The EU Just Keeps Invading the Tobacco Market

Bill Wirtz

On May 10th, the Conseil d'Etat, the highest administrative court in France, decided to ask for clarifications from the European Union Court of Justice regarding the recent EU Tobacco Products Directive.

This directive attempts to crack down on tobacco sales by legislating larger health warnings, banning packs with under 20 cigarettes, banning characterising flavors (such as menthol or vanilla), replacing the mandatory indication of nicotine degrees with a new warning label on the health hazards associated with smoking, and standardizing the shape of all packs, as well as implementing onerous regulations on the sale of e-cigarettes.

Cigar, tobacco, and e-cigarette manufacturers want their products to be recognizable. The EU disagrees.The case was brought by cigar, tobacco, and e-cigarette manufacturers, and tobacco vendors who see some parts of the directive as an infringement on their right to ownership, especially if “the trademark has acquired a notoriety which has rendered it indelibly associated with the product which it designates.” Their objection is basically “We want our products to be recognizable.” Legally, there is considerable doubt towards the directive regarding whether it can be considered proportional, easy to understand, and predictable – the pillars of lawmaking.

Similar cases have already been disputed on the local level. In Europe, Germany is one of the few countries that still allows advertisement for tobacco products in sampling, outside billboards, and in the cinema. Recently, however, the German government has decided to ban both sampling and billboards, while restricting cinema ads to those preceding movies rated 18+ (surely they’re aware that movies rated 18+ made up two percent of all movies in the last five years, thereby effectively banning the ads from theaters).

What about Freedom of Speech?

Legal experts intend to dispute this new legislation. In fact, German constitutional expert Prof. Dr. Christoph Degenhart sees the law as an infringement on freedom of speech:

Considering existing and extensive regulation [of tobacco products], further restriction of tobacco advertisements would be unconstitutional. This is especially true for outside ads, ads in cinemas, ads at the point of sale and sampling. The WHO Framework on Tobacco Control (FCTC) indicated no obligation to implement such bans. A federal law would, therefore, be beyond the competence of the federal government.

Unfortunately, the anti-tobacco dogma of the last few years has made lawmakers indifferent towards their infringement on people's lifestyles, or, in this case, freedom of speech.

The problem here is that European countries are already far from being free-speech absolutists: if tobacco ads aren't free speech, then shouldn’t whiskey ads also be illegal? In Europe, asserting that this leads to a slippery slope is not a stretch: in France, companies selling foods containing fat, salt, and sugar are required by law since 2007 to add written or spoken warning messages explaining that their products are unhealthy and telling people to stop snacking and start exercising.

Next up, Vaping

It's not only a problem that tobacco brands that have been selling their products for years are not allowed to put their own logo on their products. These regulations have become excessive: long years of regulation and high taxes have put immense costs on the consumer and small businesses (mostly tobacconists). The European smoking population has hovered steadily around 20 percent. That includes only daily smokers, so one can safely assume that actual numbers of people affected by these regulations are slightly higher.

In response to continued legal attacks on smoking and evidence of smoking's health effects, vaping has revolutionized the tobacco industry. In fact, many smokers have already switched.

Unfortunately for the vaping industry, where there is innovation on the market, regulation is soon to follow. As expected, the European Union cracked down on e-cigs in 2012, after they had entered the market in Europe in 2007, by limiting container capacity and the size of refill packs, weakening potency, making what the directive calls “child-proof packs” compulsory, regularly investigating producers, and opening the door to a complete EU-wide ban.

Vaping has proven to be an easy and effective way to quit smoking. Furthermore, its health effects are not comparable to regular tobacco, and studies on the consumption of nicotine liquids by children have been disproven. Researchers are suggesting that the emergence of e-cigarettes is likely to be related to the rapid decline in youth smoking. A 2014 article in the journal Therapeutic Advances in Drug Safety supports this:

ECs are a revolutionary product in tobacco harm reduction. Although they emit vapor, which resembles smoke, there is literally no fire (combustion) and no ‘fire’ (suspicion or evidence that they may be the cause for disease in a similar way to tobacco cigarettes). Due to their unique characteristics, ECs represent a historical opportunity to save millions of lives and significantly reduce the burden of smoking-related diseases worldwide.

The simultaneous crackdown on both freedom of speech and freedom of choice through this directive is emblematic of Europe’s anti-tobacco policy. It limits the range in which individuals make their own choices while providing no added benefit to the health of the general public.

Instead of cracking down on companies marketing their products and limiting innovation in the e-cigarette market, the EU should rethink its nanny-state policy: not only does it limit the freedom of individuals, it can also, in the long run, help cultivate a dangerous black market.

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