September 26th, 2015

Totally Wicked legal challenge to the Tobacco Products Directive e-cigarette measures

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Where the hubris and ignorance of European Union legislators is brought painfully to account

This page explains the Totally Wicked legal action against the European Union Tobacco Products Directive, Article 20 – the section that deal with e-cigarettes.

Update. The Totally Wicked case was dismissed on 4th May 2016. No appeal is possible.

Final Update: predictably on 4 May 2016, the judgement was announced and Totally Wicked’s case rejected in full. See judgement in case C‑477/14. No appeal is possible.  The basic problem is that the law depends on the science, bad science makes bad law, and the Commission and members states drew on bad science to defend this completely counterproductive law.  The court did add any value or interrogate the science.  The court has defended the status quo and the cigarette trade and shaped the e-cigarette market for the convenience of the tobacco companies. See Totally Wicked press statement.  The court also settled the cases brought by the tobacco companies and Poland in favour of the directive.

The Court’s press release is available here and links to each judgment are provided below:

Update 23 December 2015: Advocate General issues her opinion declaring the directive to be sound. This is to inform the judges who will make the final decision. Her reasoning is based on poor science and I provide a critique here: Totally Wicked case: Advocate General’s flawed reasoning would protect the cigarette trade

Update 1st Oct 2015: Totally Wicked’s arguments are heard in court, along with objections from UK, France, Spain and the EU institutions – i.e formidable opposition.  Totally Wicked provides a guide to the process in the case.

Update 29 Sept 2015: Petition handed to Department of Health with 71,095 signatures. My speech:

Update 26 Sept 2015: read the English High Court’s very positive assessment of the merits of the case, in its referral to the European Court (especially para 12-44), written by Mr Justice Green.

Update 25 Sept 2015: Totally Wicked Press statement – European Court update – in advance of the hearing, provides an overview of the damage this legislation will do.

Update 10 Sept 2015: Court hearing for Totally Wicked case C-477/14 will be 1st October 2015 and is expected to last one day. PMI/BAT case C-547-14 will be heard on the same day, and the Polish case C-358/14 the day before, 30th Sept.

Background:  TPD Article 20 text and related provisions >  What’s wrong the EU tobacco directive for e-cigarettes > Tobacco Product Directive – what next and what can be done

Update: support the Totally Wicked case here. Over 60,000 supporters at 26 Sept. Petition to be submitted 29 Sept 2016.

In October 2014, a legal challenge by Totally Wicked, an e-cigarette vendor, to Article 20 (electronic cigarettes) of the EU Tobacco Products Directive was referred from the English High Court of Justice – Administrative Court to the Court of Justice of the European Union (CJEU).  The English Court cannot overturn EU legislation, so it seeks guidance from the European Court, which rules on the lawfulness of EU legislation under the EU treaties.  The EU treaties act like a constitution and place constraints on what the EU institutions can do.

It’s a good moment to look at what the case involves – so here is a briefing for the non-lawyer.

Key documents

I have obtained two key documents from the case in which you can read the case in detail (warning: quite hard going). This briefing is the easier way into it…

  1. Totally Wicked’s Statement of Facts and Grounds. This contains the meat of the complaint, and case to have the issues heard at the ECJ (45 pages – 4.5mb scanned PDF).
  2. The Secretary of State’s Summary Grounds for Contesting the Complaint. This is mostly procedural – it doesn’t actually give the government’s substantive response, just says that it does contest the complaint.

See legal documentation on Totally Wicked’s dedicated site.

Update 26 Sept 2015. The English High Court’s referral to the European Court provides a very good summary of the legal argument.

Background

The rule of law. Firstly, no-one should be surprised or scandalised about this case or think of it as somehow sinister ‘industry tactics’. The argument that the TPD legislation and the process of making it were unlawful has been pretty compelling from October 2013 onwards: see for example Flawed Science, Irregular Procedure, Unlawful Measures and Making Bad Law: legal vulnerabilities in the tobacco directive.  Any firm or citizen has the right to expect governments and legislators to uphold the ‘rule of law‘ and this applies to the laws governing law-making in the EU.  It means that the EU legislature cannot just do what it likes when it agrees a directive. It has to comply with the European Union’s main ‘constitutional treaties’ and conventions – just as the US Congress cannot make laws that breach the Constitution.  In this case, the relevant European treaties are:

These establish a number of principles that can be used to test whether specific measures included in a directive are compatible with European treaties.  The principles themselves are quite broad and high level, so the court also relies on case law to apply precedents that have been set in previous cases.

