May 21st, 2016

No surrender! The fight against harmful, incompetent and pointless European law goes on

No surrender

Fantastic to see the increasingly powerful UK vaping consumer voice tearing into poor policy and bad law that will do nothing but harm while meddling incompetently in the free choices of adults and free movement of goods. The Tobacco Products Directive (TPD) and its UK implementing regulations are truly dreadful.

Here are three things to look at:

  1. New Nicotine Alliance – Letter to the Department of Health – on the harmful unintended consequences of the TPD
  2. New Nicotine Alliance – Letter to the Prime Minister – on the escape from the TPD
  3. House of Lords fatal motion and #LordsVapeVote campaign TAKE ACTION!

1. Letter to Department of Health –  29 April 2016

This letter draws on the Department of Health’s Impact Assessment for the directive and notes that no real benefits are attributed to the e-cigarettes part of the directive but that a number of risks are.  We elaborate on all the ways in which the directive and regulations could be harmful to health (and therefore unlawful) and set out the various options that are open to the Department of Health to reduce the amount of waste and harm the policy it agreed in 2013 will do.

2. Letter to Prime Minister – 16 May 2016

On 10 May there was a feisty e-vaping debate in the House of Lords (also see this abridged write-up) and the following day a question put to the Prime Minister by Anne Main MP at PM Questions (11 May):

Anne Main MP
Yesterday Lord Prior spoke up for vaping as a way of getting off cigarettes; so has the Royal College of Physicians. Why are we bringing in the Brussels diktat that says that we must include vaping in the tobacco directive?

Prime Minister – Rt Hon David Cameron MP
I am happy to look at this issue closely. It is necessary to differentiate between smoking and vaping, because they have very different health effects. I actually think that that is what is being achieved, but I will look into this carefully and will write to my hon. Friend.

We figured that Mr Cameron and Mrs Main may not get entirely objective advice about the TPD, which, after all, is a monstrosity partly of their making.  So we decided to write providing an alternative perspective for use in clarifying the points raised in debate and at PMQ. Again, with some ideas on how to get out of the TPD.

Rt. Hon. David Cameron MP
The Prime Minister
10 Downing Street
London
SW1A 2AA

16 May 2016

Dear Prime Minister

Vaping and the Tobacco Products Directive – follow up to PMQs 11 May 2016

We write as consumer and public health advocates in favour of vaping for reasons of consumer choice and public health.  We welcome your commitment at PMQs to look into whether vapour technology is appropriately regulated under the Tobacco Products Directive (2014/40/EC Article 20) and to respond to the question from your Conservative colleague, Anne Main MP.

In our view, this regulatory intervention has been one of the most serious health policy failures of recent times, from which many lessons should be drawn.  The main issue is that a promising emerging technology has been treated as if it poses a mortal threat rather than creating a major health opportunity.  It is now subject to careless and largely pointless over-regulation using the most inflexible instrument, an EU directive, which will be difficult to adjust to accommodate reality.  Regulation has been driven by misguided hostility among public health activists, regrettably including the Chief Medical Officer.

To assist with your response to Anne Main MP, we would like to provide this briefing and some recommendations about what can be done, given the EU directive was signed into law in May 2014 and the UK is obliged to comply.

These are the key issues in the Tobacco Products Directive (2014/40/EU) as they apply to vaping, primarily the measure in Article 20:

The EU directive is extremely poor legislation based on confused policy.  The Directive is a terrible mess of ad hoc restrictions that serve no purpose, huge and repetitively redundant bureaucratic burdens, great costs and numerous unjustified restrictions on the free movement of goods, which was the ostensible purpose and legal base of the directive. The directive has the effect of protecting an extremely harmful incumbent (cigarettes) while throttling a disruptive and highly beneficial entrant. We attach a more detailed critique of the directive. [1]

The EU directive will do much harm but no good. It is likely that the impacts of the Directive on vaping will be dominated by major unintended consequences. The Department of Health impact assessment cannot identify, let alone quantify, any material benefits. However, it shows first signs of government candour about the risks that arise from making vaping more expensive, less accessible, more boring, less appealing through clumsy regulation. To the extent that poor regulation reduces the appeal of vaping products relative to smoking, it protects the cigarette trade, supports continued smoking and promotes black market activity. We have written to the Department outlining our concerns, and we attach this letter [2].

An EU directive is the wrong way to regulate a new and disruptive technology. The use of a legal instrument as inflexible as a European Union directive to regulate a new and disruptive technology is a major error.  Up until very recently the technology was completely misunderstood in government and subject to a demonising campaign by the WHO and many health groups lobbying the European institutions with a prohibitionist agenda. This negativity has since been reversed in the UK, most notably by the publication of the authoritative Royal College of Physicians report on 28 April, Nicotine without smoke. The problem is that this has come two years after the directive was agreed based on flawed science and intensely negative interest group lobbying, and it may take a further 10 years before it can change.  We enclose the RCP’s highly positive recommendations and press release [3][4].

