Legal challenges to EU Tobacco Products Directive fail

Unfortunately, though not unexpectedly given the Advocate General's opinion before Christmas, Totally Wicked's legal challenge to Article 20 of the Tobacco Products Directive, has been rejected.

Here's the press release from TW...

Today the Court of Justice of the European Union (CJEU) has given its judgment on the legal challenge to Article 20 of the Tobacco Products Directive. This challenge was brought by UK independent e-cigarette manufacturer Totally Wicked.

The judgment can be read in full on the CJEU website.

Totally Wicked was the only independent electronic cigarette manufacturer to win the right to challenge this Directive which sought to bring e-cigarettes and e-liquid within its regulatory scope as "tobacco related products" – despite not containing tobacco - and subject e-cigarettes to more stringent regulation than some conventional tobacco products.

Electronic cigarettes are a revolutionary product. They are at least 95 per cent less harmful than tobacco products and are recognised as the number one tool used by smokers to quit smoking. Left to develop under proportionate consumer regulation, e-cigarettes have the potential to render tobacco cigarettes obsolete and prevent millions of deaths from smoking.

Totally Wicked believes that the TPD will adversely impact the availability of good quality, electronic cigarettes and e-liquids, and jeopardise the life-changing potential of vaping, resulting in a major detrimental impact on the public health of millions of people across the EU.

Specifically, Totally Wicked’s challenge was based on its view that Article 20 of the TPD represents a disproportionate impediment to the free movement of goods and the free provision of services, places electronic cigarettes at an unjustified competitive disadvantage to tobacco products, fails to comply with the general EU principle of equality, and breaches the fundamental rights of electronic cigarette manufacturers.

Totally Wicked’s challenge was supported by nearly 100,000 vapers from across the EU who signed a petition that was delivered to the UK Department of Health.

Fraser Cropper, Managing Director of Totally Wicked said:

“Today is a bitterly disappointing end to a battle that has lasted more than two years. At its heart, was a fundamental dispute between those who recognise the public health potential vaping offers and therefore wish to see these products and their use flourish under a robust yet proportionate consumer regulatory regime, and those who either do not understand vaping or see it as a threat to established interests and therefore wish to see e-cigarettes subjected to a disproportionate and inappropriate regulatory regime.

Article 20 of the TPD will result in electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products. Not only is Article 20 disproportionate, I believe, irrespective of this judgment, it is also contrary to established EU law. I am therefore disappointed, yet unsurprised, given the level of misinformation and vested interest at the heart of this Directive’s drafting, that the EU Court of Justice has ruled against our legal challenge. The judges have fundamentally failed to hold the European Parliament to account. Our case provided the court an opportunity to consider in the fullest of time they had, all evidence on the significant benefits vaping is bringing to the lives of millions of smokers across the European Union. They choose however to ignore this welter of evidence. The practical consequences of this abysmal regulation is now being manifest across Europe. Rather than bring harmonised rules it has allowed for 28 discordant and disharmonised national regulatory regimes to be adopted. Most of these interpretations will either destroy the nascent vaping industries across Europe or significantly hinder legitimate business and impact potentially catastrophically, access to vaping products that European smokers should have been allowed access to.

For the sake of e-cigarette users and potential users, it is vital that our industry is allowed to mature within a proportionate regulatory framework, which supports appropriate controls and safety requirements, and necessary social responsibility and continues to provide consumer choice to maximise the enormous potential of these products. Article 20 of this Directive patently will not deliver this environment. Those who wish for vaping to be consigned to the annuls of history, will judge today a success. They will use the ruling as further evidence of the righteousness of their position, they will expose again the misinformation, in easily digestible bites, that has been used so often to malign our products and sector whilst laying claim to the moral high ground. In time I firmly believe that the European Commission and others who support the TPD will come to realise the terrible mistake they have made or eventually be shown to have used the power of the European legislature for vested and craven self-interest. Our business and informed and justifiably angry vapers across Europe will continue to attempt to hold these organisations and individuals to account”

Susan Garrett, the Partner leading the team at Addleshaw Goddard LLP mounting the challenge said:

"Totally Wicked believed that the Tobacco Products Directive was a misconceived and disproportionate attempt to regulate electronic cigarettes. Today's decision is clearly disappointing for our client; given the impact it believes the Directive will have in stifling this emerging market.

We were pleased to support Totally Wicked in pursuing this landmark challenge to the lawfulness of the Directive, and we are as disappointed as our client that the EU Court of Justice did not rule in their favour.”

The legal challenge to the tobacco regulations, such as the ban on menthol, has also failed.

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