Tuesday, 25 August 2015

Drafting A TPD2 Consultation Response

A UK Government consultation on the EU's appalling dog's breakfast Tobacco Products Directive finishes on September 3rd so I thought we might have a bash at it, whaddya reckon?

As most of you are aware, these things are really just an exercise in government pretending it is listening to the public. The vast majority of responses come from state-funded quangos and lobby groups so they are better termed public sector consultations. However, over time we have learned the rules, as I mentioned in June last year.
So, what we can gather from what modern politicians laughably call public consultations is that if a postcard or quick click response is in favour of what they and their pet powerful vested interests want to do anyway, they'll shout it from the rooftops. But if it's not, it's time for plan B and to only look at the "detailed responses" which - of course - are mostly submitted by organisations whose only job is to do so on state-supplied wages. 
It stinks, as I'm sure you'll agree, and not something restricted to just this issue - this kind of abuse of democracy is happening every day in any number of different government departments, most of it beneath the radar of anyone but those who are paid to lobby Westminster. This is why ... you should consider adding a "detailed response" to this new second consultation. Regular readers of this blog will remember that many of us did exactly this for the original consultation back in 2012, which I'm sure had an impact in restricting the biased farce to only a narrow 53%/43% split.
As with previous posts of the same nature on this blog (see here, here, here, here, here and here), I'll give you the questions beforehand with a rough idea of how I'd answer them, just pick and choose anything you like the look of. Oh and, as many fellow jewel robbers have done before, any emails of your own submissions are always a great read so most welcome.

Firstly, the TPD2 can be found here. You can post your responses or email them via the addresses below:

Tobacco Products Directive Consultation
Department of Health
PO Box 311

However, there is also an online survey you can use which is also saveable so you can come back to it later if you wish. This is the method I'll be using for this guide. 

Now, before we start it's worth noting that this consultation is not like those previously. Before, there were questions which went right to the root of the proposed legislation, but this being an EU directive, the UK government has no choice but to implement it despite it being utter shit (doesn't that make you proud to be in the EU?). So the questions just fiddle around at the margins without actually giving an option to object to the the fundamental failures in its drafting. This is particularly relevant when it comes to the measures pertaining to e-cigs, which were laid down in early 2014, are already out-of-date, and were written by people who haven't the first clue about the devices or how they work.

Anyway, onto the questions, such as they are. 
Do you, or the business or organisation you represent, have any direct or indirect links to, or receive funding from, the tobacco industry?
The usual question designed to weed out anyone who is paid to give the other side of the debate to those who are paid by governments to bully people. The answer is obviously no, but you might want to ask why there's no corresponding obligation to declare links and/or funding from the pharmaceutical industry or, indeed, by governments to justify their existence and salaries by demanding things such as, ooh say ... the EU Tobacco Products Directive. 
1 Should the Government request peer review of any reports submitted by the tobacco industry in relation to certain additives contained in a priority list of additives?
Well, yeah, could do that I suppose. But at the same time, how about having a close look at the peer review fiasco with the tobacco control industry, which in many cases seems to be about as rigorous as checking the spelling in their unutterably mendacious junk studies. 

On labelling and warnings.
2 The Government intends to implement this provision of the Directive to mean images, targeted at consumers, that are used to promote the sale of products, such as retailer websites offering products for sale. Do you agree with this approach?
No, of course not. This, believe it or not, is about making Sainsbury's hide pictures of what they sell on their website. It's not enough that cigs are behind screens and soon to be covered in plain packaging, children have obviously not been protected enough so the government will have to step in and make sure little 8 year old Johnny doesn't inadvertently stumble across a pic of a pack of plain packaged Silk Cut while he is doing the family online shopping with the credit card he is not old enough to own. 