The EU directive is generating anti-EU pro-Brexit sentiment among Britain’s 2.2m vapers. The Directive comes into effect on 20 May 2016 and is driving strong anti-EU feeling among some of Britain’s 2.2 million vapers.  Many are now vocally calling for “Brexit” and pointing to the Directive as evidence of how the EU harms its citizens and is an elitist and remote project indifferent or hostile to their concerns and aspirations. We have yet to find a single consumer who believes these EU measures will do anything beneficial for consumer protection, promote a vibrant rival to the cigarette trade or protect public health.

The making of the EU directive is a case study in bad policy-making. The relevant directive text was drawn up in the immediate aftermath of rejection by the European Parliament in October 2013 of the Commission, Council and UK’s misguided policy to regulate these products as medicines. They are not medicines and never were. Completely new ad hoc regulation was concocted in a few closed ‘trilogue’ meetings, ignoring the advice of scientists, and with no consultation, options appraisal, impact assessment or Westminster scrutiny. The Department of Health had numerous opportunities to pull back from this but ploughed on undeterred.  All the government’s ‘better regulation’ machinery was supine and unresponsive. The ‘Red Tape Challenge’ was indifferent and disengaged, even though it notionally had an interest in new and disruptive technologies. If there is interest in learning from this woeful experience – the antithesis of ‘open policy-making’ – we would be happy to provide a more complete account.

What can be done?

We have suggested a number actions to the Department of Health, and would like to reiterate them here:

  • The Department of Health should thoroughly assess the impact of this directive as it comes into effect and report on adverse unintended consequences and impacts on smoking behaviour – the most likely consequences are large and harmful. We recommend annual review of the directive and its impacts.
  • The Government should assess the supply chain and consumer reaction to the directive to determine whether the directive is really promoting the free movement of goods or merely promoting risky or criminal enterprise. The growth of any black market should be treated as a diagnostic for policy failure rather than as a reason to treat people quitting smoking and protecting their health as criminals.
  • The Department of Health should press for an early review of Article 20 by the European Commission. The directive requires a report no later than May 2021, but it could be done sooner.
  • The Department of Health should press the Commission to recognise Article 20 is, at best, an interim stop-gap measure and to seek a new legislative proposal based on light-touch standards, realistic communication with consumers, and proportionate restrictions on marketing similar to those currently operating in the UK, which are in turn similar to those used for alcohol for many years.
  • The Department of Health should seek legal advice on its options if the directive is not working as intended, and not promoting the free movement of goods with a high level of health protection. In this event we believe these provisions lose their Article 114 legal base under the EU treaties and become unlawful. In that event, they should be withdrawn regardless of whether legal action is taken.

These concerns are emphasised by the Royal College of Physicians at 10.4.2 in its April 2016 report [5].

…it is clearly important that TPD implementation be closely monitored to assess the extent of unintended, as well as intended, effects on the availability and use of non-tobacco nicotine products and, in particular, the consequences of these effects on tobacco smoking rates; it should also ensure that prompt action be taken if TPD regulation proves to work against, rather than for, the benefit of public health. We therefore recommend annual review in the UK.

We would welcome the opportunity to discuss these issues with the appropriate advisers or officials and would welcome your response to the five recommendations above. We are copying this letter to Nick Seddon (Special Adviser), to Anne Main MP, to Lord Prior and to Viscount Ridley, who initiated the debate in the House of Lords to which the question at PMQs refers.

Yours sincerely

Sarah Jakes (Trustee)
On behalf of New Nicotine Alliance

Clive Bates
Counterfactual
Associate, New Nicotine Alliance

Disclosures

The New Nicotine Alliance advocates for consumer interests in new nicotine technologies and is completely independent of commercial interests in the relevant industries (e-cigarettes, tobacco, pharmaceutical companies, etc).

Clive Bates is Director of Counterfactual, which is a sustainability consulting and advocacy practice. He is an Associate of the New Nicotine Alliance. He has no competing interests with respect to any relevant industries.

Enclosures

[1] Snowdon CJ, E-cigarettes and Article 20 of the Tobacco Products Directive, EPICenter (European Policy Information Center), September 2015

[2] Letter from New Nicotine Alliance to Department of Health: Assessing and mitigating unintended consequences of policies for vapour technologies and other low risk alternatives to smoking, [as sent – PDF] 29 April 2016

[3] Royal College of Physicians, Nicotine without smokekey recommendations, April 2016

[4] Royal College of Physicians, Nicotine without smokenews release April 2016.

