Consultations with pre-determined outcomes are invariably a terrible idea. They are used to provide justification for actions that authorities have already decided to take. It should be obvious that when the European Commission consults stakeholders and the wider public there should be no hint of bias in favour of only wanting to hear the ‘correct’ view. Yet the Commission’s recent consultation on tobacco control suggests that it thinks it already knows the ‘right’ answer to a crucial question, writes Political Editor Nick Powell.
The European Commission’s three-month consultation on the evaluation of the legislative framework on tobacco control closed in May and its outcome is awaited. What has become the key issue in discouraging the smoking of cigarettes is the role of alternative tobacco products in getting smokers to give up cigarettes. But it’s hard not to fear that a supposedly in-depth consultation will deliver a superficial answer that conflates smoking with the consumption of tobacco in all its forms.
In fairness, the consultation acknowledged the need to ensure that the policy work is carried out in an open and transparent manner, informed by the best available evidence, and backed by the comprehensive involvement of stakeholders. It recognises that there were potential knowledge gaps to be identified and more evidence, backed by better data, was required.
So far, so good. But only one question, in just one of five questionnaires, asked if respondents saw a potentially positive contribution to tobacco control from novel and emerging products. All the other questions about these products exclusively focused on their health risks, ignoring how vapes and new tobacco products are a much safer alternative to smoking cigarettes.
The Commission sometimes appears content to let a UN agency, the World Health Organisation, set the agenda in this area. It seemingly breached its own procedures by not consulting member states before representing the European Union at a working group with the WHO on tightening the rules on tobacco advertising and sponsorship.
Such commercial activity is of course already very tightly regulated, often to the point of being banned. However the working group would like to extend the rules to such an extent that they could potentially cover social media posts by private individuals, scientific journals’ reporting research findings, and companies discussing their products on employee recruitment websites or in communications with investors and other stakeholders.
Nevertheless, if the Commission is solely focused on reaching a restrictive position that might prove sufficiently popular in the European Council and the Parliament, it could be on the right track. The French Prime Minister, Elisabeth Borne, recently announced announced that her country will become the latest EU member state to ban disposable electronic cigarettes, following the example of others including Germany, Belgium and Ireland.
Prime Minister Borne cited the need to stop the products getting into the hands of children, without addressing their importance for adult long-term smokers trying to give up cigarettes. France still has a relatively high number of cigarette smokers, compared to other European countries. An attempt to tackle the issue through tax increases has caused smuggled and other illicitly distributed cigarettes to flood onto the market.
In the European Parliament, the subcommittee on public health, known as SANT, is considering a draft report on non-communicable diseases. It includes a section on tobacco and the role of safer nicotine products such as vapes. The definitions it uses have alarmed the European consumer advocacy umbrella organisation ETHRA (European Tobacco Harm Reduction Advocates).
ETHRA is a collection of national consumer organisations, public health experts and scientific partners. It has written to the SANT Committee’s members setting out its concerns. The consumer body says it represents 27 million EU consumers of safer nicotine products, including vapes, nicotine pouches, snus and heated tobacco products.
The letter says ETHRA is concerned that ‘tobacco use’, rather than smoking, has been identified in the draft report as a risk factor for non-communicable diseases. “In fact, it is the inhalation of the toxic byproducts of combustion that causes the harms from smoking … not simply tobacco use”, the letter continues. “Clarity and accuracy are vital when it comes to effective policy”.
ETHRA points out that encouraging smokers to transition to a non-combustible safer nicotine product can be an effective way to reduce smoking. It welcomes the section of the report that calls for a follow up on the scientific evaluations of the health risks related to electronic cigarettes, heated tobacco products and novel tobacco products.
A major concern is the suggestion in the draft report that the risks of using these products should be compared to consuming other tobacco products. Safer nicotine products are substitutes for combustible tobacco, so risk assessments should compare their use with smoking, not with consuming other tobacco products.
ETHRA argues that these issues go to the core principles of of proportionality and non-discrimination in the regulation of the EU’s internal market. As its letter puts it, “we believe rigorous application of these foundational principles would change the current approach to safer nicotine products. These principles justify risk-proportionate regulation with a critical distinction drawn between combustible (harmful) and non-combustible (far less harmful) products.
Safer nicotine products are a popular and effective means of smoking cessation but there is a very real danger that the current trajectory of policy making in the Commission, Parliament and member states will lead to serious unintended consequences. Restrictive regulation will almost inevitably lead to the development of a black market, beyond the reach of public health safeguards. Most seriously it could lead to more European citizens continuing to smoke cigarettes -and dying as a result.