Yes, tobacco control really has become this barmy. They have so very little relevance now that they are reduced to striking out a virtual image of a cig packet in order to keep their noses in the trough. Pathetic.
3 The TPD2 stipulates where health warnings should appear on packs including that the general warning should appear on the lateral surface. The Government propose to transpose ‘lateral’ (Article 9) as ‘secondary’ (defined as the next two largest surfaces of the pack, after the front and the back surfaces) in our domestic legislation. Can you tell us of any packaging shapes where this interpretation would not be the most effective approach / would not work as intended?
Good question. I'm sure there are experts in the field of tobacco packaging the government could ask. Oh yeah, forgot, they are tobacco companies and trouser-stuffing tobacco controllers have bullied politicians into not being allowed to talk to them. 
4 The TPD2 requires Member States to choose between the warnings ‘Smoking kills’ or ‘Smoking kills – quit now’. The Government is minded to require that tobacco products be labelled with the warning ‘Smoking kills – quit now’ to align with UK smoking cessation messaging. Do you have any information/evidence that would inform this choice?
Who cares? No-one looks at them anyway, they're just yet another way for the tobacco control industry to justify its pointless and self-enriching existence. 
5 Are there any other pack shapes for cigarettes, Roll Your Own (RYO) and waterpipe tobacco on the market, other than pouches and squat cylindrical tins/tubs, where there may be technical difficulties in applying any of the new health warnings under Articles 9 and 10?
Ask the tobacco companies and stop wasting our taxes with this, for crying out loud! 
6 To ensure the combined health warnings are applied evenly across each brand of tobacco product, it is proposed that images should appear on between 1/24 (4.15%) and 1/12 (8.33%) of products and each set of images in the TPD2 picture library should be rotated on an annual basis. Are there any additional costs, above and beyond the current regime, imposed by this proposal?
You're proposing additional regulations which change the way companies are forced to operate and you're asking if there are going to be costs to this? Of course it's going to impose costs! Is the next question about the impact on ground cleanliness in woods where bears live? 
7 The draft regulations require producers to ensure the correct health warning is applied to tobacco products. We are minded to treat retailers who repackage tobacco products at the point of sale the same as producers. For example, loose tobacco packaged at point of sale, should comply with the full labelling provisions, including the rotation of the combined health warning. Do you agree with this approach?
No of course not. So some vile tobacco controllers tell you that they've got bored with flicking rubber bands round the office and the result is that old Bert who fought in the war has to have gory images all over the bag his pipe tobacco is served in? Just leave people alone you hideous anti-social tossbags.
8 The Government is minded to derogate individually wrapped cigars and cigarillos from the full labelling regime, requiring only the general warning ‘Smoking Kills’ or ‘Smoking Kills – Quit Now’; one of the text warnings from the combined warning list but no picture; and a reference to the smoking cessation information. Do you agree with this approach?
The only chink of light in the whole consultation. Yes, of course they should be excluded, but then so should everything else, it's just a circle jerking exercise on the taxpayer teat. 

9 & 10 are about illicit trade and how to stop it. Both can be answered in the same manner, just change the words a bit.
10 We would welcome initial views on how track and trace and security markings may impact on business, and what the key issues for businesses will be.
Erm, why not ask the businesses who make the stuff and are harmed by an illicit trade entirely caused by the tobacco control industry? Oh yeah, you can't, so instead you're asking the people who caused the problem how to solve it. Masterful stuff. 

