*** UPDATE 23 JULY 2020 ***
Comments are no longer being accepted via the website. However, comments can still be emailed.
The Commission and some member states have left detailed opinions and/or comments. These are not made public (see TRIS FAQ's).
*** UPDATE 16 July 2020 ***
Please leave a comment on the Denmark TRIS notification, here. Individuals and organisations can comment. After submitting your contribution please look out for the email where you will need to click a link to validate it.
It looks as though the deadline has been extended, as a result of several member states providing detailed opinions (see here for more on TRIS procedure). Those member state opinions are not made public.
DADAFO’s comment translated into English is now published on our website here. Please read this comment for our Danish colleagues' expert consumer view on the legislation, which includes a flavour ban and plain packaging for vaping products.
WHY you need to respond to the Danish notification and HOW to go about it. Thank you to Danish Vapers Association (DADAFO) for writing this.
Denmark is set to introduce a flavour ban on both nicotine and non-nicotine containing e-liquids, where only tobacco and menthol flavours will be permitted. This will affect 85-90% of Danish vapers, who will be forced to vape only tobacco or menthol flavoured e-liquids, or go back to smoking, or take the risk and buy unregulated black market products, or DIY to get the flavours they prefer, to have success with remaining smoke free.
The proposed legislation, will turn many people (vapers and smokers) into criminals - people whose only crime is to try and stay smoke free, by switching to a low risk alternative such as vaping or snus. These proposed amendments will also force appx. 90% of the Danish vape shops to close, since there will be no legal market for a wide variety of e-liquids with different flavours. However, there will still be a market, albeit underground, and away from the authorities.
The Danish Ministry of Health sent a notification of this to the European Commission on the 17th of April 2020 - with a standstill period of three months. In this period, the Commission has to comment whether or not they think that the Danish government has a case and can legally amend the existing laws to include a total flavor ban on all tobacco and non-tobacco nicotine, and non-nicotine containing products, used as substitutes for smoking (except of course, medicinal nicotine replacement therapy products). So in fact, all products that are used as substitutes for smoking, will have the flavour ban imposed.
The notification also includes other proposals which will prevent smokers from being aware that safer nicotine products exist.
Banning flavours in Denmark would set a precedent for other member states to ban flavors and could even lead to a flavour ban in the next TPD.
The Danish government “forgot” to notify the European Commission prior to the negotiations regarding the proposed flavour ban, and now they have promised the majority of the political parties that have reached an agreement through negotiation that a flavour ban can go into effect, without any problems. This oversight is what the Danish government is trying to cover up at the moment. There is no transparency in the way they are handling the proposed ban, and they are trying to push the legislation amidst a COVID-19 crisis, where the media and the European Commission has their focus elsewhere.
The Tobacco Products Directive (TPD) covers the regulation of e-cigarettes. The TPD requires individual countries to notify the EU Commission if they wish to take further measures in “protecting public health” by further regulating products covered by the TPD (“gold plating”). As flavours are permitted under the TPD, Denmark has had to notify the Commission of their proposal to ban them. With a majority of the principal Danish political parties in favour, it is expected that the ban will be waved through, unless the EU Commission stops it first.
The EU Commission has three months to stop the legislation, if sufficient evidence on public health impact is not provided. But the notification has been buried under “the COVID-19 crisis” and it is not likely, that the Commission will find the time to read or reply to all the stakeholder contributions.
The Danish plans will see all flavors banned, including accessories that could provide flavour to e-cigarettes. The proposals also include plain packaging for all tobacco products, non-tobacco nicotine containing products and vaping products, restrictions on nicotine pouches, no visibility of products at point of sale - including on the internet - and a complete advertising ban.
MAIN CONTENTS OF THE PROPOSED LAW
- Display ban : Tobacco products, tobacco substitutes and electronic cigarettes are not to be visible to consumers at points of sale, including on the Internet, until a customer specifically requests them. This does not however apply to: Physical shops that specialise in the sale of cigars, pipes and pipe tobaccorespectively, and the sale of electronic cigarettes
- Stricter ban on advertising and sponsorship: All forms of direct and indirect advertising and sponsorship are banned and, as an additional element, tobacco substitutes and herbal products for smoking are also covered by the ban.
