 

European Court of Justice sends legal arguments out for comment

More progress with our case against the ban on snus: the European Court of Justice has now sent the legal arguments out for comment.

In January the High Court in London ruled that Swedish Match and NNA could take their challenge against the UK and EU ban on snus to the European Court of Justice, in Luxembourg.

The documents setting out the legal arguments were agreed between Swedish Match, the UK Department of Health (as defendant) and NNA, approved by the High Court and sent to the European Court of Justice. You can view them here

This first stage is in itself a major success: there are few referrals to the ECJ, and even fewer involving an NGO such as NNA.

The ECJ has now requested comments on the legal issues (see below).

The Swedish Match legal challenge against the ban on snus

Swedish Match – the main manufacturer of Swedish snus – brought the challenge in the UK High Court. Their legal argument is that the law discriminates against snus compared with cigarettes and with lower risk nicotine products, that the ban is disproportionate, is against the EU principle of subsidiarity in removing national regulatory discretion, breaches the duty to give reasons for the ban, and is an unjustified restriction on the free movement of goods.

The NNA legal challenge against the ban on snus

NNA is acting as a third party in the public interest – in legal terms it is an independent ‘intervenor’.

NNA argues that the ban on snus is (a) disproportionate in that it is incommensurate given the low risk of snus compared other products on the market, and (b) contravenes the right under EU law to a high level of health protection.

Significantly, for the first time in a challenge against UK (and EU) tobacco legislation, NNA argues that the ban infringes human rights. NNA argues that the ban contravenes the EU Charter of the Fundamental Rights with respect to Art 1 on ‘human dignity’, Art 7 on ‘respect for private and family life’, and Art 35 on ‘health care’.

Art 35 stipulates that a high level of human health protection shall be ensured in the EU policies and activities. NNA argues that the snus ban is wrong as it prevents smokers from having access to a safer product and is an unsuitable means for achieving a high level of health protection. We consider that the EU legislators misinterpret health protection as meaning only protection from risks from products, whereas it should have considered a product such as snus in helping people to protect themselves from risks through the choices they can make to avoid smoking.

See here for more details of NNA’s legal case and the documents filed in the High Court.

Progress with the case

The High Court agreed on Jan 26th 2017 that there was a case for a review of the legislation. NNA’s request to be joined to the case was allowed by the High Court.

Because the UK law – the Tobacco and Related Products Regulations 2016 – is based on the EU Tobacco Products Directive 2014, the case was referred by the High Court to the European Court of Justice. 

The ECJ has initiated the first steps in the legal review (case C151/17).

The ECJ has now sent out the case for comment to EU member states, the European Commission, Parliament and Council, and EFTA states. All these parties are able to make a submission to the ECJ commenting on the legal issues that we have raised: their comments have to be received by ECJ by 7th July.

When comments have been received back they will be reviewed by the court. It is likely that the actual case will be heard in Luxembourg at the end of the year or the beginning of next year.

Implications of the case

  • The ECJ ruling will apply across the EU, not just the UK
  • Referrals to the ECJ are uncommon – to get this far is a significant achievement for an NGO. 
  • For the first time a ‘right to health argument’ has been lodged as a challenge to tobacco control legislation.


For more details of the argument that the ban on snus infringes the right to health see here

Watch this space!

 

European Court of Justice letter

 Preliminary reference letter

 

High Court letter

 High Court letter with ECJ stamp

 

More from the NNA on snus:

Leading experts implore the Swedish Govt to back Snus at COP7

Snus facts

NNA goes to the High Court to challenge the ban on snus

Snus ban challenge, NNA media releases, 26th January 2017

Update on the challenge to the ban on snus – next step, the European Court of Justice

NNA snus ban challenge - the legal case 

Snus and the right to health

Snus campaign media coverage 

 

NNA contends that snus fulfils the criteria for a tobacco harm reduction product and hence should be available in the UK. The legal ban on snus denies smokers of the choice of a much safer nicotine product than cigarettes.

The introduction of snus into the United Kingdom would form part of a coherent strategy of tobacco harm reduction that help people avoid smoking. The current scientific evidence, and the fact that Sweden, where snus is used, now has the lowest lung cancer and tobacco-related mortality in Europe, indicates that snus is a suitable and appropriate product for individuals who are seeking to avoid smoking and other combustible tobacco products.