Then we get to cross border sales, including e-cigs.
11 If a registration scheme were introduced for cross-border distance sales, the Government is minded to require the nomination of an individual to be responsible for verifying that the product complies with the provisions in the UK regulations, before the product is supplied to the consumer. Do you agree with this approach?
No, because - and this may come as a surprise to you numbskulls - if I were running a very big company with lots of money I would welcome these proposals with open arms. This is, unless I've missed something, the Tobacco Products Directive, you know, designed to tackle tobacco. So why are you considering handing a huge competitive advantage to big tobacco companies while simultaneously adding an expensive regulatory burden to small independent e-cig companies. A cynic might think this isn't about health but more about providing work for expensive tax-sponging 'public health' makeworks, eh?
12 Should cross-border distance sales of tobacco products to consumers be prohibited?
No, wasn't the EU supposed to be about free trade within Europe? I'm sure I read that somewhere, or perhaps I was dreaming, I dunno. Still, if you do, I suppose white van man is going to be very happy to add a premium to his prices, I'm sure he'll thank you. 
13 Should cross-border distance sales of e-cigarettes and refills to consumers be prohibited?
No. What is it about free trade across the EU you people don't understand? It's the only good bit about the whole Leviathan of pan-European solidarity for Chrissakes!
14 What systems to verify the age of customers are available to, or currently used by, businesses involved in distance sales to other EU Member States?
Oh now you ask eh? It didn't bother you much when other EU countries had effective age ID controls on tobacco vending machines that you banned anyway. Back then you claimed Johnny Foreigner was obviously an idiot, so why ask about their prowess now? Sheesh.
15 Should novel tobacco products be subject to a notification scheme?
If you want to close down small companies, hand markets to large ones and push up prices, yes. Knock yourself out. It seems to be a recurring theme, doesn't it?
16 Under a notification scheme the Government is minded to include provision to require manufacturers or importers of novel tobacco products to provide, with any notification, information on:

 (a) the toxicity of the product, its ingredients and emissions;
 (b) the addictiveness of the product, its ingredients and emissions;
 (c) the expected effects of the product on the cessation of tobacco consumption by existing users of tobacco products; and
 (d) the perception of the product by consumers or potential consumers (or predictions as to how the product will be perceived), including the attractiveness of the product.

 The Government believes that this information should and will be available to manufacturers and importers prior to launching all new products. Do you agree with this approach?
Because the private sector only exists to provide information to wonks, civil servants and quangos. They have staff just sitting there waiting to provide you with pointless information, their business and customers obviously come second to satisfying the state. No, of course we don't agree with this approach. When someone is harmed or dies from using an e-cig as intended, you might have a case to demand this kind of overweening bollocks, till then fuck off.

This is the first of many questions which show how very damaging TPD2 will be. It's not enough that e-cigs are helping smokers to quit tobacco and clearly providing enjoyment to millions of people, the EU and, by extension, the UK government are insisting on imposing terms. You know why? Because mad intolerant anti-smoking obsessives who derive income from being a right royal pain in the ass don't like the idea that someone somewhere might be having a good time.

On Article 20 (object to this and support a court case against it here if you haven't already).
17 The Government is minded to use the TPD2 definitions of an ‘electronic cigarette’ and ‘refill container’. Do you foresee any problems with inconsistency with the definitions in The Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015?
Here's where the big faffing around begins. Article 20 is a pile of steaming horsecrap which has then been placed back in the nosebag for the horse to crap it out once again. It is written by idiots, so is therefore not fit for purpose and should be abandoned completely. Or, as Clive Bates describes it ...
"a catalogue of poorly designed, disproportionate and discriminatory measures that will achieve nothing useful but do a great deal of harm."
But instead of asking us about that, this consultation just impotently asks vapid questions about the peripheries of the legislation. If you ever wanted a sure sign that the UK is in hock to the EU up to its eyeballs - whether it's good for the health of the nation or not - this is it. 
18 The Government intends to handle notifications of e-cigarettes and refill containers electronically and make all information contained in notifications automatically available to the public unless this information can be considered truly commercially confidential. What information contained in the notifications should be considered commercially confidential?
People are quitting smoking using e-cigs and it has not cost the taxpayer a penny. What is not to like? Just butt out, all this proposal will do is hamper the progression tobacco controllers claim to want to see. 
19 The Government is minded to put the obligation on ‘producers’ (which includes manufacturers, importers into the UK and those that rename a product) in the transposing regulations which will ensure that there will always be a person in the UK who collects information about suspected adverse effects in relation to e-cigarettes and refill containers. Do you agree?
No. You need one person to log adverse effects in relation to e-cigs. He can sit in Whitehall and spend all day on Facebook if he likes, they are so few and far between. Why should government demand that consumers pay more for a beneficial product by obliging companies to employ someone on the back of the hysteria of state-funded blowhards who see their tax-sponging income stream drying up?
20 The Government is minded to give the Secretary of State for Health (SoS) the power to prohibit the supply of an e-cigarette or refill container or to require producers and suppliers to recall a product if he/she considers them a serious risk to public health. Do you think there are other options that should be provided to the SoS, for example the power to require modification of a product or to require enhanced monitoring and/or reporting of company data?
No. I can't think of anyone least qualified to decide policy on e-cigs than politicians and/or civil servants who have made such a monumental cock-up with this legislation. Remember this bit of utter incompetence from Anna Soubry? According to her e-cigs were dumped from the TPD2 two years ago!

