Reasons to regulate e-cigarettes as consumer products

The medicalisation of e-cigarettes has been portrayed as a way of putting them ‘on an equal footing’ with NRT, but this ignores the pertinent fact that the pharmaceutical industry wanted their nicotine products to be authorised as medicines so that they could be marketed as drugs and sold to state-run health agencies. There is no other precedent for ‘nicotine delivery devices’ being viewed as medicines and there are no calls for the most widely sold ‘nicotine delivery devices’ - tobacco products - to undergo medical authorisation. The e-cigarette industry maintains that its products are not medicinal drugs, but are recreational consumer products which can be used an alternative to smoking. There is no compelling reason why products containing nicotine should be medicalised when products containing caffeine, alcohol or sugar are not. Normal consumer protection laws should suffice.

Like other governments that have dealt with e-cigarettes in a heavy-handed manner, the EU is endorsing the same neo-prohibitionist approach that led to the disastrous missed opportunity with Swedish snus. Other proposed regulations in the directive are reductio ad absurdum variants of orthodox tobacco control measures which, as the previous chapter showed, have little or no impact on smoking rates. These include mandating still larger graphic warnings, standardising the exact length and diameter of cigarettes and banning ‘characterising flavourings’. By tying itself up with such trivial issues, the EU is living up to its stereotype as a bureaucratic machine that produces unnecessary and petty regulation.

The most visible effect of a ban on ‘characterising flavourings’ will be to prohibit the sale of menthol cigarettes, but it will also result in a de facto ban on a wide range of snus brands in Sweden (which are usually flavoured) as well as most e-cigarette fluids. Here, as elsewhere, the Tobacco Products Directive is stacking the deck against harm reduction while introducing arbitrary regulations for the cigarette industry. The directive will require medical authorisation for most ‘nicotine-containing products’ and will require pre-authorisation for any new tobacco product. Moreover, it will prohibit any labelling that might suggest that one product is less harmful than another. In short, it will not only kill off the two most promising reduced harm products, but will prevent any new innovations from hitting the shelves in the future. The effect will be to slice up the European nicotine market, dividing the spoils between cigarette companies and the pharmaceutical industry.

Harm reduction for smokers would save many more lives than harm reduction for drug addicts and it would not require a penny of government spending. It only requires the government to step back and allow free market solutions to gain popularity. In practice, this means taxing and regulating e-cigarettes as ordinary consumer products to ensure basic standards of quality while allowing snus to be sold with appropriate and accurate labelling to inform customers of its risk profile relative to cigarettes.

The neo-prohibitionist approach to public health has raised barriers to entry and excluded new entrants, thereby making the nicotine market less competitive and less innovative. Meanwhile, the cigarette industry continues to be highly profitable as a heavily regulated oligopoly, as Dr Robert Branston, Deputy Director of the University’s Centre for Governance and Regulation, acknowledges: ‘The market has failed to curb cigarette manufacturers in terms of pricing power and profit, and tobacco control policies have unintentionally exacerbated the problem.’ 

Consumers suffer in uncompetitive markets from higher prices and limited choice. Neither of these are seen as problematic by anti-smoking campaigners who view higher cigarette prices as desirable, but a more serious problem arises when safer products are preemptively banned under the precautionary principle or cannot be brought to market due to advertising restrictions and heavy bureaucracy. As former ASH director Clive Bates puts it, ‘if you over-regulate a new, disruptive, low-risk alternative to the dominant and deadly cigarette, you simply protect the worst products from competition.’ Whether by accident or design, the beneficiary is the incumbent industry, rather than the consumer.

We argue that the interests of consumers are nearly always better advanced by the provision of accurate information and free choice than by prohibitions and restrictions on commercial speech. Markets can correct themselves more quickly than governments. Market failures can be corrected by free enterprise long before government failures are even acknowledged, let alone rectified. Transforming a free market into a ‘dark market’ carries significant risks which are well understood by students of Prohibition and the War on Drugs. Restrictions on product development and marketing in the nicotine industry have led to information failures which have led, in turn, to further failures of both government and the market. Buttressed by political grandstanding, corporate rent-seeking, rigid ideology and old-fashioned puritanism, the result has been a disaster for the only group of people whose interests are of direct relevance: smokers.

From Free Market Solutions in Health: The Case of Nicotine 

PS. With the big vote on the Tobacco Products Directive coming tomorrow, the public health racket has closed ranks, with editorials in support of medical regulation appearing in the BMJ and the Lancet, plus a pisspoor op-ed from statist trougher Martin McKee and a letter from the usual suspects in the Telegraph.

There is an amusing rebuttal to McKee here and Clive Bates picks apart Linda McCavan's lies here. The rapid responses to McKee are also worth reading. Expect a final flurry of propaganda from the medical establishment and the EU-funded press over the next 24 hours.

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