European heated tobacco users about to lose taste with latest flavour prohibition

A flavour ban for heated tobacco products has been confirmed following the EU Commission’s publishing of a delegated directive amending the Tobacco Products Directive 2014/40/EU, commonly known as the Tobacco Products Directive (TPD).

Heated tobacco and other products had been exempt from a prohibition on the marketing of tobacco products with a characterising flavour that was established by the TPD in 2014, as it had initially been intended only for combustible cigarettes and roll-your-own tobacco.

The proposal that has been introduced will include heated tobacco under this ban, meaning any heated tobacco product with a characterising flavour will not be permitted to be sold in European member states in the coming months.

It must be noted that this amendment is intended for heated tobacco products only and that other tobacco products as well as e-cigarettes will remain exempt from the flavour prohibition.


Sales volume triggers law change


The justification for the ban is based on the heated tobacco products market having developed sufficiently in the EU to now play an impactful role. The 2014 TPD was designed to adapt to changing circumstances. It included a provision whereby tobacco products other than cigarettes and roll-your-own tobacco would no longer be exempt from certain requirements relating to ingredients (such as flavours).

This would be triggered if the sales volume by product category increased by 10% in at least five member states and the sales volume of the entire product category at the EU level exceeded 2.5% of total tobacco product sales.

Evidence of this change was published in a report on 15th June, with the delegated directive being published on 29th June. The report includes the sales volumes of heated tobacco products of each EU country per year, from 2018 to 2020, and analyses the increases that took place over this period.

The EU Commission had previously told TobaccoIntelligence that it was expected to finalise the amendment process soon after having provided a draft of the amendment in another Experts Meeting in May of this year.

The Directorate-General for Health and Food Safety (DG-Santé) originally announced plans to apply a flavour ban to heated tobacco products in December 2021 when it said during a meeting of the EU Commission Expert Group on Tobacco Policy that it had determined the category had undergone a substantial change of circumstances as defined by the TPD.


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    Meanwhile, although the heated tobacco flavour ban is by far the most impactful aspect of the proposal, the amendment does bring other changes to heated tobacco products, too.

    It will introduce a requirement for heated tobacco products as well as water-pipe tobacco to start carrying information and health warnings equivalent to those on combustible cigarettes and roll-your-own tobacco.

    The full amendment reads: “Exempt tobacco products for smoking other than cigarettes, roll-your-own tobacco, waterpipe tobacco and heated tobacco products as defined in Article 7(12), second subparagraph, from the obligations to carry the information message laid down in Article 9(2) and the combined health warnings laid down in Article 10.”

    It should also be noted that the amendment will create a definition of heated tobacco products in the TPD for the first time.

    It will now define a heated tobacco product as a “novel tobacco product that is heated to produce an emission containing nicotine and other chemicals, which is then inhaled by user(s) and that, depending on its characteristics, is a smokeless tobacco product or a tobacco product for smoking”.


    What’s next


    Publication in the Official Journal of the European Union is likely to take place within two months of  the adoption date (29th June 2022), unless the Council and the European parliament decide to end the scrutiny period before then by explicitly informing the Commission that no objections have been raised (early non-objection).

    The directive will then enter into force on the 20th day after publication. Once the delegated directive enters into force, member states are required to transpose it into national law within eight months, with a further three-month period until its effects hit the market.

    – Laura Garay Gómez TobaccoIntelligence staff

    Photo: Laurentiu Morariu

    Author default picture

    Laura Garay Gómez

    Legal analyst
    Laura holds a Master’s degree in Public Law from the University of Seville, Spain, where she mainly specialised in International Law and Administrative Law and a Master's degree in Law and Legal Practice from Universitat Oberta de Catalunya. She has also studied International and European Law at the University of Helsinki, Finland, under the Erasmus Programme. She has worked as an intern at the ACO Office of Legal Affairs for NATO in Mons, Belgium; as international entity management coordinator for a multinational in Warsaw, Poland; and as legal assistant in a law firm in Seville. Currently, she is pursuing a PhD in Roman law in modern European legal history at the University of Seville.

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