Judge agrees that e-cig firm can dispute EU regulations in court

A British e-cigarette maker has won the right to challenge the European Union’s Tobacco Products Directive (TPD) at the EU’s main court.

A hearing is expected next year at the Court of Justice of the European Union (ECJ) to decide whether article 20 of the TPD, which covers e-cigs, breaches European law as alleged by e-cig company Totally Wicked.

It was this week given the go-ahead to make the challenge by a British judge, as the legal procedure requires. British government lawyers are understood to have worked with Totally Wicked in developing the argument that the case against article 20 should be heard.

Totally Wicked contends 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”.

The article, if implemented as written in European member states’ domestic legislation, would impose restrictions on e-cigarette suppliers including limits on nicotine concentration and a near-total ban on advertising.

At present, these measures are still on track to be incorporated into the individual countries’ laws by 2016, but Totally Wicked – and others contesting aspects of the TPD – will be hoping to change that.

“Today marks an important step in our legal challenge. Article 20 of the TPD would result in electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products. Not only is this article therefore disproportionate, we believe it is also contrary to established EU law,” Totally Wicked’s managing director Fraser Cropper was quoted as saying.

“It is vital that our industry is allowed to mature within a proportionate regulatory framework,” he said.

What This Means: The fact that the British government has worked with Totally Wicked to reach this stage does not mean that it supports the firm’s arguments against the TPD – indeed the health minister, Jeremy Hunt, reportedly wants the case to go to the European court precisely so that article 20 can be upheld. However, this week’s decision at least means the issues will get an airing.

– Barnaby Page ECigIntelligence staff

Related articles from ECigIntelligence:

• In depth: legal challenges to the EU Tobacco Products Directive
• In depth: regulatory and market impacts of the European TPD
• EU politician criticises TPD as ‘hastily drafted and heavy-handed’

Photo: Dan Perry

Barnaby Page

Editorial director

Before joining ECigIntelligence in early 2014 as one of its first employees, Barnaby had a 30-year career as a reporter and editor for newspapers, magazines and online services, working in Canada, the US and the Middle East as well as his current British location. He has edited publications covering fields including technology and the advertising industry, and was launch editor of the first large daily online news service in the British regional media. Barnaby also writes on classical music and film for a number of publications. Barnaby manages the editorial and reporting teams and works closely with the analyst teams, to ensure that all content meets high standards of quality and relevance. He also writes for the site occasionally, mostly on science-related issues, and is a member of the Association of British Science Writers.