February 5th, 2016

TPD implementation – maximising harm by going beyond the minimum

julie andrews

Caption contest: the hills are alive with the sound of…

It’s hard to keep up with the public health madness in Europe.  Not content with creating the worst EU Directive ever made, laden with unintended consequences, many member states are now working hard on compounding their error by gold-plating the directive’s wholly unjustified costs, burdens and limitations on e-cigarettes and smokeless tobacco with additional measures that go beyond the minimum.

Professor Gerry Stimson and I have made a small effort of resistance – here are two submissions to the Austrian consultation on TPD implementation. Austria proposes to ban internet sales of e-cigarettes and to ban all forms of smokeless tobacco, not just snus. We have tried to place these in the wider context of harm reduction and unintended consequences of poor policy-making.

1. E-cigarettes

First the covering email…

Minister Sabine Oberhauser
Ministry of Health

5 February 2016

Dear Dr Oberhauser

Further to our letter of 3 February, please find attached a second submission on Austria’s approach to implementing the Tobacco Products Directive.  This letter relates to e-cigarettes (TPD article 20).

We believe that Austria and all EU member states should recognise the great public health potential of e-cigarettes and implement only the minimum mandatory measures required by the directive, and no more.  In particular, a ban on internet sales would be a wholly unjustified protection of the cigarette trade and restriction of Austrian citizens access to much less harmful products. There is no ethical, legal or public health case to limit access to e-cigarettes or to favour the tobacco industry in this way, but that is the likely effect of such a ban.

I hope you will be able to take these views into account and go only as far as this ill-conceived European legislation requires, but no further.

Clive Bates
Professor Gerry Stimson

See full letter on e-cigarettes: Austrian implementation of TPD and the public health potential of e-cigarettes

2. Smokeless tobacco

3 February 2016

Dear Dr Oberhauser

Please find attached a submission on Austria‘s proposal to extend the European Union ban on oral tobacco (TPD article 17) to include other forms of smokeless tobacco.

We believe the EU ban on oral tobacco is already a significant mistake, given the highly positive health consequences of snus use evident in Sweden, but overlooked by the European legislature. To ban other forms of low-risk tobacco would compound the mistake and undoubtedly cause harm to Austria’s 14,000+ smokeless tobacco users, as well as denying cigarette smokers much less risky alternatives to smoking.

I hope you will be able to take these views into account and go only as far as this ill-conceived European legislation requires, but no further. There is no scientific or ethical case to ban smokeless tobacco, and it is wrong to limit access to products far less risky than cigarettes, which will remain freely available.

Clive Bates
Professor Gerry Stimson

See full letter on smokeless: Austrian implementation of TPD and the public health potential of smokeless tobacco

All submissions

See all submissions on the Austrian Parliament website (ours are at 344 and 467)

26 comments to TPD implementation – maximising harm by going beyond the minimum

  • […] In fact, former chief of Action on Smoking and Health called the bill the ‘worst EU directive ever made.’ […]

  • […] In fact, former chief of Action on Smoking and Health called the bill the ‘worst EU directive ever made.’ […]

  • […] Clive Bates: TPD implementation maximizing harm by going beyond the minimum (Austria has proposed banning internet sales of vapor products and banning smokeless tobacco products other than snus) http://www.clivebates.com/?p=3589 […]

  • G. Karl Snaebjörnsson

    Hi Clive,
    a little after meeting thoughts: Ministry of Health (Iceland) is going to consider taking e-cig regulations to a special legislation, just on e-cigs, not in the Tobacco regulation and then a little bit more ;-). Will be in contact when/if it will be ripe for harvesting on it further. ( I think I will just email you from now on further progress on this).

  • G. Karl Snaebjörnsson

    Thanks for the link Clive
    I like that one, from the EEA Decision making, whatever that is worth, “…All the EEA EFTA States have to be in agreement for the EEA Joint Committee to take a decision.” We will have to wait for the EEA EFTA nations to make up their minds and work on and hope for the best decision.

  • G. Karl Snaebjörnsson

    Hi Clive,
    could you clear the picture a little bit for us not Brits about this in your letter “… follow the UK in implementing only the minimum requirements of the Tobacco Products Directive as it applies to e-cigarettes, and no more…”

    • Clive Bates

      Yes – there are different ways to implement the directive:
      + points that are ambiguous and could be more or less demanding depending on interpretation (e.g. ‘consistent dosing’)
      + places where flexibility is given to the member state (e.g. banning internet sales)
      + the means to do other things at the same time as drafting legislation to implement the directive (e.g. ban all advertising of e-cigarettes, not just that cross-border variety specified in the directive or to require medicine regulation).

      Though they haven’t stated this explicitly, UK officials have implied the directive would be implemented in the way that is least burdensome and would stick to meeting the minimum requirements.

