LATEST ALERTS
The year is rapidly drawing to a close and there is still little concrete information on what the EU will do in its next revision of the Tobacco Products Directive (TPD3).
Outside being late, a few more predictions can be made at this point – though with lesser degrees of certainty. For instance, the primary focus of the TPD3 is almost certainly going to be so-called emerging tobacco products – alternative nicotine products that generally form parts of the harm reduction spectrum.
The main issues are likely to be regulation of pouches, flavours, disposable products, and actual alternatives to tobacco such as herbal heated products as well as products made using synthetically derived nicotine.
Just which way the EU will go on each of these matters is moving further into the realm of speculation. But it does feel relatively safe to say that the EU traditionally tends to take a cautious approach to change as well as a lowest-common-denominator consideration on product prohibition.
This is not to say the EU is a fan of light-touch regulation, but that, in order to appeal to the wide spectrum of countries, political parties and views it encompasses, it generally prefers to focus on primary aims such as free movement of goods and leave more stringent bans to individual member states that want them (and can demonstrate public health grounds for infringing on free movement).
Could nicotine pouches escape prohibition?
During the last TPD revision, speculation was rampant that the EU could harshly restrict vaping products – perhaps even going as far as to ban them. In the end, vaping got off relatively lightly. There were complaints on the introduction of nicotine caps and maximum sizes for bottles and tanks. But any complaints were generally minor in comparison to what some anticipated.
Under similar logic then, it would be unlikely that the EU would move to prohibit nicotine pouches entirely in the TPD3. There has been talk that a potential leaked consultant report was the first step in a move towards a ban – or at the very least the EU putting a finger in the air to see which way the wind was blowing on such a decision.
The lack of any sort of formal follow-up, plus the fact that it was a European Commission initiative and any proposal would also need European Parliamentary ratification – much harder to get on an issue like pouch prohibition – suggests that it is about as likely as a vaping ban was the last time around.
Further flavour bans could mean further workarounds
One possibility that is more likely than a full ban on pouches would be some form of non-tobacco flavour ban that could apply across nicotine products to include pouches, vaping and any other emerging alternatives. The EU TPD has already implemented one on tobacco products that has limited heated tobacco product flavours. So there is precedence for such a move. It would also find favour among groups concerned about youth uptake.
However, a move like that would mark a massive intervention into already established sectors – something the EU has not done before with its tobacco product regulations. At the time of the last revision, flavoured tobacco products were much less significant than pouches or vaping.
If there were a ban on all non-tobacco flavours in nicotine products, producers would likely look to see what workarounds they could bring in. Already, multiple producers have brought in herbal heated products as a way to get around the tobacco product flavour ban for heated tobacco products. Another option for pouches and vaping – depending on how regulations are written – would be to use the rapidly expanding array of synthetic nicotine alternatives.
It is very unlikely either of these emerging categories would be banned in the TPD3. There is some scope for regulation of herbal heated products – particularly as it would not have gone unnoticed by legislators that Big Tobacco companies have started to introduce their own versions into the market.
But in all likelihood both categories represent too minor an issue to formally prohibit through TPD regulation at this time. Some other restrictions could be possible. But the most likely scenario as things stand is such categories will be small enough concerns to remain untouched in the upcoming revision.
The importance of the legal language
The same may not prove to be true for other sub-categories. Banning disposable vaping products is likely to be popular among those wanting to be seen as strong on environmental issues or protecting the public health of young adults.
But some also consider a disposables ban to be unnecessary at the EU level, and member states that want to pursue this as a policy can simply do so on their own, without it needing to be a TPD-delivered initiative. The counter to this runs that online and cross-border sales undermine any member state ban if legislators do not make it EU-wide.
That factor, plus a growing popular consensus on banning disposables, suggests such a provision could be included in the TPD3. It could just be a matter of how it is written. A robust directive could eliminate the sort of window-dressing disposable products that are beginning to appear, such as formerly disposable vaping products with added charging or tank-refill ports that are still made from the same cheap materials as their disposable forerunners and lack the ability to replace fast-wearing components. If the EU is in fact planning on banning disposables, it should at least write the ban right.
- TobaccoIntelligence will be discussing these topics and more at the InterTabac conference held from 19th to 21st September in Dortmund, Germany, where our managing director, Tim Philips, will be in attendance. You can also hear our head of legal analysis, Pablo Cano Trilla, speak at the first conference session, and visit our booth.
– Freddie Dawson TobaccoIntelligence staff
Photo: Gerd Altmann