Give the SoS power over e-cigs? He or she knows absolutely nothing about them or how they work. You may as well give a fox the keys to a hen coop. 
21 The TPD2 provides Member States with two options on the wording prescribed in the health warnings to appear on packs of e-cigarettes and refill containers. Member States must choose either a) ‘This product contains nicotine which is a highly addictive substance’; or b) ‘This product contains nicotine which is a highly addictive substance. It is not recommended for use by non-smokers’. The Government is minded to require that e-cigarettes be labelled with the warning ‘This product contains nicotine which is a highly addictive substance. It is not recommended for use by non-smokers’. Do you agree?
No. You've been telling smokers they are smelly, thoughtless, unattractive, and undesirable house sharers for years, now you want to deter them from switching to something else? Never been about health, has it?

I mean, why on Earth would you do that? Is your drive to meddle in an industry you don't understand really so strong that you're blind to the consequences? 
22 Should the Government charge the industry proportionate fees to recover costs associated with the TPD2, including the following activities:
No to all check boxes. It's your ridiculous and ill thought-through TPD, if you want to back it to the hilt, do it with taxpayer funds so you're accountable for the dreadful waste. Why should consumers pay for it through the prices that they pay for products they choose to consume? 
23 Should retailers and importers be given the proposed transition period until May 2017 to sell through old stock?
Of course, anything else should be regarded as theft by the government and courts should hold you to account. 
24 Do you have any comments on the drafting of the regulations, including anything you want to draw to our attention on the practicalities of implementing the regulations, as drafted?
Yes, Article 20 especially should be ripped up and forgotten about. If the EU won't do it, how about the UK government grows some balls and tells the EU to go away and think again? This government is constantly talking about renegotiating our terms with the EU and ditching rules that are detrimental to the UK, well here is a perfect example. 

Your own health body, PHE, published a report last week which goes against almost all of the terms the TPD2 imposes on e-cigs. Are you seriously going to go with the Brussels car crash instead of listening to a quango you pay half a bill per year to fund? 

And lastly the Impact Assessment. This will make you laugh.
25 (a)What is the likely cost of reassigning or retiring capital and adjusting manufacturing processes in response to the restrictions on certain product lines and requirements for additional health warnings?
Hmm, let me think. Considering no regulation in the history of state interference has ever been cost neutral or has reduced costs, I'd say costs will increase, don't you? I'm sure the economic heavyweights in the tobacco control industry will argue that black is white again though, as usual.
25 (b)What are the likely marginal impacts of implementing the TPD2 on e-cigarette manufacturers?
There will be no marginal effects whatsoever. There will be a lot of huge, stifling, game-changer destroying apocalyptic ones though.
25 (c)We are aware that tobacco products that benefit from transitional arrangements (menthol), or are exempt from the ban on characterising flavours, will no longer be able to provide a reference to the flavour on the packet. We would be interested to receive views on the impact of this provision.
It's quite hilarious that the TPD says menthol is not allowed to be communicated on packs anymore. So what does the UK do when plain packaging comes in? How are those who choose menthol cigarettes - which will be available until 2022 - supposed to work out which ones they are buying. More to the point, how are retailers supposed to identify which packs contain menthol? You really couldn't make this kind of incompetence up, could you?

There are two more on the IA but they can be answered easy enough by pointing out that government Impact assessments are usually garbage and this is no different. 

Anyway, if you feel like having a go, do click here and have your say. It's quite cathartic and why let state-paid miserablists set the agenda, eh? You have till September 3rd so get a wiggle on, I'd say. 

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