      Updated: UK will go further than minimum in other asepcts of the directive (e.g. plain packaging) and last time I checked Scotland was planning to extend the ban on cross-border internet advertising to all advertising of e-cigarettes. Cigarette vendors north of teh border must be delighted.

      • G. Karl Snaebjörnsson

        Thanks for your answer. Also it is unclear (yet) for me about the legal obligations concerning EES countries to implement the TPD in toto or partially or nothing at all.

        I would recommend that we ignore the TPD totally for my country, but make a new one based on best scientific knowledge today; just not acceptable otherwise for then we would not have the best interest (and health) of our people as the guiding rule. EU with it’s horrible TPD has just gone over the tip this time in my view.

        Time to let EU and WHO/FCTC know that. We just need a member country (EU or EES) to make that statement, with a little courage and willpower to do it; otherwise it will do us. You can call it the impossible childish thing to act in or blue eyed if you want. Well, then I like that better than sit by being plain ignorant or stupid to what we know is best and by that robbing our people of their better health and lives. Simply not acceptable in my view.

        What is sovereignty of our countries worth if not being able to choose in the best interests of their people? ..and what is our governments worth if they don’t act in their peoples best interests?

        • Clive Bates

          I don’t think there is choice. The directive is marked “Text with EEA relevance” – in this case meaning the directive is part of the internal market rules. So in order to participate in the internal market, EEA states like Iceland have to implement the directive.

        • G. Karl Snaebjörnsson

          Well, not without punitive measures at least I would think. But at what cost would that be? Thrown out from EEA (EES)? Don’t think so; would like to see what kind of punishment would then be used, against a nation acting in their best interests concerning their nations health!
          Marked “EEA relevance” is a little vague text or meaning, because why would EEA countries have a meeting and make a decision by themselves if the implementation of EUs directives were obligatory anyway? Waste of EEA meetings then?!

          Will take that up on my next meeting this week with the lawyers at the Ministry of Health. But it is not always up to the lawyers to decide on things, because of general health interests of the people can overrule those same. Is this that time?

        • G. Karl Snaebjörnsson

          …..we also have to remember the many protests that WHO/FCTC has received, around 90.000 and that is historic, so their (EU/TPD) decision is not so stable or solid as they would like it to be if it would go before a jury. So, obviously there isn’t any general consensus about it, though EUs, scientifically or ethically if not even politically. A jury’s decision on any punitive measures would have to take that into account.

          At least the punishment would be cheaper (money wise) than smoking is already costing our nations health care systems and societies as a whole.

        • Clive Bates

          This link provides some background on EEA decision-making: EEA Decision Making. I’m pretty sure Iceland has to implement in full.

      • John

        Clive not sure, it’s really question for the IP \ EC law types,
        I think Scotland would have trouble enforcing bans on web ads that are on a server that is located, out side Scotland’s jurisdiction…

        • Clive Bates

          It isn’t where the server is located, it is whether the company operates a business in the EU/EEA. Quite how that will work in practice is another matter.

        • john walker

          Clive I thought that banning web, ads and trade was not mandatory under the EC directive?

  • G. Karl Snaebjörnsson

    Kudos to your letters to the Austrians, but would you be wiling to send a similar letter to my Icelandic Health Minister also? Please do that ;-). I can give you their emails to you if… :-)

    Even though Iceland is not a member state of EU it is a EES country so a meeting and a conclusion within the EES countries (Ieland, Norway and Lichtenstein) is needed before the TPD directives (or changes to that) will be implemented in these countries.

    Lollylulubes mentioned a leaked memos. Does anyone have a link on that?

    • Clive Bates

      As always, I’m happy to help anywhere. But as always, it is knowing who to write to, when to write, how it can make a difference and, crucially, what the specific issues are.

  • Lollylulubes

    I believe the ‘unintended consequences’ are fully intended. The aim is to protect the cigarette trade (especially cigarette taxes) and give a ‘level playing field’ (we saw the leaked memos) to pharmafia by making ecigs as undesirable and ineffective as possible. The result will be to destroy many small ecig companies and hand the vaping monopoly to the tobacco and pharmaceutical companies.

    They’ve both done huge amounts of lobbying, so it’s no coincidence that the FDA is doing the same thing. In the press, I saw councillors from two separate U.S. States both bemoaning the loss to their budgets of cigarette taxes and MSA payments and a third referring to cigarettes as, “We must be careful not to kill the golden goose” (sic).

    I think alot of legislators have succumbed to the scaremongering propaganda, but they’ve done so willingly because billions of dollars are at stake.

  • john r walker

    Really can’t see web traffic bans working in practice , lest ‘cross border’ bans.

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