Consumption of e-cigarettes is on the rise with consumers
using them as they consider them a ‘healthier’ alternative to traditional
cigarettes or a way to cut down on smoking.(see a surveyconducted by Ernst and
Young) Therefore, regulating e-cigarettes and their relationship
with traditional tobacco products can be highly controversial.
Traditional
tobacco companies who have seen their sales fall argue that e-cigarettes are
not adequately regulated. In a recent interview, Commissioner for Health and
Safety Andriukaitis said that tobacco industry is feeling the pressure from EU
regulation and expressed concern that EU citizens seem to consider e-cigarettes
harmless.
The latest development in the field is the publication by
the European Commission of a Report on Directive 2011/64/EU (hereafter ‘the
Directive’). Directive 2011/64/EU is the main regulatory instrument for excise duties for
tobacco products. Tobacco products are broadly places in two categories: 1)
cigarettes and 2) other tobacco products.
The current report is part of the evaluation every 4 years
mandated by art.19 of Directive 2011/64/EU. The Commission considered a
revision of the Directive and decided against it and the newly published report
sets out the reasons for that. One of the topics considered for review was the
harmonisation of excise duties for e-cigarettes. It should be noted that
e-cigarettes are currently not covered by the Directive.
The Commission is taking a cautious approach and underlined
the need for further evidence to be made available before a decision to include
e-cigarettes in the scope of Directive 2011/64/EU can be made. E-cigarettes may
not fall under the Directive, but this does not mean they are not regulated on
an EU level, as they are regulated by Directive 2014/40/EU (the Tobacco Products
Directive), and according to the report the relationship between the Tobacco
Products Directive and Directive 2011/64/EU has not been made clear.
A similar
approach is taken in relation to heat-not-burn tobacco products, which are a
novel type of tobacco product, not yet available in all Member States. The
Commission argues there is not enough data to decide on potential harmonisation
of the tax regime.
Is this decision to be interpreted as the Commission going
easy on novel tobacco products, choosing not to regulate them so strictly? It
is still too soon to tell, as this story is far from over. The Directive will
undergo a REFIT evaluation in 2019, where the topic of regulating e-cigarettes
will be once again on the table. So it seems like the Commission does not want
to make big changes in light of the REFIT evaluation and would rather wait for
its outcome.
