Counsel Opinion Confirms No Justification for Changes to E-Cig Regulation

Sir Francis Jacobs QC, President of the European Law Institute and former Advocate-General to the European Court of Justice describes the proposed ban on e-cigs as “an unreasonable measure which is liable to be annulled as being contrary to the principle of proportionality and/or the principle of non-discrimination.

At the request of ECITA (EU) Ltd, Sir Francis Jacobs has provided his expert Opinion on the Commission’s proposals for a revised Tobacco Products Directive, as they pertain to electronic cigarettes. There are one or two surprises, but it comes as no surprise whatsoever to the growing community of vapers, who have already made the switch to electronic cigarettes, often entirely replacing their smoking habit, that Sir Francis is of the opinion that the proposed change to the regulation of these revolutionary products:

represents a very extreme and intrusive form of regulation.

In summary, Sir Francis concludes:

As far as we are aware, those (few) national courts that have addressed this issue to date have held that, on the facts of the cases before them, electronic cigarettes are not medicinal devices.”

Elsewhere in his Opinion, Sir Francis specifically mentions the MHRA in the UK:

In the UK, the MHRA has recently announced that it intends to subject electronic cigarettes to this [medicinal] kind of regulation by 2016. [...] we would expect future [court] decisions to follow the clear trend of the existing case law, which excludes them from the definition of medicinal products by function on the basis that they are effectively a substitute, not a cure, for conventional smoking.” [Our emphasis.]

Sir Francis finishes by stating:

…we are of the opinion that by effectively excluding a significant proportion of electronic cigarettes from the EU market Article 18(1) is manifestly inappropriate to the objective of removing barriers to intra-state trade and thus contrary to the principle of proportionality, and is also unjustifiably discriminatory towards manufacturers of electronic cigarettes by comparison with manufacturers of tobacco cigarettes. This provision of the revised TPD would therefore be likely to be invalidated by the Court of Justice on a reference under Article 267 TFEU.” [Our emphasis.]

Time for an honourable climb-down from the proponents of this proposal, methinks.

This entry was posted in EU, MHRA, WHO. Bookmark the permalink.

15 Responses to Counsel Opinion Confirms No Justification for Changes to E-Cig Regulation

  1. vereybowring says:

    I hope to see this made available to us all to pass along to our political representatives.

    I also hope there is a camera present when certain persons such as Jeremy Mean and Linda McAvan are given this.

  2. Helen Tagg says:

    At last some one who has a clear, reasonable, un-biased, and financially disinterested opinion. It’s so refreshing to read a statement such as this, that is, in my opinion a rare advantage, TRUTHFUL.
    There are so many “advised” opinions around, that are in reality based on false facts, and pecuniary interests.
    For me the Electronic Cigarette has put a stop to 45 years of heavy smoking, and now it’s a whole year that I haven’t smoked. I feel better healthwise, and psychologically calmer, with at least one health risk finished with. Ecigs are the only way I’ve ever managed to stop smoking, and it would be a shame to not give the same chance to others, in banning the Ecig.
    My deepest respects go to Sir Francis, and I hope that his opinion will be taken into consideration by others. :D

  3. judy smith says:

    I was a smoker of about 30+ a day roll ups…..i also have tried all the nrts going, even paid £300.00 for hypnosis….didnt work, since using the electric cigs i have not had a cigarette for 1 year and 29 days. Respect to Sir Francis i also hope his opinion will be taken notice off

  4. Moggy The Vaper says:

    An opinion steeped in both common sense and lawful insight. Much like my vaping journey, a breath of fresh air.

    I applaud an unbiased and factual made statement, which has nothing but the interests of the ‘users’ best interests in mind.

  5. Pingback: Proposed EU eCig Rules Likely on Shaky Legal Ground

  6. Alan Fletcher says:

    If I held the sword I would re-knight you again Sir.

  7. Clive Bates says:

    There’s a very important point here. The fact that the tobacco directive would require e-cigarettes to be regulated as medicines doesn’t magically make them compatible with the definition of a medicine in the medicines directive. In effect, the e-cig vendors would be forced to make a therapeutic claim in order to qualify as a medicine. Having been so forced, they’d thn have to prove a claim they never wanted to make. Extraordinary!

    Looking forward to seeing the full opinion.

  8. Josef K says:

    It would rather make a redundant mockery of the medicine by presentation aspect of the MPD should every NCP be forced through the eye of the medicine by function needle. Who would need to make a claim?

    We all knew that challenges would come even if the heavens fell and the meanies got their way.

  9. Carol Ann says:

    As long as I have my e cigs I have no temptation to smoke. I’ve tried many types of NRT over the years and have been able to quit for varying periods but always went back. With the e cigs I’ve gone easily from 16 mg down to 6 mg and hope to take that down to zero in time. There are many sites that offer 0 nicotine e cigs and liquid so there must be plenty of people who have done it! I hope many more people will be able to do it in the future!

  10. Jonathan Bagley says:

    Excellent news. “….. they are effectively a substitute, not a cure, for conventional smoking.” Looking forward to hearing the arguments against that when it comes to court.

  11. Pingback: 2000 Black Balloons to be Popped outside Brussels

  12. Pingback: ENVI Committee Votes On TPD (and E-Cig) Revisions

  13. Pingback: Ex Advocate-General to European Court says proposed ban on ecigs unreasonable

  14. Ric McCoy says:

    All of this relies on a stigma that electronic cigarettes are tobacco cigarettes and they are not even close. I hate to call an electronic cigarette a “Cigarette” for they really have nothing in common with a real cigarette other than you can purchase eliquid that has tobacco flavor. Most individuals can and will quit tobacco cigarettes using the electronic cigarette and 99% of them will start out using tobacco flavor e liquid, but change quickly to non-tobacco flavored eliquids. All of the products that are used in e-cigarette liquid has been used in millions of products without any adverse affects, then the electronic cigarette is a healthier alternative to smoking tobacco cigarettes and should always be considered a viable source to help smokers live a healthier lifestyle and not banned because they have the “Cigarette” word attached.

  15. Adelle says:

    As a small, independent E-cig specialist retailer – we have seen so many customers switch from tobacco cigarettes over the last two years. It’s great to hear their success stories. Many enjoy smoking but know they risk their health, so they want an alternative – not a means to quit. Sure, a few customers want to get off the nicotine, but some of them are now on zero nicotine flavours because they still enjoy the ‘sensation’.
    There are so many brands and such variety of liquid flavours, plus so many variants of vaping devices that no pharmaceutical outlet would want to, or be able to offer the space and time to help customers choose what’s right for them.
    If such legislation were to be passed it would severely restrict consumer choice – and success in staying off tobacco cigarettes.
    We agree that there may be dubious quality liquids out there… but there are ways to regulate this without putting them under pharmaceutical controls.
    They don’t restrict the sale of the original tobacco ‘death sticks’ do they?
    In addition to providing a healthier alternative, for the first time in ages we have a thriving, growing sector – providing jobs and encouraging entrepreneurship.
    With this legislation many young and growing businesses will fold and jobs will be lost for the sake of greedy corporations who are trying to take over this market.
    For once give the little businesses a chance -and let people choose… we’re tired of being told what to do by corporations who push, not really for health interests, but for their own wealth interests!!

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>