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Nicotine Science & Policy | 20 August 2014

A legal challenge against the EU Tobacco Products Directive has been launched by UK e-cigarette manufacturer Totally Wicked. The first step will be to ask for the British court to rule whether a case can be taken to the European court.

 

The grounds for the action are that Article 20 of the Directive – which deals with the regulation of e-cigarettes – breaches EU law.

Totally Wicked argues that Article 20 represents a disproportionate impediment to the free movement of goods and the free provision of services, places electronic cigarettes at an unjustified competitive disadvantage to tobacco products, fails to comply with the general EU principle of equality, and breaches the fundamental rights of electronic cigarette manufacturers.

Permission has been obtained from the UK's Administrative Court to bring a judicial review action. Permission was obtained after issuing court proceedings against the UK Secretary of State for Health, which asked the UK court to refer the lawfulness of Article 20 for a “preliminary ruling” by the Court of Justice of the EU (CJEU) in Luxembourg.

The Secretary for State maintains that Article 20 is lawful, but has accepted that it would be appropriate for the issues to be referred to the CJEU for a ruling.

The initial hearing is scheduled to take place in London on the 6th of October 2014, where an Administrative Court judge will determine whether a reference to CJEU should be made and if so, the terms of the questions being referred.

If the matter is referred to CJEU, it is expected a hearing to take place in 2015 to determine whether Article 20 breaches EU law.

Fraser Cropper, Managing Director of Totally Wicked said:

“Many of the regulations contained within Article 20 of the Tobacco Products Directive would result is electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products. Not only is Article 20 therefore disproportionate, we believe it is also contrary to established EU law. It is for these reasons that we have taken the significant step to challenge formally the Directive in the courts and we are delighted with the progress made to date.”