The rapid rise in the popularity of electronic cigarettes, a grass roots consumer driven phenomenon, shows that many smokers want to avoid smoking-related harms. There is the potential to reduce smoking when acceptable products are available to consumers; such uptake being at no cost to public funds.

The NNA submits that the ban on snus is disproportionate given the low risk of snus compared with other nicotine products. It is an unsuitable means by which to achieve the aim of public health protection because it removes from consumers the option to use a safer nicotine product.

NNA also contends that the ban on snus infringes the human right to health. The availability of snus is an aspect of personal health and personal autonomy by which consumers can avoid the health hazards of smoking. The ban on tobacco for oral use limits smokers’ choice of safer alternatives, by excluding a product that is significantly less harmful to health than cigarettes. The NNA therefore submits that the ban on snus engages issues under European law, in particular those articles in the Charter of Fundamental Rights of the European Union (CFR) that protect autonomy and choice - Articles 1 (human dignity), Article 7 (respect for private and family life) and Article 35 (health care).

Human dignity

Article 1 of the CFR is an overall obligation to respect human rights, and protects ‘human dignity’. The issue of dignity is linked to personal autonomy: a principle by which individuals make choices on the conduct of their life, which presupposes a range of choices.

Respect for private and family life

Article 7 on ‘respect for private and family life’ is a broad-ranging right that is often closely connected with other rights including autonomy such as freedom of religion, freedom of expression, freedom of association and the right to respect for property. Article 7 has been held to apply to issues of quality of life, self- determination, a right to establish relationships, self-identity, choices in relation to medical treatments to prolong life, and decisions on parenthood by insemination techniques.

Health protection

The EU Charter of Fundamental Rights stipulates in Article 35 that a high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities. NNA argues that the EU legislators based the law on a limited understanding of ‘health protection’ in violation of Article 35. By banning tobacco for oral use, the EU prevents access to a product that significantly reduces harm to consumers as compared to cigarettes. The EU legislators, we believe, took a narrow definition of ‘health protection’ to mean protection from products, whereas it should have taken a broader public health definition to include making it possible for people to take action to avoid ill-health through the choices they make.


Further information

The NNA submission to the High Court can be found here, along with supporting expert and witness statements from Gerry Stimson, Karl Lund, Louise Ross and Judy Gibson.

 

More from the NNA on snus:

Leading experts implore the Swedish Govt to back Snus at COP7

Snus facts

NNA goes to the High Court to challenge the ban on snus

Snus ban challenge, NNA media releases, 26th January 2017

Update on the challenge to the ban on snus – next step, the European Court of Justice 

NNA snus ban challenge - update May 2017

Snus and the right to health 

Snus campaign media coverage 

NNA calls on UK parties to repeal arbitrary restrictions on e-cigarettes and snus

We have written to the major UK political parties to urge them to include this in their election manifestos:

“We will help Britain’s 9 million smokers switch to healthier alternatives by removing unnecessary restrictions on e-cigarette advertising, tank and refill sizes, strength of liquids, and by ending the ban on snus as soon as we have left the EU. “

However, a lot more pressure is needed. The parties need to know that vapers are voters who are unhappy with the TPD.

Please write to your representative. You can use the Write to Them website to find your MP, MSP or AM and to email them too. Contact us at This email address is being protected from spambots. You need JavaScript enabled to view it. or @NNAlliance on Twitter to let us know how you get on.

This is what we sent to the parties (along with the manifesto wording, above):

Brexit removes the excuse for political parties to avoid reforming the worst elements of current anti-smoking policies many of which come into force on Saturday 20 May.

Particular anger among the 2.8 million UK e-cigarette users has been caused by the EU's arbitrary restrictions on their devices which have no benefit but which make them less convenient to use. These include maximum tank and refill sizes and a much reduced limit on the maximum concentration of nicotine in e-liquid consumers can purchase. Disproportionate restrictions on e-cigarette advertising were introduced in May 2016.

Also of deep concern is the ban on the Swedish smoking substitute snus. As the New Scientist reported in March this product is the key to Sweden’s huge lead in the EU in reducing smoking. The Spectator wrote that “if we want to benefit from Brexit the first thing that we should do is make snus legal”.

E-cigarettes and snus help prevent smoking and smoking-related disease at no cost to the exchequer.

 

The UK election offers a golden opportunity to encourage legislative change.  Don’t waste this chance.