[5] Royal College of Physicians, Nicotine without smokemain report download April 2016.

3. House of Lords fatal motion and #LordsVapeVote – 19 May 2016

The most thoughtful and constructive MEP during the negotiation of the Tobacco Products Directive was Martin Callanan MEP.  He is now ennobled as Lord Callanan.  On 19 May he put down a so-called ‘fatal motion’ in the House of Lords:

Lord Callanan to move that a Humble Address be presented to Her Majesty praying that the Tobacco and Related Products Regulations 2016, laid before the House on 22 April, be annulled on the grounds that its restrictions on product choice and advertising of vaping devices were devised before evidence had accumulated that vaping was enabling many people to quit smoking, run counter to advice from the Royal College of Physicians to promote vaping and are so severe that they could force vapers back to smoking and create a black market with harmful products (SI 2015/507).

This motion leads to a debate within 40 business days and vote.  If successful it would strike down the Tobacco and Related Products Regulations 2016, which implements the Tobacco Products Directive in the UK. Part 6 of these regulations implements Article 20 of the Directive.  The motion, if successful, would strike down the whole lot.

This is immensely challenging and embarrassing for the government.  The government has a legal obligation to comply with the EU Directive, but the motion and debate highlights how weak and unaccountable the decision-making in Brussels is, and how powerless (on paper at least) the Westminister parliament is to do anything about useless laws made in Brussels. All this coming at a time of heightened sensitivity at the EU on account of the Leave/Remain EU referendum on 23rd June.

Campaign – game on. Vapers have united behind this campaign with Twitter hashtag #LordsVapeVote and high-quality campaigning advice has been produced to explain it and advise on what to do:

No-one can say what will come of this, but it will get the attention of ministers, officials and politicians.  They too easily hide behind anonymous unaccountable group decisions made in Brussels far from the people and businesses affected.

This time, it will be different. 

PS. if you think any of this might be a reason for Brexit, I disagree.

 

22 comments to No surrender! The fight against harmful, incompetent and pointless European law goes on

  • […] Clive Bates: No surrender! The fight against harmful, incompetent and pointless European law goes on http://www.clivebates.com/?p=4105 […]

  • […] No surrender! The fight against harmful, incompetent and pointless European law goes on – The ever-informative Clive Bates of The Counterfactual gives an excellent breakdown of the people who have made huge strides in advocating vaping in the UK against the TPD regulations: http://www.clivebates.com/?p=4105 […]

  • Mark magenis

    There have been a number of times in the battle to save vaping, for the smokers who are yet to discover it, that could be described as a perfect storm, the #lordsvapevote is probably the biggest so far. I have hope, this time, it won’t be diverted by the subsidiary issues, that raised the pressure, staying focused on those who could have their lives enhanced, by discovering the opertunity to discarde the harms.

  • […] No surrender! The fight against harmful, incompetent and pointless European law goes on – The ever-informative Clive Bates of The Counterfactual gives an excellent breakdown of the people who have made huge strides in advocating vaping in the UK against the TPD regulations: http://www.clivebates.com/?p=4105 […]

  • Guy Eaton

    How much longer will the change.org petition last?

  • john Walker

    Clive
    Smoking generates a lot of tax. Tax pays for the civil service. Vaping generates stuff all in tax.
    That is the real story

    • Guy Eaton

      John
      I believe that is only part of the story. Tobacco and Pharmaceutical Companies have a lot to do with the negative image of vaping, which unfortunately the gullible public have more that readily ‘absorbed’ – propaganda is extremely effective it would seem.

      • John walker

        Obviously there are many ‘contributors’.
        However the following two things have to be a big player.

        Wages are stagnant, unemployment is high, income tax collections are stagnant or falling. And the costs of welfare etc are up.
        Company profits are down, company taxes are therefore down, multinational profit shifting also means reduced company tax payments.
        There are limits to raising VAT style taxes . Not too popular .So taxes on things like smokers , minority group , disdained by the majority are important to budgets. And politically an easy sell.

        The other eternal factor is “the budget maximising bureaucrat “- maximising the costs ie maximising regulation , maximises the money and status of that bureaucrats ‘office ‘.

  • vapingpoint

    Oh Clive – please DO write it up – with a special section on the lies, deceits and outright mendacity of Tobacco Control who have written the template for how to manipulate a whole society, with guilt and shame.You could have a section on the effects on the economy of the Second Hand Smoke myth, that was promoted as an idea by your crowd BEFORE any science! There could be a section on the loss of happiness, creativity and solidarity in society, prison suicides, the criminal abuse of those with mental health problems and old people. There could be yet another section on HOW Tobacco Control gets its guestimates and twististics that are repeated by Public Health, like Loons calling out to each other on a pond.