Process. The Totally Wicked (TW) case uses a particular route to access the ECJ.

  • TW initiated judicial review proceedings against the Secretary of State for Health in England, arguing that it would be unlawful for the government to bring in implementing regulations for the directive (as required under Article 29 TPD), because the provisions of Article 20 are unlawful under the EU treaties. TW knows that this cannot be settled in the High Court in London, so asks for the key issues to be referred to the ECJ under process described in Article 267 TFEU.
  • The Department of Health has accepted that there is a case to answer (though please note it does not accept that the directive is unlawful).  It was common ground between TW and the Government that the questions should be put to the ECJ – and with a view to getting a clear decision as quickly as possible.  Some commentators misread that as ‘supporting the case’ – in reality the government supports the process of resolving the case quickly.
  • The government has not made the case for the defence in detail at this stage.  The detailed defence will be made in front of the ECJ – and probably by the Commission.
  • The ECJ will make a ‘preliminary ruling’ that will decide on the answers to the questions it has received from the High Court.  This will determine the lawfulness of the Directive.
  • TW are expecting resolution within 12 months and hoping for nine months (i.e. mid to late 2015). The main provisions of the directive apply from 20 May 2016.
  • The ECJ could strike out all of Article 20 or specific provisions within the article.

Grounds for challenge – principles

The TW case rests on challenge using the following principles:

1. Principle of proportionality in conjunction with principle of legal certainty;

2. Principle of equality (non-discrimination)

3. Principle of subsidiarity

4. Right to property and to run a business under the Charter of Fundamental Rights.

More discussion of these principles is available in: Making bad law – legal vulnerabilities in the tobacco directive.   Most of the case rests on demonstrating violations of the principle of proportionality – i.e. that the measures don’t contribute to meeting or are more burdensome than necessary to meet the policy objective, namely free movement of goods with a high level of health protection.  It is important to understand that the directive is justified under the EU treaties as a measure to develop the internal market.

Grounds for challenge – specifics

I’ll go through the ‘grounds’ part of the statement of facts and grounds giving a (non-legal) summary by paragraph number. For reference to the directive, see the text of Article 20 2014/40/EU.

1. Principle of proportionality and legal certainty

51-54 explains that proportionality requires that legislation must be suitable for the purpose of achieving its desired objective and must not go beyond what is necessary to achieve it. Recognises that the ECJ allows some discretion in how this is achieved, but does not absolve the legislature of this responsibility.

55-58 argues that meeting this proportionality requirement necessarily requires an impact assessment, and notes that none was done because the text is a compromise forged in the trilogue process and bears no relation to the options considered in the Commission’s original impact assessment. To the extent there is any similarity with the options assessed by the Commission, these options were dismissed.

59-61 demonstrates that e-cigarettes are not medicines and that numerous standard consumer protection, health and safety regulations already apply.

62-71 asserts that the legislature was proceeding with an implicit assumption that e-cigarettes pose an equivalent risk to cigarettes and so should be regulated accordingly.  The case then draws on several scientific citations from leading figures to show this is wrong by a large margin.

72-75 draws on the exchanges between 15 expert scientists in this field and the European Commission in January 2014 [letter: Scientific Errors in the Tobacco Products Directive and subsequent exchanges and direct challenge to the Commission by a scientist cited: Please Do Not Distort My Words To Justify Your Policy] to pile further scorn on the scientific underpinning of the directive.

76-77 covers Article 20(2) – the notification regime. Argues that the 6 month notification period serves no useful purpose but is a drag on innovation, and that setting standards should suffice instead.  Argues that the notification regime calls for a lot of pointless information, especially in relation to ‘dose’, ‘uptake’, ’emissions’ and ‘addictiveness’ – as these all vary markedly depending on the user’s behaviour and desired nicotine consumption.

78-86 covers Article 20(3) – technical requirements. It starts (78-82) by exposing the fallacious reasoning in setting a nicotine strength limit and highlights the confusion between nicotine content, yields and absorption.  Argues that a higher limit (=50mg/ml) is necessary and the 20mg/ml will limit the effectiveness of e-cigarettes as an alternative to smoking – this causing a negative public health impact.

