In accordance with our stated position in previous posts, nothing has changed in ECITA’s view concerning the TPD proposals on electronic cigarettes. There may be one or two of our members who might take a slightly different view, but I know with absolute certainty that this post represents the views of the vast majority of our members.
First of all, I really must acknowledge the sterling efforts of a small number of our elected representatives, who have battled long and hard to TRY to make some sense out of this rather senseless regulatory proposal. Martin Callanan, Rebecca Taylor and Chris Davies were the first and most insistent about trying to get it right, and Frédérique Ries has been equally tireless in her efforts to make good policy. It is not their fault that the Commission and Council have messed it up so badly. We hope that at least some of them will want to continue to fight for the right regulation, and not accept that the current iteration is the best we can hope for. It is simply not good enough.
However, since many public officials and bodies like to generically refer to ‘industry’, I wanted to just set out our stall, very clearly, so that you can see where a generic ‘industry’ position is not necessarily in harmony with ECITA’s consistent position, which has never changed, and will not (because it does not need to). (That may well be stubbornness, but I don’t believe it’s arrogance; I just believe in electronic cigarettes, properly and appropriately – and proportionately regulated. If that is not possible in the context of ‘the Art of the Possible’ then the political system is dangerously broken. That may or may not be the case, but this legislative proposal is most certainly broken – beyond repair.)
Since going into the full detail of the ‘final text’ is going to be rather long-winded, I’ll just clarify what we would like to see happen:
In our view, the right thing to do would be to replace Article 18 as currently drafted with a mandate to the Commission to follow all the necessary procedures and come back with a robust new legislative proposal within an appropriate time frame. That might be 3 years; it might be longer; or it may take less time. This would also allow the other measures in the TPD – the ones which actually relate to Tobacco Products – to be adopted in a timely manner.
The time it takes is less important than the robustness of the process. Firstly, they need to consult – properly. They have never done so for NCPs or electronic cigarettes. At no stage of this TPD revision have they ever consulted the public, stakeholders, NGOs, industry, Member States, etc., as to what sort of regulation is needed for electronic cigarettes. During the public consultation process for this revision of the TPD, the only question consulted on relating to electronic cigarettes was whether or not they should be included in the scope of the TPD. That is not a proper consultation, such as they are required to undertake.
As part of a proper consultation process, the Commission should undertake a risk assessment, and an impact assessment. These should involve gathering robust evidence from a wide range of sources, and these should be presented together with the public consultation documents, for scrutiny by stakeholders and other interested parties. They have never done this for NCPs or electronic cigarettes.
Once all this information has been gathered, the Commission, should present the findings of the consultation process and publish the outcome.
Obviously, having not done a consultation on this, they haven’t been able to present the findings or publish the outcome!
At the end of all that process, the Commission would be in a position to formulate a legislative proposal. This should include very clear, evidence-based justifications for the proposal. They have never done this for NCPs or electronic cigarettes. What we have had to endure instead is a series of new legislative proposals, with no evidence-based justifications, in a dog’s breakfast of a process.
The final – and perhaps most vital – stage is for the proposal to be presented to all the Member States for scrutiny. Then, and only then, it would be ready to go through the Parliamentary Committees, to plenary, and trilogue, and onto the books as a new Directive or other Statutory Instrument.
So this is ECITA’s clear message on this issue:
Do the work first, then bring forward a proper legislative proposal, as opposed to what there is now.