EU Committee savages Tobacco Products Directive

This is turning into quite the good news week. Not only do numerous reports say that the UK government has dropped the barmy plain packaging plan, but the EU Committee on Legal Affairs has savaged the draft Tobacco Products Directive.

Firstly, the committee criticises the insupportable de facto ban on e-cigarettes (and, implicitly, the prohibition of snus). It also makes the important point that manufacturers should be able to say that one product is less hazardous than another if the claim can be supported by science.

By prohibiting any labelling that suggests that a particular tobacco product is less harmful than others, the proposal causes an additional problem. The development and promotion of less harmful means of tobacco use is essential in order to support tobacco users to stop smoking cigarettes and the like. Manufacturers must be able to communicate that a certain product is less harmful than others if this is scientifically proven and if it is not misleading. This is not the only measure proposed that would make it more difficult to access reduced risk products. Article 18 of the proposal prohibits nicotine-containing products (NCP) such as e- cigarettes containing a certain nicotine level if they are not authorised pursuant to Directive 2001/83/EC (the Medicinal Products Directive). It is, however, quite unclear if these products (which are much less harmful than tobacco products) even fall under the scope of the Medicinal Products Directive. For products which do not fall under the Directive, this would effectively constitute a ban. Banning products which are less harmful than tobacco products and which can be a means of smoking cessation is certainly not in line with the public health aims of the proposal.

Consequently, the committee recommends that the sections pertaining to 'nicotine-containing products' (ie. non-tobacco products) should be deleted from the Tobacco Products Directive entirely. Rightly so.

It also notes that there is no 'market harmonisation' justification for banning menthol and slim cigarettes.

...it is difficult to see how the proposed (de facto) ban on menthol and on slim cigarettes could improve the functioning of the internal market. It is true that even prohibitions may, in certain circumstances, be regarded as harmonising measures, but this is only the case where "there are obstacles to trade or it is likely that such obstacles will emerge in future". Currently, however, not a single Member State has banned slim cigarettes or menthol or is even considering it. Thus, the ban will neither remove nor prevent the emergence of obstacles to fundamental freedoms.

It also rejects the idea of putting massive health warnings on tobacco packaging, let alone of introducing plain packaging. Like many other legal experts, they note that such is an infringement of intellectual property rights.

Some provisions in the Commission's proposal also raise serious doubts as to their conformity with fundamental rights such as the right to property, the right to freedom of expression and information and the freedom to conduct business. These rights are enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”) and may only be limited pursuant to Article 52(1) of the Charter if the limitation is necessary, genuinely meets objectives of general interest and is proportional.

Certain of the proposed measures, especially regarding the packaging, do not meet these requirements. One example is the proposed increase in size of the health warnings to 75% of both the front and back surface of the packs (Article 9(1)(c)). This would severely reduce the space available for trademarks and product description. In practice, not even 25 % of the front and back surface would be available for the information provided by the producer, as national law requires additional features such as tax stamps and security features.

Intellectual property rights such as trademarks are explicitly covered by the right to property in Article 17 of the Charter. The CJEU held that warnings on the unit packages are admissible "in a proportion which leaves sufficient space for the manufacturers of those products to be able to affix other material, in particular concerning their trademarks". Reducing the space available on the front and back surfaces to less than 25% would, however, make it difficult to sufficiently distinguish the products of one producer from those of others, thereby depriving the trade marks of one of their main functions. The trade marks could also not properly fulfil their other functions such as its advertising function. This would also not be in accordance with national constitutional law as well as international treaties such as the TRIPS Agreement.

Bearing in mind the impact on intellectual property rights, it is more than surprising that the Commission did not even consider less restrictive measures such as smaller health warnings. Taking into account the importance of intellectual property rights and legitimate health objectives, it is suggested that health warnings should cover 50% of the front and back surface.

The committee also recommends that the section of the Directive which authorise the European Commission to reduce nicotine yields in cigarettes be deleted. It also opposes the pointless and bureaucratic regulations about the dimensions and size of cigarettes and their packets.

In short, it attempts to bring some sanity and common sense to the European Commission. Good on them. Let's hope MEPs are paying attention.