New European Union Rules Will Hold Back Tobacco Harm Reduction

On Wednesday, February 26, the European Parliament voted to approve a new Tobacco Products Directive. The text adopted by the Parliament is expected to be rubberstamped by the Council of the European Union when it meets on March 14. Once it enters into force, EU member states will have two years to bring national laws into compliance with the terms of the directive.

The new directive contains all the illiberal strictures we have come to expect from such legislation: health warnings must cover 65% of the front and back of each cigarette pack and must be printed in black Helvetica bold type on a white background; cigarette packs much be cuboid in shape and contain no fewer than 20 cigarettes; all characterizing flavors—including menthol—must be banned.

But worse than these measures, which relate to traditional cigarettes, are the directive’s new rules on electronic cigarettes, which deliver vaporized nicotine without tobacco or smoke. A growing body of research indicates that these “e-cigarettes” are safer for users than traditional cigarettes, pose no health risk to non-users, and help habitual smokers to give up dangerous, combustible tobacco. Some analysts have predicted that e-cigarette sales will exceed sales of tobacco cigarettes by 2021.

But rather than welcome e-cigarettes as a route to harm reduction, the new Tobacco Products Directive seeks to undermine this fast-growing market. First, the directive introduces a new strength limit for nicotine-containing liquid of 20mg/ml. As Clive Bates notes:

… 25-30% of users use liquids stronger than this, and there is no health or internal market basis for preventing the trade in these products. The stronger liquids are important to heavier smokers and to people as they make their first switch into e-cigarettes. The result of this limit will be less switching and more relapse to smoking. The result of that: more disease and premature death.

Second, the directive prohibits print, radio and audiovisual communications “with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers.” In other words, e-cigarette manufacturers are not allowed to tell consumers about their product. For an emerging technology seeking to disrupt a long-established industry, this is disastrous. The prohibition of advertising makes it hard for e-cigarette producers to dislodge market incumbents (i.e., traditional tobacco brands) and blunts their market incentive to come up with newer, better e-cigarettes. Why bother, when companies can’t promote new products to consumers?

Third, the directive seeks to tie the e-cigarette industry in so much bureaucratic red tape that it is all but guaranteed to reduce competition and retard innovation. Smaller, independent e-cigarette brands will be particularly hard hit by requirements that they must submit to the “competent authorities” detailed notification of all new products six months before they are placed on the market. The same goes for demands that manufacturers and importers make comprehensive annual submissions on “sales volumes,” “the preferences of various consumer groups, including young people, non-smokers and the main types of current users,” and “the mode of sale of the products.”

The only way around these regulations, according to the directive, is for e-cigarettes to be recognized by national governments as “medicinal” or “medical devices.” But such categorization comes with its own heavy regulatory burden. To put it bluntly: heads you win, tails I lose. And e-cigarette producers aren’t the only losers here. Ultimately, it is to Europe’s smokers, whose lives could be longer and healthier if they switched to vapor, that the European Parliament has done the greatest disservice.