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December 23rd, 2015:

E-cigarette restrictions ‘would not break EU law’, advocate general says

Manufacturers say EU rulings limiting advertising and strengths of electronic cigarettes, due next year, will damage industry

Rules on e-cigarette production, sales and marketing due to come into force across Europe next year are relatively moderate and would not break European law, a senior legal officer at the European court of justice has said.

The opinion of the advocate general, Juliane Kokott, is a severe blow to e-cigarette manufacturers who have claimed the new rules risk the future of the nicotine-based products, even though the NHS has said they are 95% less harmful than tobacco cigarettes.

The opinion does not mean the court will automatically dismiss the legal challenge headed by Blackburn-based Totally Wicked, and supported by other manufacturers, but most judgments later endorse the position of advocate generals. The ruling in this case is expected early next year.

Totally Wicked, which also operates in the US and Germany, has argued the limits on the size of bottles of e-liquids, restrictions on nicotine strengths and curbs on advertising and sponsorship, plus other measures, would damage an emerging industry and make it subject to more stringent regulation than some tobacco products.

Kokott’s opinion, summarised in a court press statement, is that the rules are relatively moderate compared with those for tobacco products. It emphasised that e-cigarettes are, for large parts of the population, “still relatively little known products for which there is a rapidly developing market”.

She said it is not unreasonable or wrong to accept that e-cigarettes possibly cause risks to human health and that they “could – above all in the case of adolescents and young adults – develop into a gateway to nicotine addiction and, ultimately, traditional tobacco consumption”.

Ian Gregory, a leader of the 100K group, representing several independent e-cigarette companies, claimed that if the court backed their legal officer, vapers would start playing “a game of ‘Brexit poker’” by threatening to vote to leave the EU in the forthcoming referendum unless there was a British opt-out on the issue.

“Britain’s vapers are determined to save the devices which they believe save their lives,” he said.

Dan Marchant, owner of the e-cigarette retailer Vape Club, which is part of the group, said there was little awareness of how the new rules would damage the industry. “Nearly every current device could become illegal.”

Fraser Cropper, Totally Wicked’s managing director, said: “This is not a formal decision, nor a legal judgment on the questions we raised in our challenge … It is not binding on the judges.”

Adviser to top EU court says EU cigarette law is valid

An adviser to Europe’s highest court in Luxembourg on Wednesday said an EU law on cigarettes was valid, rebuffing a challenge from Philip Morris International, although the court still has to deliver a final ruling. The opinion, if adopted by the court, would be a blow to Big Tobacco, which had lobbied vigorously against what was seen as some of the world’s strictest anti-tobacco legislation.

In a majority of cases, opinions of the court advisers are reflected in the final ruling, which should follow in the coming months. “(The advocate general) considers the EU tobacco directive of 2014 to be valid, in particular the extensive standardization of packaging, the future EU-wide prohibition on menthol cigarettes and special rules for e-cigarettes are lawful,” the opinion said.

Smoking remains the most significant cause of premature death in the European Union, responsible for nearly 700,000 deaths every year. The EU Tobacco Products Directive (TPD) was adopted in May 2014 and comes into force in 2016. It requires measures including a ban on menthol cigarettes by 2020 and pictorial and text health warnings across 65 percent of tobacco packages. It also preserves the right of member states to introduce packaging rules that are stricter, such as the “plain packaging” law the British government has passed that bans all colors and logos on cigarette boxes. The legal challenge by Marlboro cigarette maker Philip Morris was combined with one from Lucky Strike maker British American Tobacco. Neither company was immediately available to comment.


The European Court of Justice will rule today on whether Ireland can go ahead with plain packaging laws for cigarettes.

Tobacco giants Philip Morris and British American Tobacco took proceedings to the ECJ over an EU directive which would see health warnings on two thirds of tobacco packaging.

The Children’s Minister James Reilly wants to go one step further in Ireland and ban tobacco branding on packets altogether.