83-84 go on to deal with the misplaced attempt to control nicotine toxicity risk by requiring small containers – hence more refilling and potentially greater chocking risk to children, making the point there is no equivalent restriction for cigarettes. Again they draw on the very clear letter from scientists to the Commission showing that this is pointless bureaucratic harassment.

85-86 address the requirement of Article 20(3)(f) for consistent dosing of nicotine arguing that this is pointless burden as users control their dosing, and that the requirement in the directive is so poorly specified that the requirement is unclear.  Note also, that no such dosing consistency is required of cigarettes.

87 covers Article 20(4) on warnings, leaflets etc. Points out that the information required on a leaflet is redundant or based on misconceptions and that no equivalent leaflet is required in cigarette packs.  [Note: I think there is also a case to challenge the size and design of the tobacco-style warnings required on e-cigarette and e-liquid packs – these seem disproportionate to risk to me].

88-91 covers Article 20(5) on advertising, sponsorship etc.  Argues that this is applying the EU tobacco advertising legislation (2003/33/EC) indiscriminately to e-cigarettes – even though the market for e-cigarettes is far less developed and that the prohibitions will also potentially damage internet based businesses – by banning or limiting presence on websites, social media etc. TW is not a big direct advertiser, so it has focussed primarily on impositions on its own business model.   [Note: here I am surprised that they did not draw on the argument that tobacco advertising is banned because of the harm smoking does: recital 3 of the tobacco advertising directive 2003/33/EC asserts that the directive is: intended to protect public health by regulating the promotion of tobacco, an addictive product responsible for over half a million deaths in the Community annually, thereby avoiding a situation where young people begin smoking at an early age as a result of promotion and become addicted.]

92-94 covers Article 20(6) which extends Article 18 on cross border distance sales of tobacco products to e-cigarettes. The EU legislature provided no justification for allowing member states to ban cross border sales (recalling that this is a single market directive designed to promote free movement of goods) and further maintains there is no evidence to justify it anyway – specifically that this allows young people to access these products with greater ease, noting that e-cigarettes are hardly used by young people, and to the extent they are it is mostly be existing smokers.  TW recommends an alternative ‘proof of age’ system at the point of sale backed by law prohibiting sales to under-18s.

95-96 covers Article 20(7) on submission of sales and other commercial data.  No equivalent obligations are imposed on cigarette makers and the requirements are too vaguely specified to be meaningful and may clash with data protection legislation.  Argues that overall market surveillance is best conducted by the regulator or other public body – as in other fields.

2. Principle of equality or non-discrimination

97-100 states that in some circumstances the directive is more burdensome than for tobacco (97-8), but also states that given the large difference in public health impact they should not be treated as comparable (99) and gives six examples of where the TPD imposes burdens not faced by tobacco vendors (100).

101. Draws this together as a distortion of competition and violation of the free trade principles.

Note: I think there would be a strong case even if the restrictions were identical to tobacco – and they ought to lean more heavily on their statement at para 99 – tobacco and e-cigarettes simply are not comparable.  The best exposition of the equality principle is  Case 304/01 Sept 2004 Spain v European Commission para 31

… the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

 3. Principle of subsidiarity

102-103 the case for harmonisation through single market legislation is weak and not adequately justified, and that the only justification made related to the different treatment of e-cigarettes as medicines – which is not relevant under the finalised TPD.

[Note: I don’t think this is a particularly strong rationale in practice, even if it works in law – in many ways the directive allows too much member state discretion – e.g. on banning flavours, distance selling, and arbitrary classification of e-cigarettes as medicines etc – they are right however that no adequate justification has been made under subsidiarity principle for the EU assuming the competence to impose these harmonising measures]

4. Charter of Fundamental Rights

104-108 deal with the directive’s impact on rights to property and to run a business guaranteed under Article 17 and 16 of the CFR respectively.  These paragraphs show how the restrictions criticised as disproportionate above affect the proper exploitation of the claimant’s commercial property. This section is probably ‘belt and braces’ showing another basis on which the TPD infringes established principles of the European Union.

