Published on:

The EU’s tobacco product directive hits vaping harder than smoking

My Times column on the EU’s idiotic attack on vaping:

When regulation goes wrong, people call for more regulation. Sometimes, though, regulation is the cause of the original problem. It is steadily becoming clear that the way the European Union does regulation is especially pernicious. It stifles innovation, often favours danger over safety, plays into the hands of vested interests and is inflexible and unaccountable. Volkswagen’s case is the tip of the iceberg.

In a shocking new case about dangerous emissions coming to court this week, the European Commission has passed regulations that are certain — not likely, certain — to hit the cleanest and lowest-emitting products much harder than their dirty competitors. I am not talking about diesel versus (cleaner) petrol engines, though I could be. Nor am I talking about pesticides versus (cleaner) genetically modified crops. Nor wood-burning versus (cleaner) fracking. I am talking about smoking versus (cleaner) vaping.

Egged on two years ago, I am sorry to say, by British ministers and some MEPs, the EU has agreed a tobacco products directive, which has to be implemented into law by next spring. Its Article 20 concerns the regulation of devices for vaping nicotine. And it hits them much harder than it hits cigarettes. On Thursday the vaping manufacturer Totally Wicked goes to the European Court of Justice to challenge Article 20. They have an excellent case.

For a start, it is bizarre to include vaping devices in a “tobacco products” directive at all. It’s like regulating coffee in a hard-drugs law. Remember the evidence is now overwhelmingly strong — and the British government has recently, but belatedly accepted this — that vaping is a really effective way to quit smoking and that, far from being a gateway into smoking, it is a highway out. By some estimates, approaching three million people now vape in this country, nearly all of whom are smoking less or no tobacco as a result.

Gobsmackingly, the directive specifically outlaws the very vaping devices that are most useful to heavy smokers trying to quit: the ones with more than 20 milligrams of nicotine per millilitre. Heavy smokers need high-strength nicotine vapour to quit smoking, so the people with the worst health are going to be denied help. And by insisting that refillable devices are leak free, the directive will effectively kill 90 per cent of the devices sold by independent firms and hand the market back to the struggling non-refillable “cig-alike” ones made mostly by the tobacco firms.

It gets worse. The directive outlaws most vaping advertisements, which will certainly slow vaping’s advance at the expense of smoking — ie, cost lives. It creates a six-month “standstill” period for new vaping products, following notification by the manufacture of an intention to sell a product. This will slow innovation and is asking for a black market to thrive: Chinese websites will be selling new devices into Europe while regulated manufacturers here twiddle their thumbs for 26 weeks.

But all of this pales into insignificance beside the truly shocking idiocy in the directive, which is this. From next spring a manufacturer of a vaping device will have to submit far more information about its emissions than a tobacco company will have to submit about emissions from smoking devices. Cigarette makers have to test for just three things: tar, carbon monoxide and nicotine. There are about 4,000 different chemicals in cigarette smoke, most of which are toxic at some level, but they don’t have to be tested or listed.

Under the new directive, e-cig makers are going to have to measure and list “all ingredients contained in, and emissions resulting from the use of, the product, by brand name and type” — including toxicological data — even though these emissions are far lower and far less toxic than tobacco smoke. Remember, the best evidence suggests that vaping is 20-100 times safer than smoking. But here we have regulation falling far more heavily on the safer product, just as it does with genetically modified crops and petrol engines, and making innovation all but impossible.

The result will be a slowdown in the take-up of vaping and therefore more premature deaths from smoking, just as the policy of favouring diesel over petrol has, we now know, probably killed many thousands of Europeans a year.

There is a way for vaping products to avoid these strangulating regulations, and that is for their makers to apply to have them regulated as medical devices. But that takes years to get approval and ensures that they are expensive, hard to get and ugly. No medicinal e-cig has been approved in five years. One of the advantages of vaping devices as quit aids is that they are attractive and can be bought from ordinary shops without prescriptions.

Now consider how hard it is to challenge Article 20 of the tobacco products directive, or indeed any Euro-regulation. Once passed in Brussels, it’s illegal for Britain not to implement it, and unpicking it would require 28 nations agreeing. It won’t happen. In a parallel case, the transport secretary, Patrick McLoughlin, in a letter to The Times on Saturday, detailed Britain’s futile efforts to get agreement on real-world tests for car emissions this year.

As the Volkswagen scandal has beautifully demonstrated, in the EU we are governed by unelected regulators who are immune to democratic recall, captive chums of the very industries they regulate and tools of the great pressure groups that infest the corridors of the Berlaymont. Greens obsessed with carbon dioxide combined with German carmakers obsessed with diesel to visit more noxious nitrogen oxides and particulates on us all.

These are not isolated cases: European regulation is not fit for purpose. Sir James Dyson last week said that he is taking the European Commission to court because its vacuum cleaner regulations have been influenced by a “strong German lobby [that] wanted to test virgin vacuum cleaners in a sterile laboratory without dust”, because their performance is relatively poor in the real, dusty world. He calls regulations “a form of control which stifles progress” and “an argument for greater independence for Britain”.

That is not an extreme conclusion. If you are one of the country’s three million vapers, or you know somebody who you would like to give up smoking, then you should probably vote to leave the EU in the referendum next year. I cannot see another way to unpick the lethal regulations in Article 20 and instead come up with sensible regulations that protect consumers while encouraging innovation and accelerate switching from tobacco.


By Matt Ridley | Tagged:  rational-optimist  the-times