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A year of living with the TPD – where Europe’s member states stand now

On Saturday 20th May the 2014/40/EU Directive known as the Tobacco Products Directive (TPD) celebrates its first anniversary since it came into force in 2016.

The European Commission described the TPD a year ago as the tool that “aims to improve the functioning of the internal market for tobacco and related products, while ensuring a high level of health protection for European citizens”.

Although there is a single version of the directive that applies to all 28 member states, each country has approached the regulation of tobacco-related products in a different way, and most legislate for e-cigarettes in the same way as traditional tobacco.

Implementation of the TPD also seems to have prompted many countries to regulate e-cigarettes even in areas the directive itself does not cover.

For example, nearly all member states have now put in place a regulation of the use of e-cigs in public spaces – and some have created excise duties for e-liquids.

Product notification for every new vaping product on the market was imposed by Brussels with the aim of ensuring clarity and harmonisation in the European e-cig market.

 

Rush of notifications

 

Since May 2016, there have been 96,521 products notified through the EU Common Entry Gate (EU-CEG), according to the updated figures provided to ECigIntelligence by the European Commission.

Germany is leading the number of notifications, followed by the UK. Both countries greatly increased their number of notifications between January and May 2017, as also happened in other countries as Estonia, Bulgaria, Poland or Finland. ECigIntelligence has published a detailed breakdown of notifications by countries.

This rise in the number of notifications was anticipated by Europe’s regulatory authorities, who forecast a rush of notifications before 20th November 2016, when the transitional period to notify of existing products in the market, and also before the first year deadline.

Our combined TPD notifications tracker is updated regularly and includes more information about the notification process in the 28 EU member states, as well as the notification fees in every country.

How successful or otherwise the TPD has been in its aim to harmonise the European e-cig market will be clearer in a few years’ time. For now, the European Commission will not comment on that, while e-liquid manufacturers and distributors have varying views on the directive.

Jason Del Giudice, chief technology officer at Nicopure Labs, told ECigIntelligence that the company had registered the majority of its products in the EU, while limiting its e-liquid offer in Finland to tobacco-flavoured blends – the only flavour allowed under the Nordic nation’s law.

Neil McCallum, CEO of JAC Vapour, told us: “We think there are vast improvements that could be made to the regulations, such as removing advertising restrictions, removing tank liquid capacity and allowing larger e-liquid bottles. We believe that the age restrictions and the testing regime are sensible but could be improved.”

 

Expansion opportunity

 

The TPD is also generating interest from American manufacturers, which see in Europe a possible expansion opportunity after the deeming regulations came into force in the US.

The TPD established a transitional period until 20th May 2017 for the sale of non-compliant products. From then, tank bottles bigger than 10 ml must be removed from the market.

Most EU member states are working with this transitional period, although some exceptions can be found in the ECigIntelligence product restrictions combined tracker.

Most European manufacturers have gradually stopped producing non-compliant stock since last year and in recent months companies have been doing big promotions to sell all their pre-TPD products before the deadline.

Although countries were meant to transpose the TPD before 20th May 2016, in practice many of them took longer than that to approve their national laws.

Croatia is the latest country to transpose the TPD but there are EU three member states that have not yet transposed the directive – Luxembourg, Spain and Sweden.

A European Commission spokesperson told ECigIntelligence the commission is “monitoring this situation and taking adequate actions as needed”.

In Luxembourg, the transposition process “is in its final stages” according to the Ministry of Health. In Spain, a Ministry of Health spokesperson told ECigIntelligence they were working on it but could not say precisely when the TPD would be adopted, while the Swedish government has put forward regulation to come into force this summer.

 

What This Means: 365 days after the TPD came into force, the regulation of vapour products in Europe is clearer than it was a year ago. The directive has never been exactly popular – its limitations on nicotine strength and tank and container size, in particular, have been seen as hampering the development of products that will provide consumers what they want.

Nevertheless, there is a clear sense in the industry that it could have been much worse, especially when compared with the deeming regulations in the United States or indeed the original concept of a TPD based on pharmaceutical-style regulation.

The application of the directive by the majority of EU member states is a step forward in the harmonisation of the e-cig market in Europe and 2017 and the next few years will be important times for the vaping industry.

One of the main challenges of the post-TPD panorama in Europe is the taxation of e-cigarette products, an issue not addressed by the directive but a critical policy area in terms of its effect on the industry and consumers. Some ountries have already established a tax system for e-liquids and the European Commission is considering the introduction of excise duties for e-cigarettes and heat-not-burn (HnB) products.

Brussels launched a public consultation on taxation of e-cigarettes in November 2016. The responses suggest that raising taxes on e-cigarette products would cause an increase in cross-border sales and lead to some users returning to smoking tobacco.

Now, the European Commission is drawing up an assessment report on this issue and in the near future there will be a proposal concerning the taxation of tobacco-related products at European level.

– David Palacios ECigIntelligence staff