- Plain Standardised packaging: All tobacco products, herbal products for smoking and electronic cigarettes must have a uniform appearance. This does not however apply to cigars, pipe tobacco and pipes. The standardisation means, among other things, that the manufacturer and product name must appear in a standardised way, that logos must not stand out and that the colour etc. of the packaging must be standardised. Standardisation can limit the advertising effect of the packaging.
- Smoke-free school time: To avoid school pupils being confronted with smoking etc. during school hours, it is proposed that school time should be smoke-free in all primary schools, boarding schools, continuation schools and upper secondary education facilities.
- Smoke-free properties: Upper secondary education facilities including children and young people under 18 years of age and not covered by the current requirements for smoke-free properties are proposed to be included.
- Ban on the sale of tobacco, tobacco substitutes, herbal products for smoking and electronic cigarettes and refill containers with and without nicotine in primary schools, boarding schools, continuation schools and upper secondary education facilities.
- Ban on flavourings in tobacco products and electronic cigarettes: The sale of electronic cigarettes including refill containers with or without nicotine,. with characteristic flavours other than the taste of tobacco and menthol is banned. The same is proposed for those tobacco products that are not already covered by the ban on characteristic flavours, although not for pipe tobacco and cigars or herbal products for smoking.
- Regulation of tobacco substitutes (non-tobacco nicotine products): Not previously regulated in Danish law, but proposed to be covered by the same regulation as tobacco products with respect to for example, advertising regulations, age limits, etc. Requirements are also proposed on health warnings on the packaging in line with the current regulations for electronic cigarettes. This applies for instance to tobacco-free snus, and other products that do not contain tobacco.
- Age control system and stricter penalty levels: Requirements are laid down for all retailers marketing over the Internet to ensure a system that effectively verifies the age of the purchaser, and the penalty of breaching the age limit is proposed to be made stricter.
- Registration scheme for retailers of electronic cigarettes and refill containers with and without nicotine, registration scheme for tobacco substitutes and refill containers without nicotine.
- Stricter penalties for breaches of the Act on smoke-free environments.
- Easier access for municipalities to provide free smoking cessation medication - this program does NOT include free e-cigarettes for smoking cessation, since e-cigarettes are NOT considered a viable tool for smoking cessation.
The impact assessment report (see here for an unofficial English translation) focuses exclusively on children and youth and does not mention unintended consequences for adult smokers or vapers even once. “Think of the children” is a phrase that can be read between every line in the proposal for the law amendments. But - the politicians should also “think of the children's parents” so they can keep on being smoke-free, live longer, and be around to see their grandchildren as well.
The TPD is currently being reviewed, with a report due in May 2021. The stakeholder hearings are on their way soon, but it is unknown why Denmark has chosen to rush these restrictions through now, for legislation in the midst of a global pandemic, instead of feeding their wishes into the TPD review.
Why is Denmark in such a hurry to restrict adults access to safer nicotine products, without regard to the negative consequences for adult smokers and vapers? The government and the Ministry for Health have been told that “tobacco harm reduction” is not a part of the solution, but in fact THR is seen as a problem in regards to lowering the tobacco smoking prevalence in Denmark. The Ministry of Health believes in the dogma “Quit or die” for longterm smokers who wish to quit smoking. The only recommended way to quit smoking is through consultations with a cessation “expert”, combined with NRT or prescription drugs such as Champix (Varenicline) or Zyban (Bupropione).
The flavour ban is a part of a larger “Action Plan against Tobacco”, which includes plain packaging on all tobacco related products, a total display ban and severe fines if you sell tobacco or tobacco related products to persons under the age of 18. And on top of this, the Danish government has reached a consensus that all tobacco related products should be so expensive (price and excess tax to be levied) that youth can not afford to buy these products. But the Danish government could not gain support for the higher prices/taxes, so in order to look determined and energetic, they have “thrown” vaping under the bus, and included even more draconian legislation on a product that could be part of the solution for the so called “smoking epidemic”.
WHY DOES THIS MATTER TO YOU?