Questions referred to the ECJ

1. Is Article 20 of [the Tobacco Products Directive 2014/40/EU] invalid, either in whole or in a relevant part, for one or more of the following reasons:

1.1. It imposes either as a whole or in relevant parts a series of obligations on electronic cigarette manufacturers and/or retailers which infringe the principle of proportionality?

1.2. For equivalent or similar reasons, it fails to comply with the principle of equality?

1.3. It distorts competition in the relevant markets for electronic cigarettes and traditional tobacco cigarettes?

1.4. It fails to comply with the principle of legal certainty?

1.5. It fails to comply with the principle of subsidiarity?

1.6. It infringes the rights of electronic cigarette manufacturers or retailers under Articles 16 and/or 17 of the Charter of Fundamental Rights?

Will it work?

Will they win? I think this case is very strong. But we cannot rule out a court taking a political stance on this or somehow considering these products as variants on NRT – and we haven’t seen the defence yet.  But on its merits this case should succeed – removing most or all of Article 20.   The EU does require genuine public interest justification for overriding the principle of free movement of goods, and does not allow gratuitous distortions of competition without justification – and TW make that case convincingly.

Is there a nightmare scenario?  What if they win and strike out Article 20? Would the EU and/or UK simply revert to requiring everything to be regulated as medicines? I really doubt it – the support for that has dwindled as more people have begun to recognise how that would play out in the market, and the highly burdensome, expensive and time consuming process that MHRA has imposed on the one company that has achieved an authorisation.  It would immediately be challenged as unlawful – most people have started to understand that e-cigarettes are not medicines in law or common sense.

What should happen if they win? When the European Parliament dumped the proposal to regulate these products as medicines as medicines on 8 October 2014, they should have taken e-cigarettes out of the directive and started again with a new legislative proposal, based on sound science, options appraisal, a decent impact assessment and consultation. If Article 20 is struck down, they should start that again and, given the strength of the case, start working on it now. Alternatively they could leave it to member states for a few more years and return to the issue if and when there is a case for it.  At the same time the industry should get its act together and be clear what standards it want to be held to – that work is advancing well.  I was particularly pleased with the outcome of the Commission on Advertising Practice which defined the sensible new UK rules on e-cigarette advertising, which could replace the obviously disproportionate near-total ban conceived in the EU.

Legal arguments not deployed so far

The TW case rests primarily on complaining about unlawful measures included in the final text of the directive. However, there are also numerous process requirements coded into the treaties. Violation of these would in themselves by sufficient to challenge Article 20, because of the way it was made in a closed process of European Parliament amendment followed by Trilogue negotiation between Parliament, Council and Commission. These arguments are as follows:

1. The requirement to consult.  No consultation was conducted on the actual proposals agreed or anything remotely close to them.  Article 11.3 of the Treaty on European Union: 11.3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.  Article 2 of the Protocol on the Application of the Principle of Sustainability and Proportionality  2. Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.

2. Requirement to give reasons.  The recitals to the Directive make false assertions and do not provide adequate justification for the measures in the directive.  Article 296 Treaty on the Functioning of the European Union, establishes the requirement to state reasons: Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties. The reasons given should be evidence based and properly justified.

3. Requirement to produce an impact assessment. There is no impact assessment for these proposals – even though they will regulate a multibillion euro industry, thousands of businesses and the choices available to millions of consumers. Article 5 of the Protocol on the Application of the Principle of Sustainability and Proportionality: Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. … This statement should contain some assessment of the proposal’s financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation.  The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators.  Article 5.4 of the Treaty on European Union: 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.  

4. Requirement for national parliament scrutiny.   The proposals were defined and finalised without adequate time for scrutiny in member states. Article 4 of the Protocol on the Application of the Principle of Sustainability and Proportionality: The Commission shall forward its draft legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator. The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments. The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments. (emphasis added).

5. Proper legal procedure for a new legislative proposal. There is credible argument that Article 20 is in itself a new legislative proposal, and should go through the full ordinary legislative procedure, under Article 294 TFEU.  In effect the Parliament and Council created a brand new legislative proposal through amendment and trilogue in October-December 2013. The Commission proposal had 272 words, compared to 1900 in the final text of Article 20 (plus greatly expanded recitals and text of other articles that Article 20 applies to e-cigarettes) – and final text is completely different to the Commission proposal. It is a brand new legislative proposal constructed and passed through Trilogue, side-stepping the full process and disciplines of Ordinary Legislative Procedure.  Trilogue is really there to close narrow differences, not to completely change the underlying principles or be a vehicle for smuggling new legislative proposals through the legislature.

These process arguments show why such poor legislation came to be made – they lend weight to TW’s contention that the measures are disproportionate, and exactly what you might expect when policy is made on the hoof in a negotiation.

Challenges to the directive

  • Totally Wicked case – C-477/14
  • Government of Poland – Case C-358/14 – is challenging the menthol ban.  Poland has a high use of menthol.
  • Phillip Morris International – is challenging several aspects of the directive, and is supported by Japan Tobacco and Imperial Tobacco. The PMI statement of facts and grounds alleges that the directive is invalid because the EU Legislature has acted without a valid legal basis, that parts of the Directive are disproportionate, that it delegates too much power to the European Commission and that it infringes the principle of subsidiarity (encroaches on powers of member state parliaments.  BAT is challenging several aspects of the directive, using similar legal arguments to PMI… see article here.  The BAT/PMI cases have been joined: case 547/14.  See commentary here.

Video discussion of the Totally Wicked case

In which I interview the Totally Wicked boss, Fraser Cropper, and TW’s lawyer.

 

43 comments to Totally Wicked legal challenge to the Tobacco Products Directive e-cigarette measures

  • Thank you, Clive, for this very useful and excellent summary of TW’s case. Sincere gratitude is also owed to TW – not only for taking the case through to this stage, but also for getting the right legal advice, and for putting together a very compelling case, sufficiently focussed so as not to waste the Court’s time, but nevertheless, clearly establishing why Article 20 has no place in any Directive!

    We wish TW every success, and look forward to the day when Article 20 can join all the other global attempts to misclassify and over-regulate ecigs out of existence – in the bin, where such rubbish belongs!

  • […] On Monday 6th October, the 'Totally Wicked' challenge to Article 20 (Electronic Cigarettes) of the EU Tobacco Products Directive (2014/40/EU) passed an important milestone: the High Court of Justic…  […]

  • Chris Price

    I had always thought that the TPD seriously infringed my human rights – but thanks for pointing out, Clive, that it’s actually a matter of intra-EU trade (or something like that).

    Ah well, this is the EU, after all :)

  • Chris Price

    This seems as good a place as any to ask ECITA what they will be doing about it, please?

    • Clive Bates

      Chris – by all means ask, but I’m not sure what the premise of your question is. The action is being brought by TW on their own behalf.

      I have offered to provide a statement or to see if we can help to get a scientific statement together – but only if the company’s lawyers think that would be useful.

      I dare say ECITA could do something similar, if asked.

  • ECITA continues to focus on the ‘other angle’ in all of this: the swift production of specific product standards for this sector. That said, I have just spoken with TW, and passed over further evidence, concerning the LACK of toxicity of nicotine in eliquids, which I understand can be incorporated into their evidence bundles for this case.

    FYI, the British Standards Institute PAS 54115 is scheduled for publication in March 2015. We hope that it, too, will provide a useful resource for TW at the CJEU.

  • On behalf of all Canadian smoker/vapers thank you Clive for keeping all of us so well informed as you do. While we are struggling to keep our own numbers together against a growing opposition it seems; your own involvement on our behalf is also helping us to lead the way beyond criticism and deceptions so many of us have swallowed for years. We also fully support Totally Wicked who have stepped up in a major area of legal concern of these ingenious devices for all to continue to use as a safer alternative to smoking. We are witness to the success of e-cigarettes; personal vaporizers ( PV’s ) and in spite of this have never really been permitted involvement on decision making including real world studies on with real smokers/vaper’s. True and honest decision making and laws has deterred away from, ” for the people, of the people and by the people ” $hame on them. Thank you Clive. Thanks Totally Wicked…… from all of Canada. Vape Safe! Vape LOUD!

  • Bill Godshall

    Clive,

    Many thanks for explaining the details of TW’s legal challenge, and for providing links to many pertinent documents.

  • Robert Innes

    Many thanks

  • Mark Magenis

    Thanks for picking the bones out of it for us, also nice to know that even if things go wrong
    In this case there are still other robust legal angles in the wings.

  • Alan Depauw

    The detail of your analysis is very useful also for us in France. Many thanks.

  • Jon Fell

    I’m pretty sure all the other major tobacco companies are joining PMI in challenging the directive.

  • Irish Lass

    Thanks for such a clear explanation of this case and the update on its progress. It will certainly be an interesting one to watch. Clive – yours is the BEST blog on the web about e-cigs, to the best of my knowledge and belief. The plaudits from Canada and France seem to confirm that. Your work is really appreciated by vapers.

  • John Stapleton

    Many thanks for your work in producing this very readable synthesis, Clive. I guess it is too late for your strengthening points to be included?

  • Guy Eaton

    Yes, a good analysis and summary. An aspect I find strange in all of this is the relative apathy in many segments of society. These issues are relevant to smokers and non-smokers alike. Even the EFVI initiative only managed to get approximately 2% of vapours signatures despite the EU Directive effectively banning most of the devises and liquids they are currently using. The above is relevant to non-smokers for many reasons not least that EU citizens are being mislead re. dangers etc – information after all is the currency of democracy. What else are we being mislead about – it will not be just ECs? Why are we so concerned, e.g. about the treatment of cancer and not prevention (answer- no money to be made out of prevention). Also, people get confused between the institution of the EU and Europe- not particularly impressed by the former and very pro the later. I guess people have been effectively propagated to. All very undemocratic! Information and accurate knowledge are everything otherwise we are unable to make informed decisions.

    • Irish Lass

      Guy, I echo your reaction. I was incredibly disappointed in the response to the EFVI petition. Given the numbers of vapers in the UK alone, it should have been EASY to get at least 1 million signatures from this country alone. I can only think that it was (a) because people didn’t understand the petition or (b) they didn’t see it.
      In my local vaping shop, the Dodo box was pretty well hidden and the few people to whom I spoke whilst I was in the shop had just not noticed the box and, when I pointed it out, had no idea what the petition was about. When it was explained to them, they were happy to sign – but the people running the shop were actually against the petition! (hence were not promoting it at all)
      Their explanation for this? They would welcome regulation as all their e-liquids were already tested! I don’t think they have a clue what the potential consequences of the TPD could be for vaping.
      Ah well. One could despair – but no point. Just gotta keep fighting for the cause. There does seem to be a tiny change of heart in a few places. Not enough yet, but maybe something that can be built upon.
      I think it is very important that each and every vaper raises their voice to complain through official channels every time something inaccurate is published by the media or stated by the politicians. Otherwise, we are just another silent minority to be trampled over.

  • Philip Formosa

    A very precise summary of the state of play with regards to Totally Wicked’s legal challenge, it certainly made for interesting reading. Would you happen to know if BAT’s statement of facts is presently available, as I am considering this topic as a potential area for my dissertation?

    • Clive Bates

      Dear Philip – I don’t have any documentation for the BAT case, but I will see if I can obtain it. My take on the directive is that it one of the worst pieces of EU legislation ever made, and I’ve wider interests in the way EU legislation respects or violates the treaties. My view is that we would have a much better and more robust European Union if the legislature took the existing treaties as if they really were a constitutional framework.

  • Philip Formosa

    Dear Clive,

    Sorry for the belated reply (and might I add, thanks for getting back to me).

    I find myself to be in agreement with your assessment – the revision of TPD2 seems to be out of synch with the principle of conferral, and a number of the revised measures are certainly disproportionate. And yet, I struggle to see whether Philip Morris will have any success in challenging TPD2; the most likely outcome being that the CJEU will merely reiterate its earlier findings in the challenge to TPD1.

    That said; Totally Wicked seem to have a stronger case (and, it may be interesting to query the effect of the validity of the Directive being upheld, whilst the provisions on e-cigarettes being annulled).

  • Mick

    There are (or so my version of Word Tells me) 19,740 words in the TPD and a total of 1,855 words in article 20. However this does not include legislation in other articles related to electronic cigarettes as they are also now considered ‘tobacco’ products. So for example article 18 outlines cross border sales for ALL products considered to be addressed by the TPD.

    If we add in a modest 500 words for the preamble, a further 500 words for articles also affecting ecigs and another 500 for articles that ‘might’ affect ecigs then we have a total of 17% of the TPD that affects ecigs in one form or another.

    The question I think needs also to be asked how a product that capitalizes 1% of the market with 0% of the harm and also almost no ability to lobby for anything can possibly be due legislation that requires 17% of a whole directive?

    Moreover its a guess but I would pretty much be sure that 90% of the emails and data related to the TPD are all about ecigs…both inter EU among legislators and certainly from those outside sending in…

    Remember this Tobacco Products Directive was being worked on with zero account for electronic cigarettes until someone somewhere in 2012 or just before decided it was somehow a good idea. If nothing else that person needs to be presented with their P45 by all sides.

    Even then it was poorly thought out and included just 200 words… less than this comment. So a full 17% of the content of the TPD (since the affecting material outside article 20 also had to be considered) was decided behind closed doors in the weeks leading up to voting on it. I don’t believe I’ve ever heard of any politician or civil servant working so hard, so fast in my entire life… this has to be some sort of legislative world record!

    The other 84% of the TPD had several years of circulation and discussion, in fact it was first mooted as far back as 2006, nearly a decade ago.

    I think the short and long of it is this… if the tobacco industry as a whole requires several years of discussion for a new products directive how on earth could a new disruptive technology that legislators insist themselves they know nothing about take up 17% of the volume of legislation and be concluded in less than 1% of the time? Its an absolute recipe for disaster. The EU will be very lucky if they can simply extradite article 20 back to its home country of BinLand as Catherine from ECITA suggests…

    This alone…without knowing anything else is why TW will walk this case!

    And good luck to them.

    • John

      Mick I think you have in a ‘short long’ way nailed the strangeness of the legislation , it also brings to mind the old adage about ‘special cases making ,very bad law’.

  • […] is challenging Article in the Court of Justice of the European Union.  See my guide to the case here, and if you want to support Totally Wicked’s case, do it […]

  • Tom

    It seems apparent that the EU has no experts re e-cigs which begs the question who actually wrote it ?

  • […] agreeing yet more bad law that feeds the Brexit tendency, we have the directive we have unless Totally Wicked do us all a favour and succeed in striking it down. Nevertheless, I would like MHRA to approach this pragmatically, and recognise the many […]

  • […] a pig, they are not consulting on the Directive itself – that is irrevocably fixed (albeit subject to legal action that could strike it down), but on implementation detail. The part of the directive itself that […]

  • […] Clive still has hopes for the Totally Wicked case, which might be heard soon (update: date has now been set – see here for details and how you can support it). […]

  • […] pense que le dossier défendu par Totally Wicked est très solide” commente Clive Bates sur son blog. “Mais nous ne pouvons pas exclure la possibilité qu'un tribunal ne prenne pas […]

  • Thorsten Paskert

    Noch etwas Unterstützung aus Deutschland für euch!

  • […]  This is live right now, through the case brought by Totally Wicked – explained here Totally Wicked Challenge to Tobacco Products Directive and on the Totally Wicked dedicated Article20LegalChallenge website, where you can show your […]

  • Bernice Evans

    Thank you, Clive. I wish I had introduced myself! Your speech was inspiring as always. I , as others, turned up at London today. I just wish we could get the message to all vapers, not just the ones that are aware. It is always the same faces for pro-vape and I hope that the words spreads better now. Fingers crossed we can get every vaper to talk to their political representative and share our outrage of what is planned. Kudos sir! And thank you, Totally Wicked!

  • Irish Lass

    Thanks for the update, Clive. I have been following this on TW’s website too. And encouraging other vapers here to sign. Most often, they hadn’t done so because they were unaware of the TPD and/or of the TW case. The media have hardly given this sufficient coverage for the average vaper in the street to notice it. Clearly not nearly sensationalist for them!

    I was delighted to see the final total of signatures had gone up to over 71,000 by the time the petition was handed in, an increase of some 20,000 over the final few days. Still not a great figure, given the number of vapers in the country – but better than EFVI managed, so definitely progress.

    I was sorry not to be able to attend the handing over of the petition, but its just too expensive to travel to London from Belfast for the sake of a brief event – even such an important one! So I was glad to be able to listen to your speech on this site.

    My thoughts will be with TW tomorrow, as the arguments are put forward, and I just hope that the judges hearing the case have not been nobbled in advance by the politicians who support this dreadful law. I fear that the odds are against TW, but am hoping against hope that they can overcome.

