Thursday, 25 January 2018

E-cigarettes not the same as cigarettes - Commission decides against harmonisation of duties for e-cigarettes

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.

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