If the Danish government gets away with banning flavours in Denmark it will encourage flavour bans elsewhere and could affect how the upcoming TPD3 regulates flavours. Prohibition has already crept in, with flavour bans in Estonia, Finland and Hungary. These bans could ultimately affect every European country, and bring the general public health in jeopardy. Black markets, which have been mostly avoided in Europe, will very likely find a place in the market, and that is not good news for consumer safety. Need we remind what happened in the US, regarding EVALI? A national outbreak of a mysterious lung disease, occured in the US, and no one could explain why there were so many young people getting sick and dying in certain states in the US. The Center for Disease Control, CDC, took months to come to the conclusion that the products that were vaped were illicit cartridges with THC which had been cut with vitamin E acetate, to make the liquid maintain thickness despite dilution - so it would appear to be of “high quality”. Vapers almost immediately realised that the lung disease could not possibly have been caused by regular nicotine containing e-liquids: If that were the case, many more would have suffered from this disease, and have died before the outbreak in the US in 2019.
The same disaster could happen in Denmark, and subsequently in the rest of Europe, if flavours in the e-liquids are banned. Many of the current vapers, and the smokers who might want to switch to vaping will find themselves in a market where the flavours they desire are taken away. So - what to do? Do we buy the flavours from other outlets? Not knowing whether the flavours are OK to inhale, and not made with lipids/oils, glucose, diacetyl etc? Or do we find a “good neighbour”, who can still supply us with the flavours we want? The Danish government has said that they don’t anticipate that cross border sales will be an issue - since few teens have the time or money to make the trip to either Germany or Sweden. The Danish government probably hasn't noticed that it is very easy to get hold of anything, using social media, to obtain any kind of substance - as a pick-up within a short distance - so there is in fact no need to travel a long distance, to get what you desire.
PLEASE RESPOND TO THE NOTIFICATION
Please respond with your private or your organisation's contribution to the notification:
The main points for the notification are in English but the main documents are in Danish.
SUBMITTING A CONTRIBUTION
Link for submitting your contribution: https://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year=2020&num=228
Link to an English translation of the notification:
You can either upload your contribution as a document or type directly into the webform.
***** The notification itself is in Danish but your submission can be in any of the official languages of the EU ****
Responses will be accepted until 20th of July 2020 (the end of the standstill period) but they prefer responses to be sent in at least one month before that.
WHAT DOES DADAFO, THE DANISH VAPERS ASSOCIATION, SAY?
We need your help. We hope that all the European tobacco harm reduction associations will back us on this – sending in comments from each of the organizations.
DADAFO warned in December (link to English translation) that a flavour ban could drive up to 70,000 Danish ex-smokers back to cigarettes and/or severely harm the general public health. At best (if the nonsense about teen vaping being due to flavors is assumed to be true) this ban will prevent 1,200 Danish teens from starting to vape each year. The official numbers for teen vaping have been declining since 2014, fewer and fewer teens are vaping, furthermore teen e-cigarette use is primarily amongst current or previous smokers. At the same time, smoking prevalence for youth is going up. There is indeed a problem, but the problem is NOT vaping or flavours. The problem is still tobacco cigarette smoking among youth.
DADAFO 's primary focus is on the ban on flavours in e-liquids other than tobacco flavours and menthol flavours - as well as a proposal that e-liquids should be charged an excise tax of DKK 2.00 per ml. There are no specific proposals on how the tax should be levied - is it a tax on the amount of liquid or on the content of nicotine per ml of liquid? Would a liquid with 3 mg. per. ml. be charged with the same amount as a liquid of 18 mg. per. ml.? What about liquids without any nicotine? A 10 ml bottle of non-flavoured e-liquid cost appx. DKK 30,00 - and after the excise tax is imposed, the same bottle will be DKK 50.00 - a price hike of nearly 70%! This means that vaping is probably going to be more expensive than smoking.
The Danish law amendments was put to a public hearing in January/February 2020 - and DADAFO sent in the response of the Danish vapers - Read the English translation here.
We implore you to read our response to the public hearing - it describes many of the issues that other countries in Europe might soon face.
If the Commission lets this pass it will set a dangerous precedent for banning flavours in other European countries and could ultimately affect every European country in the future.
We need your help, reach out to your organisations and ask them to write a contribution on why a flavor ban is counter-productive to public health. Focus on the fact that a comprehensive risk assessment has not been done, and that the adult vapers have been completely ignored and forgotten (250,000-300,000 Danes). This legislation WILL create new smokers.
Notification detail - link
Stakeholders Contributions page - link
Impact assessment report, DADAFO's translation (English) - link
DADAFO's hearing statement, translated into English - link
DADAFO's possible points to include - link
DADAFO's E-cigarette and vaper consumer survey - link
DADAFO's short contribution, English translation - link