The ECJ will issue a preliminary ruling today.

Fatwa declares e-cig, vaping ‘haram’ for Muslims in Malaysia

Kuala Lumpur: Smoking e-cigarettes and vaping has been declared ‘haram’ for Muslims in Malaysia, the country’s national fatwa council has announced. The council after a special meeting decided to issue fatwa declaring e-cigarettes and vaping ‘haram’—forbidden for Muslims.

Islamic Sharia Council chairman Abdul Shukor Husin said that based on scientific studies, they have found that vaping does not benefit users.

“The council finds that the consumption of something that is harmful, whether direct or indirectly, purposely or not, could lead to harm or death; so this will not be allowed,” he told reporters here.

Shukor noted that vaping could be considered as something that was distasteful in Islam and could be harmful to the users.

“From the Shariah perspective, Muslims cannot consume something that is harmful to their health or indulge in things that are wasteful,” he said.

He said authorities had the power to ban the use of vape and electronic cigarettes if they had an impact on public health.

E-cigarettes, which provide a nicotine hit without the cancer-causing chemicals found in tobacco, are already banned for Muslims in four Malaysian states, as well as several other Muslim countries, including Kuwait and the UAE.

One in four e-cigs will be banned in Britain next year after being branded too strong in European Court ruling

  • Experts are concerned that e-cigs are gateway for teens to smoke tobacco
  • Under new EU directive e-cigs will have to carry a health warning on them
  • New rules, in May, could also see cigarettes only sold in packets of 20
  • Around 2.6 million adults in UK have used e-cigs in the past decade

A quarter of e-cigarettes are set to be banned in Britain next year after Europe’s highest court paved the way for tough new regulations.

Juliane Kokott, advocate general to the European Court of Justice, warned that e-cigarettes may act as a ‘gateway’ for teenagers to go on to smoke tobacco.

Dr Kokott, the EU’s most senior legal officer, said regulation is needed because of ‘possible risks to human health’.

Her intervention will have huge implications for the debate currently raging between health experts in Britain, some of whom insist that e-cigarettes will save thousands of lives, and others who are concerned that they have not yet been proven to be safe.

Dr Kokott said an industry challenge against the new rules – which are due to be introduced in May as part of a new EU directive – should be dismissed.

Judges at the court will have the final say when they deliver a ruling in March.

If they take Dr Kokott’s advice, and dismiss industry objections, vaping devices will no longer be allowed to contain more than 20 mg of nicotine per ml of liquid.

Analysis by London Economics, a policy consultancy, suggests that 25 per cent of the gadgets currently on sale use liquid stronger than this threshold.

The EU Tobacco Products Directive will also mean adverts have to be much more strictly regulated so that teenagers are not targeted.

E-cigarettes will have to carry health warnings telling people they contain a ‘highly addictive substance’.

And the size of refills and of the ‘tanks’ on the gadgets will also be limited for the first time.

Dr Kokott also said that a separate challenge from big tobacco firms over plain packaging for cigarette boxes should be dismissed, paving the way for rules to be brought in from May.

If that change goes through, cigarette packets will only be sold in boxes of 20, the packets will only allowed to be brown or green, and will carry a health warning covering 65 per cent of the box.

E-cigarettes contain a liquid form of nicotine that is heated into vapour to be inhaled, avoiding the harm caused by tobacco smoke.

Industry figures yesterday warned that the new rules will mean vapers are ‘outlawed’ and may go back to smoking if they cannot get the strongest e-cigarettes – but health charities say it is right that emerging industry is properly regulated.

Health experts agree that the devices are much safer than smoking tobacco – but some are concerned about unresolved safety concerns.

The World Health Organisation has warned that they may be toxic to bystanders, many rail companies have banned people from vaping on trains or in stations, and the Welsh Government is planning to prohibit the practice in restaurants, pubs and offices from 2017.

