Could new EU law be nail in coffin for vaping?

A few years ago, vaping was very nearly banned in Europe.

The European Commission and the majority of the Member States planned to medicinalise electronic cigarettes. As it can take 10-20 years to get a medical licence for a product, that would have essentially outlawed vaping.

At the time, vapers across the UK and Europe mobilised, with thousands writing letters to their MEPs to tell them how vaping had changed their lives.

Their heartfelt stories won the day, with vaping winning enough support to scupper ban plans and ending in the compromise that saw vaping covered under the Tobacco Products Directive II.

The Directive was far from ideal, introducing limits on tank sizes and nicotine strength, but it allowed vaping to survive and grow.

Unfortunately, the TPD was always going to be revised, and consultations on the next TPD are already starting. And as we’ll see, the next revision could be far worse than the current TPD.

The WHO and the European Union

To understand the threat, one first has to understand the influences on the EU which are many, varied and rarely pro-vaping.

Perhaps the biggest is the World Health Organisation (WHO).

Many believe the WHO is influenced by billionaire IT and media mogul, and potential presidential candidate, Michael Bloomberg.

Bloomberg is the WHO Ambassador on non-communicable diseases. Bloomberg’s charitable foundation paid for the WHO report on tobacco.

Bloomberg wrote the foreword for it:

while Clive Bates, former director of Action on Smoking and Health, believes Bloomberg staffers provided input into the document.

According to the New York Times, the former New York mayor has spent over 160 million dollars on a campaign against vaping, while E-Cig Click writes that the billionaire has simultaneously invested, via VC group Village Health, in a pharmaceutical alternative (Hale).

(Most mentions of Bloomberg on Village Health have been removed since this news first broke, but you can still see Bloomberg featured on the website via the WayBack Machine.)

Bloomberg is promising, if he becomes US president, a ban on vaping flavours, with nicotine levels pushed to non-addictive levels.

That’s despite the fact that a disease caused by illegal cannabis products, EVALI, demonstrates the danger of forcing products on to the black market.

So, given this alleged influence, perhaps it’s not surprising that the WHO argues that vaping:

  • increases the risk of heart disease and lung disorders (possibly influenced by the now retracted Glantz study, certainly not influenced by the only medium term study of vaping which shows it reverses harm from some smokers diseases)
  • causes the respiratory disease EVALI (despite the fact that research shows it is actually caused by illegal cannabis products)
  • causes harm to non-users
  • should either be banned or regulated

And that WHO officials are saying things like:

Vaping is a treacherous and flavored camouflage of a health disaster yet to happen if no action is taken now.

How much does all this matter:

A clue comes from TPD2 Recital 7, which says:

Legislative action at Union level is also necessary in order to implement the WHO Framework Convention on Tobacco Control (‘FCTC’) of May 2003, the provisions of which are binding on the Union and its Member States………[…]

In summary, it appears that a billionaire businessman who hates vaping is, at least partially, paying for and writing the WHO’s position on vaping, the WHO is seriously anti-vaping, and the position the WHO takes is legally binding on the EU.

The UK has lost influence over vaping – but could still be affected

UK MEPs were a key influence in the previous TPD, with a majority voting against a EU ban on electronic cigarettes.

Graph showing how MEPs from different parties voted for the EU Tobacco Products Directive.

Now we don’t have any MEPs, or any say in the EU. However, even after our full exit, depending on the outcome of extremely complicated Brexit negotiations, we could still be affected by those EU rules.

Still, as one of the few countries that is vaguely pro-vaping, the UK could play a valuable role in the fight for vaping in the future.

Perhaps the most important role could be to represent vapers and the tobacco harm reduction community at the WHO Conferences of the Party (COP).

But don’t count on it – after all, some of the most fervent supporters of vaping and tobacco harm reduction in our parliament have recently retired.

TPD III: What’s happening right now?

The EU is currently polling members for feedback on the current TPD. A report needs to be finalised by May 2021, but the EU’s position on future legislation will also be determined at the WHO COP later in 2020.

Studies are also being run. The directive for one of the studies is overwhelmingly negative, asking scientists to investigate:

  • their use and adverse health effects (i.e.; short- and long-term effects)
  • risks associated with their technical design and chemical composition (e.g.; number and levels of toxicants) and with the existing EU regulatory framework (e.g. nicotine concentration and limits)
  • their role as a gateway to smoking / the initiation of smoking (particularly focusing on young people)
  • their role in cessation of traditional tobacco smoking

Unfortunately, as Professor Farsalinos has pointed out in the 2018 E-Cig Summit, when you only look for the problem, you only find the problems – even when they’re not there.

How TPD III could impact vapers

There’s currently very little information on what’s being included.

However, there are clues, for example from what’s being discussed in the EU parliament, as well as key quotes such as this one from Arūnas Vinčiūnas, former head of cabinet for EU Health Commissioner Vytenis Andriukaitis:

E-cigarettes may be less harmful, according to some reports, but they’re still ‘poison’ .

