On 20 May 2021, the European Commission published its Report on the application of the Tobacco Products Directive (TPD). The report examines the performance of the TPD and will inform future regulations of safer nicotine products and determine whether or not the current TPD should be revised. The report is mandated by Article 28 of the TPD which states: "No later than five years from 20 May 2016, and whenever necessary thereafter, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a report on the application of this Directive". See our article “What do we know about the TPD application report” for more details.
One of the aims of the TPD was to reduce tobacco consumption by 2% within 5 years of its transposition. This target has been surpassed: Special Eurobarometer 506 found that smoking rates among those 15 and over fell by 3% and youth smoking fell by an astonishing 9%. However, the Commission failed to recognise the dramatic fall in combustible tobacco consumption as a positive, and instead highlighted that youth use of e-cigarettes is growing. This dangerous and misguided focus on nicotine use, rather than combustible tobacco use, signals the direction the Commission intends to take.
Section 7 of the report deals with novel tobacco products and other emerging products – heated tobacco products and oral nicotine pouches. Concerns are raised that the current regulatory framework does not capture new products that don’t contain tobacco, such as nicotine pouches. They also suggested that flavours present a challenge as they are particularly appealing to young people – failing to mention that flavours play a pivotal role for adults to quit smoking and remain smoke free, which is supported by Eurobarometer data. The section concludes that: “The EU regulatory framework does not currently address all novel tobacco and emerging products, nor provide flexibility to address rapid product developments. HTPs should be monitored closely as they pose specific regulatory challenges, including health warnings, use of flavours and interaction with devices.” In other words, expect the Commission to want regulations strengthened in this area.
Section 8 relates to e-cigarettes and refill containers and relies heavily on the deeply flawed SCHEER report – for more analysis of the SCHEER report see our article ETHRA's view on the SCHEER Opinion. It is claimed that flavours such as fruits and candy strongly influence youth initiation and can act as a gateway to smoking. Once again, the fact that the majority of adults use fruit and sweet flavours is ignored. Risk management decisions will also be based on the SCHEER report, which is especially concerning as the SCHEER was asked to focus only on health impacts compared to non-smoking. The conclusion on e-cigarettes and refills states that the Commission intends to pursue a precautionary approach, with the possibility of restrictions on flavours, open systems (see footnote 54), and bringing non-nicotine e-liquids (shortfills) under the remit of the TPD. They also add that: “Insofar as e-cigarettes are smoking cessation aids, their regulation should follow the pharmaceutical legislation.”
The prospect of the Commission tightening regulations on safer nicotine products by misusing the precautionary principle is a cause for serious concern and threatens to reverse the gains made in reducing smoking prevalence over the last number of years. Safer nicotine products work because they are consumer products that appeal to adults. They have displaced smoking at historic rates in countries that have a progressive attitude to tobacco harm reduction. The focus of the Commission should be on the realistic goal of further reductions in smoking, not the idealistic and unrealistic goal of reducing the use of non-combustible low-risk alternatives to smoking.
Link to download the report on the application of the TPD:
Link to download Special Eurobarometer 506: