When we’ve decided, we’ll let you know: an update on nicotine negotiations in Brussels

Updated 17 Dec… A secretive, opaque, poorly informed, arbitrary, rushed policy-making process is heading towards an unsatisfactory and damaging conclusion […]

We we've decided, we'll let you know
EU to citizens: “we’ll call you”

Updated 17 Dec… A secretive, opaque, poorly informed, arbitrary, rushed policy-making process is heading towards an unsatisfactory and damaging conclusion – this is an update.  I have seen nothing to justify changing my view that a proper job is required for regulating e-cigarettes, and that we should have a new legislative proposal with evidence-based justification; a credible impact assessment; the basic courtesy of consultation with users, businesses and public health experts; and proper scrutiny by national parliaments, who are formally part of the process.  The Article 18 text under discussion is entirely new, unrecognisable from the Commission proposal and five times its length.  Yet it has been subject to none of the disciplines required of a new proposal.


State of negotiations. The most recent leaked negotiating text I have seen is available here. But there has been significant discussion on Friday 13th on the Council side and a technical meeting of the trilogue.  The process is opaque and insular and the documentation is secret. We rely on leaks and unofficial briefings to find out what is going on – so this assessment has to be taken in that light.  There remain several ares that are still controversial, some that aren’t controversial but should be, and some things that should be included but are not.  The main points of interest surrounds the following:

  • Maximum e-liquid nicotine density (in mg/ml) – this seems to be converging on 20mg/ml but many in Council want this lower.  Parliament starting position is 30mg/ml. It should be >50mg/ml if it is specified at all. High nicotine densities may be needed for more effective nicotine delivery, more compact devices and use in innovations we don’t know of yet.
  • Maximum nicotine content per unit – now unclear – this has previously been very low at 10mg nicotine, but some recent suggestion that this might change to 10ml of liquid (which means much more mg nicotine). In fact, the focus should be on packaging not the volume of liquid or quantity of nicotine (imagine if we tried to regulate bleach that way?). The whole area is of nicotine limits is bedevilled by confusion over aims (addictiveness? toxicity?) and science – recent data shows it to be much less toxic than previously though (based on 19th Century studies – see article + blog).
  • Flavours – the emerging flavour of choice is ‘fudge’ – with possibility of a review or leaving it to member states to decide. This is a harmonising internal market directive – no restrictions should be applied unless and until there is evidence that a certain flavour causes harm. For some reason, the negotiators think ‘children’ (actually adolescents would be a better term) want to use childish flavours, like bubble gum.
  • Refillable devices – seems to be some movement towards not banning these 2nd and 3rd generation devices and instead specifying standards for refill containers. No case for limiting refillables – the safety of containers is more important.
  • ‘Consistent dosing’ – some movement here as it was previously ‘uniformly and consistently’ – borrowed from the medicines mindset, but potentially immensely difficult and limiting design constraint.
  • Testing and notification – requirements for many tests of toxicity in liquid, vapour etc – this should be done, but subject to proportionality and with a clear understanding of what the test data is to be used for
  • Nicotine delivery and dosing – purpose unclear – consumers decide which products they like or find satisfying.  But this will require a testing regime (not stated in the directive) and some idea of what will be done with the results.
  • Age restrictions – was included by the Parliament, but no longer included as this is not a matter for the EU, but for member states legislation
  • Advertising restrictions (on certain types of cross border advertising, TV and radio). Appears to be agreement on this, even though no basis whatsoever for a ban – a similar approach to alcohol advertising could be taken. Note member states responsible for regulating most advertising, not EU and UK regulators are considering advertising rules rather than a ban.
  • Purity requirement – requirement that ingredients that ‘high purity and free from contaminants are used in the manufacture of the liquid’. Everything has some contamination in it – in reality a standard setting regime is necessary and should be established in the directive.
  • Tobacco branding / brand stretching – a ban on the use of tobacco branding on e-cigs was part of the Parliament’s proposal but that is covered by other directives and not harmonised in this directive
  • Warning, labelling and information leaflets – proposals are disproportionate given the risks and by comparison with smoking.
  • Medicines regulation – a number of members states have been trying to retain the right to regulate the products as medicines at national level. This is a ridiculous thing to do in a harmonising internal market directive – and seems to fail every time it is tested in member state courts.
In summary – it’s a messy half-baked muddle, but this text is not as bad as it was. (update 16 Dec: even this text isn’t actually agreed, with the Council still insisting that refillables should be banned and a ridiculously low maximum unit quantity of nicotine set).  Furthermore, this text is very far from the public health or consumer optimum.  That would involve finding a balance between managing the minor and implausible risks that the public health community have fetishised and enabling the products to compete effectively with cigarettes, which is where the huge public health dividend will actually be achieved.  Remember for snus in Sweden, amazingly positive health results were obtained with minimal regulation. Of course, the people negotiating this negligently want snus to remain banned, so we can discard the idea that doing the right thing for health is their primary concern. We should also bear in mind that the underlying principle of this legislation is ‘free movement of goods’ – and they should present evidence if they want to depart from that to secure a high level of health protection.  With snus, their absurd ban was negative for health.
Updated 17 December. After hours of negotiation last night, it looks like a provisional agreement has been made on some of the more contentious issues among the negotiators:
  • Nicotine density limit settled at 20mg/ml
  • E-liquid refill containers no bigger than 10ml
  • Single use cartridges limited to 2ml (updated)
  • Refillable devices to have mechanism that prevents leakage – technical specs to be defined by Commission
  • No ban on refillable devices, but…
    • A study of potential risks to public health be undertaken and complete in 24 months
    • Means to take individual brands/products off the market if serious risk to human health
    • If three members states instigate a ban then Commission is empowered to ban across the EU provided principle of proportionality is respected. Note: not a requirement to ban.
This will be subject to agreement at another meeting of Council officials (COREPER) on Wednesday night.
As you probably know, I think there is something tiresome and absurd about civil servants and politicians sitting in a late night negotiation trying to design e-cigarettes based on their scant knowledge and folk wisdom.
Overall: not a total disaster, just a lot of expensive wasteful evidence-free tinkering that will remove useful products, harm users and businesses, limit effectiveness relative to cigarettes, and block off innovation.
End of update
Where next? On Monday 16th December starting at 18.30 in Brussels, there will be the fifth ‘trilogue’ negotiation between representatives of the European Parliament and Presidency of the European Council – this meeting is aiming to secure agreement on a text for the revised Tobacco Products Directive, and in practice that means agreeing the text for Article 18 on e-cigarettes.  Each side in the negotiations then has to take it back to their institution (Parliament plenary and full European Council) and win support. If both agree with the text, it becomes law. But that agreement won’t be reached until the Parliament has voted on it at its official ‘first reading’.
Process continues into 2014. The Parliament has not yet completed its first reading – the vote and plenary on 8 October kept it open referring it back to the rapporteur and ENVI committee to pursue negotiation with the Council. If trilogue agreement is reached, it then goes back to the European Parliament plenary sometime in early 2014.  The Parliament will vote on a single amendment which captures all elements of the trilogue agreement and then passes a “legislative resolution”. If passed, this would complete the Parliament’s first reading. Once that’s done, the Council can formally adopt the directive (using exactly the same text as EP legislative resolution – that was have pre-agreed with the Presidency in the trilogue). If all that happens, the deal is done and the text becomes law.  This process could be completed in the first few months of next year – but the key political agreement may be struck in the trilogue on 16th December. At least that’s what most involved seem to want.  That doesn’t mean it will pass though: the European Parliament plenary has already rebelled once, and agreement in the Council can never be taken for granted – given domestic politics.  See this interactive guide to the Ordinary Legislative Procedure or more straightforwardly set out in PDF form).
We should note that national parliaments can and should have a say on this… see next post.
Download Post as PDF

18 thoughts on “When we’ve decided, we’ll let you know: an update on nicotine negotiations in Brussels”

  1. Pingback: Lorsque nous avons décidé, nous v...

  2. Pingback: "When We've Decided, We’ll Let You K...

  3. If anyone working in business tried to propose a project in this manner, they would find their career severely limited.

  4. What seems to me to be of some concern is the effect of these proposed regulations upon competition. If the ‘level playing field’ is pursued too far, then competition becomes more and more limited. Certainly, the original intention to treat ecigs as medicines would have destroyed any possibility of competition to speak of. I fail to understand why it was that this consideration hardly seems to have arisen during the discussions which I watched during the meeting chaired by Linda McAvan.
    I would have thought that, to maximise competition, regulation ought to be minimal. Thus, the strength of nicotine in ecig liquid should be specified depending only upon what is not a dangerous level to inhale; similarly, flavours should not be limited to one or two ‘approved’ flavours, but rather limited only by what consumers like best (meaning, no regulation – let the market decide).
    [By the way, can someone enlighten me of the reason that adults should not be able to choose menthol cigarettes or buy packets of ten? Or are these simply vindictive attacks upon those of us who choose to enjoy tobacco?]
    When you think about ecigs in this sort of manner, your case of extracting ecigs from the Tobacco Directive becomes stronger and stronger. Certainly, attention might then be given to the illiberal clauses which I have mentioned above.

  5. It all started when Big Pharma achieved to include nicotine in the CODEX ALIMENTARIUS (approx. 1980). This is the reason for all our problems. Pharma studies showing 40% success rate of NRTs were flawed. Even the German DKFZ states now that the effect of “nicotine replacement therapie” is not better as placebo.

    If nicotine can be freed out of the CODEX ALIMENTARIUS then NRTs are outside pharmacies. And the e-cig will never ever become a medical product.

  6. I have been thinking along the same lines as Phoenix.
    It looks as if the EU Healthists are trying to subtly move the Tobacco Directive from tobacco to nicotine.
    So we are going back to the 1940s and 1950s when American comics were forever exhorting children readers to have nothing to do with Nic O’Tine. Nic O’Tine was portrayed with a hook nose, narrow eyes and a shuffling gait. Now then …. where have we seen that before?
    Only sensible members of the EU parliament can stop this mission creep, but even they are powerless before the magnificent edifice of aristocratic control which has been built up layer by layer.
    Our Government, if it had the courage, could bring the mission creep to an end AT A STROKE. We must always remember that the EU is just a Treaty. Our Government could say, at any time, “We will not do that!” That is what Thatcher did.

  7. Pingback: When we’ve decided, we’ll let you k...

  8. Thanks for your competent support!

    Well, it ain’t over ’til the fat lady sings.
    Politicians: Sow farts and reap a true european shit storm.

    We’re constantly getting more and we’re getting louder and WE know what we are talking about.

    United Vapers of Europe! WE are the true Europe!
    Vapoteurs européens unis! NOUS sommes le vrai Europe!
    Vereinigte Dampfer von Europa! WIR sind das wahre Europa!

  9. Jonathan Bagley

    By specifying a maximum of 10ml of liquid and allowing refillables, they are effectively allowing the sale of bottles of eliquid but only 10ml bottles, not 20ml, for example. This will do nothing except create more litter and use up more plastic. They seem all at sea – getting more confused by the day.

  10. I saw this phrase earlier today……(French) http://www.aiduce.fr/4e-trilogue-ce-soir-conseils-de-laiduce-aux-participants/

    liberticide [lɪˈbɜːtɪˌsaɪd]
    1. (Government, Politics & Diplomacy) a destroyer of freedom
    2. (Government, Politics & Diplomacy) the destruction of freedom
    liberticidal adj

    One to remember!
    Clive, I saw no mention of the gagging proposals in your piece, unless this came under the advertising proposals, isn’t freedom of speech also an issue here? (under that proposal we, and you, have no voice)

  11. If accepted by the elected representatives of the people this could become law; but then it has to be accepted by the people as well since they do not want to have a tsunami of civil disobedience on their hands.

    If a law is unjust, a man is not only right to disobey, he is obligated to do so. (Thomas Jefferson)

  12. Pingback: When we’ve decided, we’ll let you k...

  13. “And then there is always the internet!”

    MEP advises how to get round EU directives – sums it all up really!

  14. Well I think that it has gone way past the point of being able to police eliquid. Online alone will be almost impossible to keep track of how many mg a bottle contains.

Leave a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Scroll to Top