Here’s what could be included in TPD III.

  • Flavour ban: Several EU countries have already banned flavours in vaping, with one reporting on the experience to the EU, so there’s clearly an appetite for this in parts of the EU.
  • Taxation: While I don’t know what will happen with taxation, a recent ECig Intelligence report found that the majority of countries in the EU are in favour of a uniform tax on vaping. This could occur separately in the revision of the European excise Directive on tobacco.
  • Further advertising restrictions: Some limited advertising is still allowed (e.g. posters in shops). This could be further restricted.

A potential worst case scenario is where the EU adopts US regulations, leading to a de facto ban on most products.

Alternatively, the cost of compliance could become so high that only tobacco companies are able to continue to supply e-cigarettes, stifling innovation, crushing competition and leading to higher prices for vapers.

What can vapers do about TPD III?

Fortunately, the UK vape industry has two trade organisations to represent it.

Both are needed – one is independent of the tobacco industry, and can speak free of tobacco industry influence, the other can draw on the resources of the tobacco industry.

But trade bodies aren’t enough. Even a trade industry independent of the tobacco company will never be fully trusted.

Advocates and vapers are different. People who have switched to vaping, and experienced the changes in their lives, can make a real difference by sharing their stories.

After all, while we can share data till we’re exhausted, people’s brains (including politicians’) are tuned to respond to stories far more than statistics.

To do so, advocates need to get organised. Back when vaping in the EU and the UK was under threat, there was a huge amount of activity taking place. But many vapers have grown complacent since then.

All we have now is a small group of advocates under the umbrella of the underfunded (the organisation refuses all donations from industry) New Nicotine Alliance.

If you care about vaping, join them.

It’s free – and it might just save your life.

Sources & Resources:

Bates, C: World Health Organisation fails at science and fails at propaganda – the sad case of WHO’s anti-vaping Q&A CliveBates.com, Jan 2020

Page, B: EU states give a big thumbs up to tax harmony on e-cigs and heated tobacco E-Cig Intelligence, Feb 2020

Bloomberg Takes on Vaping After Giving $1 Billion to Fight Tobacco New York Times, Sept 2019

Envi: The Green Monster That Got Me Thinking, Feb 2020

E-Cigarettes: How risky are they? WHO Q&A, Jan 2020

MEETING OF THE GROUP OF EXPERTS ON TOBACCO POLICY: European Commission, Oct 2019

Scientific Committee on Health, Environmental and Emerging Risks (SCHEER): Request for a scientific Opinion on Electronic cigarettes European Commission

WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC WHO, 2019

A big thanks to Cecilia Kindstrand-Isaksson from Swedish Match for her help with this post, which included pointing me to towards resources and fact checking the draft. As usual, any mistakes in the final version are my own.

2 thoughts on “Could new EU law be nail in coffin for vaping?

  1. “Back when vaping in the EU and the UK was under threat, there was a huge amount of activity taking place. But many vapers have grown complacent since then.”

    Back then, the message was to defend the vapers interests and vaping advocates took care not to take a stance in the extremely polarised smoking debate because that would divide us. Nowadays the message from the new generation harm reduction advocates is focussed on stopping smoking. I would not call it ‘complacent’, but indeed many vapers do not endorse the never-ending witch-hunt on smokers.

    “the WHO Framework Convention on Tobacco Control (‘FCTC’) of May 2003, the provisions of which are binding on the Union and its Member States”

    The UK contributed 391 votes in the European Citizens Initiative to take vaping out of the TPD, which is the legal implementation of the WHO-FCTC provisions in the EU. Giving vaping its own framework in a separate EU-directive would reduce the influence of the WHO and the Bloombergs considerably and would be the best thing that could happen to vaping. But since the ECI didn’t focus on quitting smoking it got boycotted in the UK, and many other member states that follow the lead of the UK.

    “Perhaps the most important role could be to represent vapers and the tobacco harm reduction community at the WHO Conferences of the Party (COP).”

    This also implements that the influence of the WHO (and at present day this includes the Bloombergs) on the TPD is confirmed and strengthened. With the TPD3 around the corner let us hope for the best, but my sense for realism dictates me to focus on preparing for the worst. Back then, the millions of letters and e-mails in favour of vaping did make the difference. But in a democratic political area like the EU-parliament 391 citizens will not impress and THR-advocates who consider themselves as a stop-smoking-service by excellence and lack any grass root support worth mentioning either.

    It is a huge misconception to presume the tobacco harm reduction groups (they are way too small and splintered to be called a community) represent the vapers at large. When the switch from consumer advocacy to TRH advocacy took place the message changed from “we want decent vape regulation” to “we’re on a quest to save lives so we don’t care about vapers, they already quit smoking” and now we are going to pay the price for that in the TPD3. The THR ‘community’ is dreaming out loud to have the same influence as Bloomberg in the WHO-COP and thus on the TPD,…

    “But don’t count on it”

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