Those putting the case for snus included Gerry Stimson, Karl Lund, Lars Ramström and Martin Jarvis. The ban was defended by the UK, Norway, the European Parliament, the European Council and the European Commission.
This being a challenge to EU law, most of the arguments focused on proportionality and whether the ban is manifestly inappropriate The principle of proportionality requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question.
For more on the overall proceedings go to https://nnalliance.org/blog/226-challenges-to-the-ban-on-snus-news-from-the-ecj-hearing-in-luxembourg-25-january-2018
But just to focus on the UK position which Gerry Stimson describes as “weird”. It did not argue the substantial legal challenge at the High Court, but simply lodged an objection that the proceedings were out of time. Nor did the UK government submit a written observation to the European Court of Justice, but just gave an oral presentation. The only other country to do this was Norway.
The nub of the UK argument was that:
- The evidence for harm reduction put forward by Swedish Match is contradicted by other evidence;
- Snus has harmful effects and is addictive. There are doubts about the effectiveness of snus as a cessation product, concerns that it may be a gateway product, and given that the evidence is disputed and experts disagree, a decision about its regulation falls within the “margin of discretion”. In other words, if the experts disagree, then it falls to legislators to legislate one way or the other;
- Snus would be a new product if introduced to the EU today. But it is not a novel product within the meaning of the Tobacco Products Directive. “Lifting the ban would allow an addictive product onto the market. It would prevent the legislator from protecting public health”.
- The FCTC is important. Article 4 requires prevention of initiation of tobacco products in any form. We should take note of the “evidence based FCTC “. The law must prevent the initiation of a tobacco product by young people.
- There is no other measure – such as warning labels and age restrictions – which would be as effective as a ban.
- “Commercial interests cannot override public health risks of a product that might be harmful to the young. The protection of human health has priority over economic interests”.
The UK was represented by an official from the Department of Health under whose auspices, the UK supports tobacco harm reduction through the recently published Tobacco Control Plan and the latest evidence review by Public Health England. So there seems to be something of a disconnect between UK tobacco harm reduction policy and….err…UK tobacco harm reduction policy. So what might be going on?
It could be that from a purely diplomatic point of view, that whatever UK domestic policy is on this issue – with Brexit in full flow and negotiations best described as ‘delicate’, a missive from on high says the UK must not appear any more ‘anti-European’ than it already is. Or it could reflect a tension within the Department between those supporting tobacco harm reduction and those who either don’t and/or have go to the Conference of the Parties to present a united anti-tobacco industry front, especially as the UK oral presentation at the ECJ was littered with references to other cases involving Philip Morris. And while you might agree that ‘commercial interests cannot override public health risks’ nor should tunnel vision be allowed to frustrate the wider benefits to public health of appropriate and proportionate harm reduction measures.
And just as a footnote, in commenting about Japan’s proposed exemptions from a total public smoking ban, Dr Vinayak Prasad, head of the WHO’s tobacco control program said, “What I don’t get, after eight years of working in tobacco control at a global level … is how such an evolved nation is finding it difficult to prioritise health over commercial trade business interests”. Sound familiar?
Slightly strange goings on in Malaysia. A surprise wave of raids hit every vape shop with police and pharma regulators seizing all supplies of nicotine liquids and forcing vendors to hand over the details of their suppliers.
According to the local vaping advocacy group, MOVE Malaysia, the raids had been planned without the knowledge of the Health Ministry or other government departments; it seems the operation was organised by the Pharmaceutical Services agency, with the cooperation of the police. MOVE, which has good contacts with the Health Industry, had no warning that anything was being planned.
Vaping isn’t illegal in Malaysia, but regulations are handled by three separate government ministries and they sometimes have conflicting priorities. Regulation of nicotine liquids is a Health Ministry job, but Pharmaceutical Services have classed nicotine liquids as a poison, and that gives them the authority to seize them.
It’s not clear what will happen next. Malaysia has been steadily tightening the law on vaping, which has had a serious impact on the country’s once-thriving industry. Right now, as far as MOVE know, all nicotine liquids have been removed from shops and Pharmaceutical Services may be planning to raid wholesale suppliers too. If the pharma regulators have decided to eliminate nicotine liquid it’s going to be bad news – not just for vape shops, but for countless former smokers across the country.
However interviewed by the New Straits Times (MYS), Deputy Health Minister Datuk Seri Dr Hilmi Yahaya said that actions could be taken against those involved selling nicotine e-liquids. "For the past two to three years, we have been monitoring things on the ground by sending our officers to buy the liquid. When tested, we found some to contain nicotine. Some bold traders even attached labels, stating the percentage of nicotine content, on the bottles”
The Health Ministry was reported to have conducted a raid at a vape factory in Negri Sembilan and seized nearly 3,000 bottles of vape liquid, containing nicotine. One could imagine the Pharmacy Service hopping up and down at having their toes trodden on by health officials.
BBC News (UK) reported on the successes of introducing e-cigarettes at an Isle of Man jail during a six-month pilot. Prison governor Bob McColm said this has been a “major success story” with a “58% reduction in behaviour warnings and a 25% increase in those looking to give up smoking for good.” The Manx government report that e-cigarettes cost £8,500 less per year than nicotine replacement patches.
According to an article in the Independent (UK), Amazon customers have been complaining about concentrated food flavourings thinking they are vape juice. One site, Capella Flavour Drops which has apparently been collecting an impressive array of one-star reviews has “a clear disclaimer” that reads: “THIS IS NOT VAPE JUICE.” The author comments that “while many appear to be ignoring the product descriptions while looking for their next vape juice, [the problem] can be blamed on Amazon because searches for “vape juice” produce results for flavor concentrates”. The flavour is poor, but not harmful because the drops are made from the same ingredients that go into genuine e-liquids..”
If they can’t attack vaping on ground of the safety of the product, anti-harm reductionists will focus instead on the devices themselves claiming they will allow far more lethal substances to be vaped – and naturally attracting ‘young people’ down the road to doom and destruction.
So fingers must have poised over the keyboard at the story from British Columbia in Canada that a teenager had tragically died after taking one vaping hit of the lethal opioid drug fentanyl. Except it was ‘fake news’ and the Mayor of the town where it happened has apologised for personally spreading the story based on an unsubstantiated rumour. CBC (CAN)
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And finally – an interesting quote from the UK publication New Scientist. The article was referring to the magazine’s initial praise for Donald Trump for apparently getting serious about the US opioid crisis and then realising it was so much hot air.
“We make no apology for covering global political issues. Science does not exist in a bubble. It is influenced by, and influences, the wider world. It also underpins an enlightened world view that we strongly advocate. When powerful people do or say things that go against the grain of evidence, we will say so – and have done so throughout our 60-year history.”
I am not aware that New Scientist has had much that is positive to say editorially about safer nictoine products – so apologies if I have missed anything. But if not, it would be most welcome for this eminment publication to criticise those influential organisations who persist in going ’against the grain of evidence’ about the role of new nicotine products in tackling the smoking epidemic.