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ECigIntel - British firm disputes European e-cig regulations in court - A British e-cigarette supplier is the sector’s first independent to launch a legal challenge against the Tobacco Products Directive (TPD), the EU rules published this year that will regulate the e-cig market in European member states.

Totally Wicked, a large UK-based e-liquid manufacturing company which exports across Europe and has a dominant position in the UK e-liquids/refillable e-cigarette market, says that article 20 of the directive – the section dealing with e-cigarettes – breaches European law.

It argues that the article “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”.

European legal procedures mean it cannot contest the article directly in court, but instead must ask the British government to do so. The first stage of that process has now passed, with Totally Wicked receiving permission from the UK’s administrative court to bring a judicial review action, and a further hearing is set for 6th October in London.

There, a judge will determine whether the issue should be referred to the Court of Justice of the European Union (ECJ) in Luxembourg. It is expected that the British government will agree with that path, and the matter proceed to the ECJ next year: “The [British] secretary of state for health has accepted that it would be appropriate for the issues raised by Totally Wicked to be referred to the ECJ for a ruling…whilst maintaining that article 20 is lawful,” says Totally Wicked.

The company’s lawyers are working with the government on the details of a submission to the ECJ.

Said Totally Wicked’s managing director Fraser Cropper: “Many of the regulations contained within article 20 of the Tobacco Products Directive would result in electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products.  Not only is article 20 therefore disproportionate, we believe it is also contrary to established EU law.

“It is for these reasons that we have taken the significant step to challenge formally the directive in the courts, and we are delighted with the progress made to date.”

Other challenges to the TPD have already been begun by tobacco giant Philip Morris International, which is disputing the directive on several broad grounds, and by the Polish government, which is focusing on the restrictions it will apply to menthol cigarettes.

What This Means: Our legal team will be providing an in-depth look at challenges to the TPD in the next couple of days.

It is, of course, far too early to say how the ECJ might rule, without considering the arguments of both sides in detail – but in the most extreme case, it could throw out all or part of the TPD (depending on what, exactly, is being challenged). That would leave the European e-cig scene wide open to fresh regulation, and devoid of it in the meantime.

Even if the ECJ does not go that far, the individual EU member states’ implementation of the TPD can still be challenged too. So Totally Wicked may be only the first of several, and this may be only the beginning of a long period of uncertainty.

– Barnaby Page ECigIntelligence staff

Photo: Cédric Puisney