Yet Public Health England claimed in a report earlier this year that vaping was ‘95 per cent safe’ – a claim that was widely criticised when it emerged that it originated with scientists in the pay of the e-cigarette industry.

Dr Kokott said in a written ‘opinion’ presented to the court yesterday: ‘It is not manifestly wrong or unreasonable to accept 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.’

Around 2.6 million adults in Britain have used e-cigarettes in the decade or so that they have been on the market.

Public health experts are keen to promote the gadgets as a smoking-cessation tool.

But they are concerned that the devices are being advertised as a lifestyle accessory – in much the same way that tobacco was in the past.

Ian Gregory, who runs the 100K group of e-cigarette companies, threatened that vapers would feel ‘outlawed’ – and would vote to leave the EU in a bid to rid themselves of the regulation.

He said: ‘Britain’s vapers are determined to save the devices which they believe save their lives.

‘They will now start playing a game of Brexit Poker with the Commission – threatening to vote for Britain to leave the EU in the referendum unless the Commission insists on Britain having an opt-out.

‘There is little awareness yet among politicians as to just how damaging the EU Tobacco Products Directive could be for the e-cigarette industry.’

He claimed that the ban on stronger e-liquid would drive so many vapers back to smoking that it would cost 105,000 lives every year across Europe.

But Alison Cox, director of prevention at Cancer Research UK, said regulation is needed.

‘We believe e-cigarettes need light touch regulations which will help guarantee products are safe and effective, and prevent them being promoted to non-smokers and children,’ she said.

‘But the implementation of these regulations needs to be monitored to ensure that they don’t prevent smokers who want to use e-cigarettes from doing so. It’ s important that people who want to, are able to move away from tobacco cigarettes, which are responsible for one in four cancer deaths.’

Deborah Arnott, chief executive of health charity Action on Smoking and Health, added: ‘Growing numbers of governments around the world are banning the sale of electronic cigarettes.

‘The EU, by regulating them as consumer products, and allowing their sale and use, is recognising the value of these products as alternatives to smoking.’

Totally Wicked, the Blackburn-based e-cigarette company which headed the legal objection, last night played down the significance of the document.

Fraser Cropper, Totally Wicked’s managing director, said: ‘This is not a formal decision, nor a legal judgement on the questions we raised in our challenge.

‘It is a legal opinion prepared to assist the judges in making their decision and will be considered alongside the written and oral submissions. It is not binding.’

European court paves the way for plain cigarette packaging

Aliya Ram in London

The EU’s highest court has opened the path to the introduction of plain cigarette packaging laws across the continent, striking a significant blow against tobacco companies.

In an opinion delivered on Wednesday, Juliane Kokott, the European Court of Justice’s advocate general, dismissed a legal challenge from the tobacco industry against EU plans to increase health warnings, ban menthol cigarettes and regulate ecigarettes.

The industry hoped that a ruling in its favour would block attempts by the UK, France and Ireland to introduce so-called “plain packaging”, when branded cigarette packs are replaced with dark brown or green boxes without pictures or design features.

The advocate general’s opinion is not binding but is usually upheld by the ECJ. It will come as a further setback to tobacco companies, which are facing declining smoking rates and greater regulation across the developed world.

The French parliament last week voted to introduce plain packaging just a day before the Australian high court defeated a challenge from Philip Morris International against branding restrictions.
PMI, British American Tobacco, Japan Tobacco and Imperial Tobacco have also challenged the UK government’s plain packaging rules, which will come into effect from May 2017. A decision is expected in the new year.

“While we are still analysing the [advocate general’s] opinion, we are obviously disappointed with its conclusions,” BAT said. “We have always maintained that the Tobacco Products Directive represents an unlawful and disproportionate incursion into the autonomy of the [EU] member states.”

When it launched its challenge, PMI said the EU directive would “disrupt the balance . . . between the union and the member states” by allowing nations to introduce rules above those in the directive that says cigarette packs have to be 65 per cent covered with health warnings.