    If they do win this case, it will be a real David v Goliath victory, worthy of great celebration in the vaping community.

  • […] do zakończenia postępowania w Luksemburgu, co może potrwać kilka miesięcy. Warto przeczytać informację o tym całym procesie, którą na swoim blogu przedstawił nieoceniony Clive Bates. Prawnicy TW będą dziś mieli 20 minut na przedstawienie uzasadnienia swojego wniosku. Kraje […]

  • Kurtis Sunday

    A message to her MP from Abigail Cottrill in Bradford on the TPD:

    http://www.youtube.com/watch?v=Z-HL_PZihcM&feature=youtu.be

    I should imagine it expresses what a lot of vapers think.

    Worth listening to.

  • […] 23rd December 2015, we will have the first sign of whether some or all of Totally Wicked legal action at the Court of Justice of the Eureopan Union (CJEU) will be successful. This is the release of […]

  • […] prepare for the worst” – as many people suggested that the challenge appeared to be very strong, but it seems that many folks were content to hinge everything on Totally Wicked being 110% […]

  • […] Snowdon’s short summary of the TPD, and Clive Bates’s slightly longer one. There are links on Clive’s page to more about the court case […]

  • […] 23rd December, the Totally Wicked case against the EU tobacco products directive treatment of e-cigarettes suffered a setback at the […]

  • […] Totally Wicked has been granted permission by the UK courts to challenge the legality of the European Union’s Tobacco Products Directive (TPD) in the EU Courts, and this is of significance globally.Why, you may ask? After all don’t we have our own issues here with the FDA and their deeming regs’, why should we worry about what’s going on in the EU?And to a degree, you are right to say and think that.European law doesn’t necessarily translate over here, but… with something as controversial as e-cigarettes, you can bet the world will be watching and the results will inform how others around the globe will legislate and implement existing legislation, and, how others will challenge that legislation.There will be a follow on impact.TW are challenging the TPD because there are many things within the TPD regarding e cigarettes that are outright wrong, not least legislating against e-cigs as if they were as harmful as tobacco.TW is the only e-cigarette company that has so far challenged. Poland is challenging the TPD in regards to menthol cigarettes, Tobacco Giant Philip Morris are challenging on several grounds, and Denmark may get involved as the Danish use a loose leaf tobacco product called snus, which the TPD wants away with.So the Judges’ will have plenty to keep them busy.But Article 20 is the part TW is challenging.Why is TW spending a lot of money on this, especially when European countries don’t tend to sue and challenge law the way we do here, and isn’t it political over there anyway and done behind doors?Well, TW is a global company – operating out of the UK, Germany and the USA. TW has values, and this includes standing up and fighting for the rights of Vapers’ Internationally.The legality of the TPD was questioned even before it was rushed through the EU Parliament, the science used was twisted to suit a specific purpose, (yes the Scientist in question wrote and protested) and the final draft of the TPD that was passed last year, appears to be breaking several fundamental EU laws – those of proportionality, equality and subsidiarity; where the EU should not take action unless it is more effective than member states acting on their own – in other words harmonising EU member states laws.If TW are successful, then it could mean the removal of Article 20 from the tobacco products directive, and instead well thought out and Industry specific  regulations  for e-cigarettes. E-cigs are NOT a tobacco product, nor are they a medicine, and they should be regulated in a category of their own.If Article 20 get’s thrown out – thrown out with it are the unnecessary regulatory burdens, the unnecessary nicotine limits, the dangerous small tank sizes (choking hazard), the banning of advertising and the EU will have to look at the evidence correctly, not rush it through behind closed doors, not cherry pick and twist it, but do the job properly.Should the EU then get this right, everybody benefits, even the USA, because then there is even more precedent set should the FDA bring out ill though out e-cigarette regulations for the USA.For those of you that would like a much more detailed and in depth look at the TW legal challenge, the whys etc. and the arguments used, then this blog by Clive Bates, an e-cigarette advocate in the UK is an excellent place to start. http://www.clivebates.com/?p=2446#more-2446 […]

  • […] the best, prepare for the worst” – as many people suggested that the challenge appeared to be very strong, but it seems that many folks were content to hinge everything on Totally Wicked being 110% […]

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