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Controversial Ruling in Toulouse

A court in Toulouse, France has ruled against an electronic cigarette emporium that was sued by a nearby licensed tobacconist. The court ruled that the tobacco-free vaping devices sold by the Esmokeclean store must be considered tobacco products, since many people use them as a substitute for cigarettes.

As in much of continental Europe, the French government imposes a state monopoly on tobacco sales, meaning that cigarettes may only be sold in licensed tobacconist shops. If it is upheld by higher courts, the ruling will close all e-cigarette shops in the country. Esmokeclean plans to appeal.

As of last April, there were 141 e-cig shops in France, but industry wonks say that the number is undoubtedly quite a bit higher now, because of the burgeoning sales of vaping products. The French Stakeholders Group for Electronic Cigarettes (CACE) claims that 2500 jobs are threatened if this ruling is upheld.

French doctors are divided. Some have advocate encouragement of e-cigs as a smoking-cessation device, while others have held for strict regulation.

 A crucial element will be the response of French consumers of e-cigs, vapers, a population assumed to run toward one and a half million. In other localities, such as New York, groups of angry vapers have appeared at public hearings deciding the fate of the product. Many vapers are ex-smokers who claim with considerable passion that the product has enabled them to quit smoking when nothing else could. Regulators, flush with recent victories in achieving bans on public smoking, appear to be esthetically offended by the appearance of something allegedly harmless that looks like smoking. They claim that the product has not been proven to be totally safe (although the more honest among them admit that they are obviously many times safer than cigarettes), and they worry that e-cigarettes may "re-glamorize smoking", providing a a gateway back to cigarettes for ex-smokers and a path to nicotine addiction for teenagers. The fact that there is no evidence for this does not seem to shake their conviction that it is true. Speaking of evidence, the e-cig opponents engage in loud breast-beating about the lack of evidence of e-cig safety or efficacy in smoking-cessation, while ignoring the evidence that exists (Farsalinos, Burstyn, New Zealand).

There are three options for the regulation of electronic cigarettes. First, they may be treated as simple consumer products, like tables and chairs, and taxed with simple sales taxes. This has been the prevailing stance, since the product came on the scene at a fortuitous (or unfortuitous) moment when a concatenation of events prevented regulators from controlling them. They may be treated as pharmaceuticals, based on the claim that they aid in smoking-cessation. The US Food and Drug Administration (FDA) tried to do this but was prevented by the courts. The British MHRA (Medicinal and Healthcare Regulatory Agency) plans to do this by 2017, and the European Union is dithering about the possibility. Or they may be treated as tobacco products, something the FDA is leaning toward, and which the recent French case seems to uphold. Of course such a classification would have a very different impact in France, given the state-imposed monopoly on tobacco sales.

Currently, everyone is waiting for pronouncements by the FDA in the US and by the EU Commission in Belgium, but the decisions by French courts will undoubtedly have impact as well.

Certainly so will the activism of French vapers, and vapers worldwide.

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