“Rather than respecting such basic principles as genuine harmonisation and free movement, the [TPD] inexplicably encourages a patchwork of regulations,” it added on Wednesday.

But Ms Kokott said individual countries can introduce full plain packaging. “Since the directive specifies only a basic design, it also still leaves scope for additional national packaging standards, for example in respect of the colouring of surfaces not reserved for warnings,” she said.

Deborah Arnott, chief executive of antismoking group Ash, says if the opinion is upheld by the ECJ it would strengthen antismoking advocates across the developed world.

“The advocate general’s opinion that standardised packaging of cigarettes is legal in Europe, one of the world’s big trading blocks, sets the scene for it to go global,” she said.

On Wednesday Ms Kokott also said separate challenges against the directive’s ban on menthol cigarettes and regulation of ecigarettes should be dismissed.

Pillbox, an ecigarette manufacturer, said the regulation of ecigarettes under tobacco legislation is disproportionate. Ms Kokott said ecigarette rules will be “moderate” compared with tobacco regulations.

She also said menthol cigarettes should be banned under the TPD, despite a challenge from Poland where flavoured products are popular. Ms Kokott said “none of the arguments invoked by Poland and supported by Romania . . . is well founded”.

Electronic cigarette ads ‘explicitly’ target kids, NYC Controller Scott Stringer says in letter to FTC


E-cig makers have adopted many of the same tactics long abandoned for regular cigarettes to entice children.

City Controller Scott Stringer is asking the Federal Trade Commission to investigate electronic cigarette marketing to kids.

E-cig makers have adopted many of the same tactics long abandoned for regular cigarettes to entice children — using cartoons in ads, promoting sweet flavors, and sponsoring concerts and sports events — Stringer said in testimony to the FTC.

“The same companies that peddled ‘Joe Camel’ and similar, kid-friendly images to an earlier generation are back with new ad strategies that appear to target e-cigarettes just as explicitly toward children and teens, with little or no regard for any potential health impacts,” he wrote.

E-cig companies are using cartoons in their ads, something tobacco companies had to do away with because they target kids.

E-cig companies are using cartoons in their ads, something tobacco companies had to do away with because they target kids.

It’s illegal in most of the country to sell e-cigarettes to kids under 18. In New York City, the age for both regular smokes and the electronic vapor devices is 21.

But e-cigarette use, also called “vaping,” has been spiking among high school students, and a study by an anti-smoking group this year found more than 80% of American youth are exposed to e-cigarette marketing.

Stringer said he’s worried city pension funds, which have investments in e-cigarette companies, could be at risk if the firms are hit with massive lawsuits like traditional tobacco companies have been.

The tobacco industry is on the hook for $200 billion from a 1998 settlement with state attorneys general over marketing to minors.

Since then, they’ve been banned from using cartoons in ads, using billboards and most other outdoor advertising, advertising on transit, giving out swag with company logos, sponsoring events with young audiences and other tactics attractive to kids.

The fruity flavors of e-cig cartridges are the focus of this ad, which could be attractive to kids.

The fruity flavors of e-cig cartridges are the focus of this ad, which could be attractive to kids.

“Instead of adopting these tools to the rise of e-cigarettes, the industry appears to have harkened back to an old playbook — one that explicitly and implicitly targets minors as a source of potential revenue,” Stringer wrote.

Little is known about the health effects of e-cigarettes, which many users pick up as a less dangerous alternative to smoking, but the nicotine they contain is widely considered harmful to adolescent brain development.

The FTC has proposed a broad study on e-cigarettes, and is soliciting testimony on what they should zero in on. Stringer urged the group to probe whether the e-cigarette campaigns are in strict compliance with federal truth in advertising laws.

“Our operating companies do not market any tobacco products to kids and that includes e-cigarettes,” said Jane Seccombe, spokeswoman for Reynolds America, the parent company for Vuse e-cigarettes.

Advocate General Kokott considers the new EU tobacco directive of 2014 to be valid

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