    It is VERY hard to admit the ORIGINAL SIN in Tobacco Control. The whole problem with the vaping situation is not smokers, neither is it vapers. The problem is Tobacco Control!

  • John Walker

    Clive re the EU surely there could be some ‘agreement ‘ that EC directives on things that are not serious matters of free trade, security and the like, directives such as the one being discussed, be more of ‘a guidance ‘ to member states rather that a directive from on high?
    Europe is about 500 million people, several languages and cultural traditions and while smaller than Australia it is still a long way from the imperial center at Brussels to the provinces, surely a less top-down approach to matters such as this one, would be more efficient, produce better results?

    There something about your Brussels that reminds me of an oversized micromanaging town clerk.

    • Clive Bates

      Took the liberty of fixing some typos in your comment.

      You make a good point, and this is how you should start to deal with a new and disruptive technology – see Regulating disruptive technologies

      But that is not what they have done here – this is supposed to be justified as a free trade measure. It is supposed to improve trade by harmonising regulation with a view to securing a high level of health protection. A lot of bad anti-free trade measures are smuggled in by this route.

      In truth, they should have done nothing until member states were finding it a problem and that different regulatory standards were damaging free trade.

      • John walker

        Clive thank you.

        It seems that a lot of the EUs poor choices have come via, top down harmonisation .
        A common currency , without all the things that are meant to go with it, springs to mind.

        Top down is inefficient wasteful design , one of our greatest most successful Commanders was a enginer by trade, he understood it:

        “not lip service, nor obsequious homage to superiors, nor servile observance of forms and customs…the Australian army is proof that individualism is the best and not the worst foundation upon which to build up collective discipline” General John Monash

  • Hugrún Tanja Rut Sveinsdóttir

    Good stuff :)

  • Mr. Blog Dog

    Great work again, Clive – Many thanks.

    QUOTE: “The growth of any black market should be treated as a diagnostic for policy failure rather than as a reason to treat people quitting smoking and protecting their health as criminals.”

    The apex criminals in this pan-European public health disaster are the all-powerful pharmaceutical mafia and their shady Brussels based lobbying groups. Various “we know best” and ill-informed public health bodies have aided and abetted the crime; add a large dose of lazy, corrupt and incompetent politicians, and what do you get? The Tobacco Products Directive. The biggest public health crime in recent history. The FDA’s deeming regs will no doubt top this unless they are reversed…

    If anyone in the UK reading this hasn’t signed the petition, PLEASE SIGN NOW!
    https://www.change.org/p/david-cameron-mp-support-parliamentary-moves-to-block-crazy-e-cigarette-regulations

  • Guy Eaton

    I will be supporting the New Nicotine Alliance!

  • Guy Eaton

    Absolutely brilliant!
    Yes, it is a fight to the death of bad policy making and law. These opponents of vaping are meddling with the wrong people. One of us seems to have more tenacity and brains than all those anti-vaping idiots put together.
    Nicotine is not illegal and I will not have my human and democratic rights infringed by people that appear to think the world is flat!! Forcing people who cannot quit nicotine to use a lethal route of delivery – what kind of world is this? It is completely preposterous.
    These issues are actually far, far wider that the vaping debate. These are issues of morality, accountability, democracy, human rights, EU, public health and the influence of Multinationals. I really believe that some charlatans do not know what they are getting into.

    • G. Karl Snae

      Absolutely agree with you Guy Eaton, these issues are of far greater importance than just this vaping debate, though utterly important in itself but at the same time so much more. “These are issues of morality, accountability, democracy, human rights, EU, public health and the influence of Multinationals.”

    • Clive Bates

      Guy

      I agree there are many fascinating lessons and insights from this policy-making disaster that go much wider than vaping. One day I may try to write it up!

      Clive

      • Guy Eaton

        Yes, with you on that re. writing this all up one day. All these charlatans and those who are ignorant and prejudice need to be held to account. I can see there is still a seething underlying intolerance, in people in a societies that are supposed to be so liberal: the seeds of fascism and naziism! The bottom line is that politicians have absolutely no right to tell people how to deliver nicotine if smoking and nicotine are legal. It does not effect behaviour as alcohol and most other drugs do, albeit increases alertness, improves mood, memory and speeds up your metabolic rate!!!!

      • Guy Eaton

        Clive
        will even help you to write it up if I ever have any time!
        Guy

  • G. Karl Snae

    This is totally beautiful. Love this article, urging action and how to tackle ignorance, stupidity and highly dangerous lawmaking. This new resistance movement should be and is global. You Brits are not alone in this situation, it’s global. Peoples health before anything else should be our and every legislators priority, not vested interests of the few. We know the science and the Why’s, this is an action of How, moving forward. #LordsVapeVote among those.

  • vapingpoint

    Thank you – good stuff!

Leave a Reply

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>