It is with disappointment that we read the final outcome of the Court of Justice of the European Union clarifying that the revised Tobacco Products Directive, including Article 20 related specifically to e-cigarettes, is lawful. The stated goal of the revised TPD is to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health.
To that end, a revision of the TPD was subsequently passed by the EC to be made into legislation by the 28 Member States. Article 20 has been classified as burdensome and disproportionate by many. The Article 20 legal challenge sought to overturn the portion of the Directive related to e-cigarettes in order to make way for more proportionate regulation of the industry which would serve public health.
The resulting ruling from the CJEU places an undue burden on the industry that is predominantly made up of small business by enforcing a cumbersome, fragmented and expensive notification system for new and existing products that meet the stringent requirements of the Directive to reach the market.
With limits on cross-border sales - i.e. some Member States are set to prohibit cross-border sale - the directive enables the Member States to ensure that the rules on conformity are not circumvented - and additional "identified and potential risks" have led to the CJEU invoking an application of the precautionary principle that, unfortunately did not take into account the risks created by the Directive.
Despite two substantive reports on the evidence, along with appropriate guidance it is disappointing the CJEU has ruled against the challenge.
Sarah Jakes, NNA Trustee said:
"The Government's own impact assessment of the directive showed that there is a very real risk that the provisions which relate to e-cigarettes will deter smokers from switching to vaping and may push some vapers back to smoking. It is a very sad day when a government is 'forced' to implement law which will harm the health of its citizens."
The judgement in full can be read on the CJEU website.