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UK vapers tempted by Brexit, but devil lurks in details

Written by || 22nd June 2016 || Regulatory briefing |

voting - Mike Licht 300x180As Britain’s debate on leaving the European Union reaches fever pitch in anticipation of Thursday’s referendum, vapers and e-cigarette advocates are as divided as the split nation.

An apparently large segment of the vaping community believes that a departure from the EU, or “Brexit”, would provide the best and perhaps only chance to modify or repeal the recent British e-cig legislation that was mandated by the EU’s Tobacco Products Directive (TPD).

Indeed, a small-scale poll conducted earlier this month by Populus for Vape Club found 49% intending to vote “leave” against 40% preferring “stay”, at a time when the electorate as a whole was evenly split.

The TPD and the law it has led to are much disliked by e-cigarette users, largely for limitations on nicotine strength and e-liquid container sizes. Leaving the EU might in theory free the UK from the obligation to implement European directives, and pro-Brexit vapers believe that – given Britain’s generally liberal attitude toward e-cigs – the London government could be prepared to reverse the law.

Said Stuart Fagg, who tweets under the name Stuart180: “It’ll be low priority but it can be changed out, not in. The TPD is almost certainly going to worsen.

“The [European Court of Justice] ruling on [Totally Wicked’s] challenges demonstrates that any fair resolution inside is nigh on impossible,” Fagg told ECigIntelligence.

Fiona Hodge, who tweets as FleaBagLady, agreed: “The [British] establishment now acknowledges that e-cigs are at least 95% safer than cigarettes and that they should be promoted as an alternative to smoking at the same time that the EU is outlawing the most effective products and the advertisement and promotion of the devices,” she said.

“What sort of nightmare are we living in when our own government may have to spend our money informing us of the health benefits of switching to vaping because the EU has made it illegal to promote them?

“The TPD and the devastating impact it will have on public health, its failure to correct the mistake when experts point it out, the corruption and lobbying behind the legislative process, and what this has shown me about how undemocratic and unjust the system is in general, is why I am adamant we must rid ourselves of this rotten liability.”

 

On the other hand

 

However, there are also concerns that if Britain did leave the EU, its e-cigarette industry could suffer, and the loss of Britain’s voice in European policy-making would be a blow to vapers in other EU countries when they argue for gentler regulation.

Fagg acknowledges that while British vapers might benefit from a Brexit, “this would likely mean inability to trade e-cigs in Europe. This also means we are less likely to have any influence on the TPD for the rest of the EU.”

And Judy Gibson, who tweets as JoodiG, agrees. Although she is no fan of the TPD either, she believes that “UK vapers owe their European compatriots allegiance and support. Brexit would leave us impotent to exert any meaningful pressure on other EU member countries. I fear by deciding to exit the EU, we will not only lose any capacity to influence EU regulations but the whole future of alternative harm reduction in Europe will suffer.”

Others doubt that Brexit would free UK vapers from the TPD, in any case. Clive Bates, the noted British proponent of e-cigarettes and former director of Action on Smoking and Health (ASH), contends that “whether we exit or remain, the most likely outcome is continued TPD compliance indefinitely” through treaty arrangements similar to the Agreement on the European Economic Area, which already necessitates that non-EU members such as Norway follow many European regulations.

Bates also suggests that revising e-cigarette law would be so low on a very long legislative list for post-Brexit Britain that the May 2021 deadline for revising the TPD at European level would probably come sooner. In other words, according to Bates’s analysis, staying in the EU offers a better chance of getting vaping regulation changed quickly.

 

What This Means: We think that the possible negative economic effects of Brexit domestically, and the obstructions to trade with Europe that might emerge, would be bad for the UK e-cigarette industry.

Set against this, in the narrow calculus of pros and cons for British vapers and the sector, must be the possibility that the UK’s TPD-based legislation would be changed, perhaps ameliorating the provisions on advertising, nicotine concentration, and container size.

But there would be no chance of that happening immediately: the TPD would remain in force on the UK during the years that Brexit mechanics were negotiated, it might continue in force thereafter as a condition of the new UK-EU relationship, and even if it did not, e-cigarette regulation is hardly likely to be a prime concern of government.

On balance, we conclude that Brexit offers minimal benefits for this area specifically, though it is fair to add that neither does the Bremain option.

But there is a larger issue too. Important as vaping is, it is not the whole of public health. And important as public health is, it is not – or should not be – the crux of a political decision that, if it comes down in favour of Brexit, will have far-reaching and long-lasting effects making it Britain’s most significant for many decades.

– Barnaby Page ECigIntelligence staff

Image: Mike Licht