Thursday 24 December 2015

European Court Rules On Non-Existent Purpose

Before you all switch off for Christmas, it's worth highlighting one salient point from yesterday's European Court opinion rejecting Totally Wicked's challenge to article 20 of the TPD relating to e-cigs.

You see, it's clear since e-cigs were first included in the process that civil servants and politicians didn't have the first clue about the products they were seeking to regulate. The most obvious marker of this is their approach to liquid. For example, benign though the regulations regarding "leak free refilling mechanisms" are, it is impossible to conclude anything else but that the EU believed they were regulating pure nicotine rather than the massively diluted liquid that vapers use. To set a regulation to avoid accidental spillage - and therefore 'dangerous' contact with the skin - is quite laughable considering the same document also limits nicotine content to a tiny 2% in 10ml bottles; a level so weak that it could be drunk by an able-bodied adult without any ill effects at all. The idea that a fraction of that 10ml being spilled could cause harm if coming into contact with skin is up there with some of the wackiest conspiracy theories of all time.

But it also appears that the European Court hasn't got much of a clue about what it was supposed to be making a judgement on either! The opinion can be read here, but hinges on two main points. Firstly, that the rules are "moderate" and not disproportionate, which fails to recognise why e-cigs are successful at attracting smokers to switch; banning advertising and nicotine content above 2% can only have the effect of driving smokers away from the products rather than towards them, and so are quite definitely disproportionate.

More importantly, though, the second main finding doesn't even address the purpose of the TPD at all! Here's the relevant text.
In addition, it is not manifestly wrong or unreasonable to accept, in adopting internal market harmonisation measures, that e-cigarettes possibly cause risks to human health and that that product could — above all in the case of adolescents and young adults — develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption.
This would all be well and good if one of the purposes of Article 20 had been to counteract the fallacious gateway theory. But nothing in it would address that at all. It's quite simply not relevant and should not have even been considered as such by the Advocate General.

Reducing nicotine content; limiting bottle size; restricting advertising; notifications of ingredients in liquid and prohibiting tanks larger than 2ml have nothing whatsoever to do with the gateway conspiracy theory. None of the measures will have any effect on the mythical "gateway to nicotine addiction" even if it was happening ... which all the available evidence so far proves is not.

In fact, if anyone were to be worried about the gateway theory and the renormalisation of cigarette use, they would be going the other way and advocating for Article 20 to be ditched because it makes the gateway more likely, not less.

There is nothing in the terms of it which will worry cigalike manufacturers at all. All cigalike products are already well within the parameters of the legislation as it stands and relatively cheap to buy. Whereas products which look absolutely nothing like a cigarette - and are far more expensive for a child to buy and initiate use - are being hampered by the regulations.

In other words, these - which closely resemble cigarettes - are deemed perfectly fine by Article 20.

Whereas, for example, my own set up - which no-one could ever mistake for a cigarette and which costs three figures to purchase - contravenes the regulations on tank size and probably consistent dosing (no one knows what that means yet), and every liquid I use will be subject to the rigorous reporting regime.

So, if the terms of the TPD would not impact child uptake of e-cig use one iota, why was the Advocate General even taking it into consideration? Your guess is as good as mine, I'm afraid.

But it might be worth mentioning if you plan to write to your MP over the Christmas break, which I do hope you will.

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