While anti-smoking organisations cheer the news that the European Court of Justice has confirmed that plain packaging is lawful under the Tobacco Products Directive, vapers and vapour product vendors throughout the EU will be in mourning, as the ECJ, wrongly, in this writer's opinion, confirms that Article 20 thereof is legal and legitimate.
In its judgement, the ECJ rails against all scientific evidence and confirms that Article 20 will continue unassuaged.
"Concerning the special rules for electronic cigarettes, which provide, inter alia, for a duty on manufacturers and importers to submit a notification to the national authorities for any product which they wish to place on the market (with a six-month standstill period), specific warnings, a maximum nicotine content of 20 mg/ml, a leaflet requirement, a separate prohibition on advertising and sponsorship and annual reporting obligations, the Court notes that electronic cigarettes display different objective characteristics from those of tobacco products. Therefore, by submitting those cigarettes to a separate legal regime which is, moreover, less strict than the one applicable to tobacco products, the EU legislature has not infringed the principle of equal treatment.
In addition, the Court points out that, taking into account the growing market for electronic cigarettes and refill containers, the national provisions governing the conditions which those products must satisfy are in themselves liable, in the absence of harmonisation at Union level, to constitute obstacles to the free movement of goods. The Court also notes that, by allowing the Member States to prohibit the cross-border distance sales of electronic cigarettes and refill containers and by imposing certain common rules on the Member States which do not prohibit those sales, the directive enables the Member States to ensure that the rules on conformity are not circumvented.
The Court points out that the identified and potential risks linked to the use of electronic cigarettes have led the EU legislature to act in a manner consistent with the requirements stemming from the precautionary principle. In that regard, submitting electronic cigarettes to a notification scheme does not seem manifestly inappropriate or manifestly beyond what is necessary to attain the objective pursued by the EU legislature. In addition, the Court rejects the argument that the obligation on manufacturers and importers of electronic cigarettes and refill containers to submit each year, to the competent authorities of the Member States, certain data enabling those authorities to monitor the development of the market infringes the principles of proportionality and legal certainty. Similarly, by fixing the maximum nicotine yield which may be contained in the liquid of electronic cigarettes at 20 mg/ml, the legislature has not acted arbitrarily or manifestly exceeded the limits of what was appropriate and necessary in order to achieve the objective pursued by the directive."
Thus, nothing changes in regard to the implementation of the TPD throughout the EU. Taken alongside very recent changes to cross-border sales rules, which make it all but impossible for vendors to trade internationally without jumping through extremely onerous hoops, and at massive costs (registration of both the business and products in foreign member states - wither "harmonisation"?) the legitimate market in ecigarettes is about to take a massive fall. By May 2017 how many legitimate ecig businesses will there be?
One thing is for sure. There will be a massive and complex black market operating. While we, in the UK, will, no doubt, "get by" - by virtue of the least onerous implementation of an extremely bad law - will Vapers in the rest of the EU be able to take advantage of that and purchase "legitimate" product from us, while we also operate a huge black market in over-strength nicotine containing eliquids?
This judgement, and the TPD in general, pretty much ensures that folks will now seek to import 99.9% pure nicotine from the orient. That will not be safe. It probably won't be 99.9% pure, either. Lord only knows how many folks, once all has come to all, will simply shrug and toddle off to the corner shop to buy drab packaged tobacco Ecigs as they discover that their needs cannot be met legitimately.
In all, then, a disappointing day. I look forward to seeing responses to the judgement from ASH, CRUK, RCP, PHE, Fresh and their colleagues, alongside other outwardly supportive organizations. Their take on it will inform my opinions going forward.
Pissed off? You bet I am.
Surprised? No, not really.