Brussels, 19/05/2016 (Agence Europe) - Despite the attacks from the industry, the directive (2014/40) on tobacco products is soon expected to be applied in practical terms in the life of European citizens. Friday 20 May effectively marks an end to the text's transition period. Although the Commission is up-to-date with its secondary legislation, it does appear, however, that a good half of all member states are themselves behind on the matter.
The directive was adopted with much difficulty in May 2014 and sets out the minimum standards concerning the manufacture, presentation and sale of tobacco and its derived products. It left the member states up until 20 May 2016 to include into their respective national rules: (1) the inclusion of health warnings on 65% of the front and back of packets; (2) a ban on "characterising" flavourings in the majority of tobacco products; (3) a ban on packets in the shape of lipsticks or perfume, as well as packets containing less than 20 cigarettes, and; (4) the categorisation of electronic cigarettes as a medicine or tobacco product. It also intends to ban by 2020, flavoured cigarettes, such as menthol cigarettes, for which volumes in the EU stand at 3%.
Only 10 member states up-to-date
The Commission informed EUROPE that on Thursday 19 May only 10 countries had entirely transposed the directive: Belgium, Germany, Estonia, Italy, Latvia, Lithuania, Malta, Portugal, Slovakia and the United Kingdom. The health spokesman at the Commission stated "Several other member states are very advanced. We are therefore expecting other notifications over the next few days". He also indicated that five other member states (United Kingdom, Ireland, France, Hungary and Slovenia) intended to go further than the provisions included in the directive and introduce plain packets. This will apply on 20 May in the United Kingdom, in so far as the UK High Court rejected the complaint from tobacco manufacturers against this kind of packaging on 19 May.
Secondary legislation: three new texts
The member states are not responsible for everything, however: the directive includes the publication of 13 secondary acts, including nine before 20 May. On 18 May, the Commission adopted the three final implementing acts, which will be published in the EU Official Journal on Friday: (1) a decision establishing a priority list of 15 additives judged dangerous for which obligations of additional reinforced declarations will apply. This list includes menthol, guar gum, cacao, fenugreek, fig, geranium extracts (geraniol), licorice, glycerol, guaiacol, maltol, propylene glycol (added to e-cigarettes to create the smoke), sorbitol and titanium dioxyde; (2) a regulation listing the precise rules helps to determine whether a product contains a characterising taste and should therefore, such as menthol cigarettes, be prohibited. The text stipulates that a procedure can be initiated by a member state or the Commission and that the latter can launch a procedure even when a negative decision has already been made. The manufacturer must be informed when a procedure is being launched and has a month to submit its written observations. The decision must be reached by consensus between the member states, even though the opinion of the Commission prevails. The regulation also stipulates that in the event of there being any doubt, a group of independent experts can be set up; (3) a decision governing the implementation and functioning of the independent experts on tobacco products that contain a characterising taste. It stipulates that the group be composed of "highly qualified, specialised and independent experts" and that it can be assisted by a technical group recruited through public market procedures.
The other secondary acts that have already been adopted are: for the implementing acts, the format of declaration obligations on ingredients, the position of health warnings for rolling tobacco, the alignment of transposition deadlines for combined warnings, technical specifications for the provision/presentation/form of combined warnings and a common model allowing electronic cigarette manufacturers to notify the products they intend to introduce on the European market. For delegated acts, a new collection of warnings in the form of an image.
It will still be up to the Commission to adopt the following initiatives: technical standards on the mechanism for refilling electronic cigarettes (June 2016), those for traceability and follow up systems (2017) and those for the safety mechanism for conditioning units and its possible rotation (2017) as well as the essential elements in traceability data storage contracts (2017). The directive also includes publication before June 2016 of a report on the potential risks to health of rechargeable electronic cigarettes.
JTI continues the fight. Just ahead of the deadline, Japan Tobacco International (JTI) was quick to criticise the directive's substance as well as the way in which it is being implemented. Ben Townsend, the Vice President in Charge of European Affairs, described the directive as a "package containing the strictest anti-tobacco measures in the world". According to JTI, 15 member states have transposed the directive and is adding Austria, Bulgaria, the Czech Republic, the Netherlands and Sweden to the Commission list), including four countries six months ago (Italy, Lithuania, Portugal and Slovakia). Mr Townsend said the measures contained in the directives are so complex that the legislators in many member states have been working flat out to draft the necessary national laws, leaving everyone confused in a last-minute effort to respect the directive's final deadline. The company asserted that in the absence of guidelines from member states, it had to push forward alone in order to comply with the directive and that even if it is still possible for member states to transpose the directive by 20 May, it will be too late for the JTI to proceed to new changes in the given deadline.
Despite the ruling by the European Court of Justice confirming the legality of the tobacco directive and the other rulings of this kind (cf. Australia), JTI is particularly opposed to the plain packaging. The cigarette manufacturer affirms that it intends to appeal following the decision of the British High Court and that is eagerly awaiting the verdict on the project for the plain packet in Ireland (expected this June) and for the plain packet project in France (at the end of 2016, beginning of 2017). (Original version in French by Sophie Petitjean)