Totally Wicked to challenge Article 20 of the TPD – a vaper’s view

In June 2013, when the UK MHRA announced that e-cigarettes would be regulated as medicines, the idea that anyone was going to destroy the very industry that had provided me, and millions of others, with an attractive and very much safer alternative to smoking, jarred me into action – and so I found myself in the increasingly frustrating world of consumer based vaping advocacy.

I had never been an advocate for or against anything much before and so found myself pretty much out of my depth most of the time. Public Health ‘science’ relies a lot on epidemiology and nebulous concepts such as gateway theory and the precautionary principle, and I quickly learnt that it is a field full of people who, not content with simply presenting the results of their studies, proffer political solutions to their perceived, and often contrived ‘problems’ as well. And more than that – there are those who, because of the letters behind their names, seem to be permanent invitees to comment on both press articles and TV and radio coverage, and who think nothing of using their twisted analyses of those studies to further their own political agenda. They never seem to consider the inherent risks to current vapers and smokers who may have switched in future in the event that their political aspirations were to be successful.

It was against this background that vapers in their thousands signed petitions and wrote to their MEPs in the latter part of last year. The European Commission, presumably at the behest of the governments which make up the Council (who in turn take their advice from the aforementioned Public Health lobbyists), had produced draft legislation which, if passed, would have required the Parties to regulate e-cigarettes as medicines (article 18 applied to e-cigarettes and later emerged as article 20). Article 18 was defeated in the European Parliament in December 2013, when MEPs, having listened to their constituents, voted for amendments which would allow most e-cigarettes to be regulated as consumer products. Unfortunately, during the ridiculously undemocratic (but leaky) process of ‘trialogue’ further amendments were agreed (now in article 20) which were basically a total compromise.

But compromise is rarely the right answer when you are talking about the health and right to chose of millions of people. What of those whose preferences are excluded by the arbitrary and restrictive measures of article 20 of the TPD? What about those businesses which will disappear, not because their products are sub standard or dangerous, but simply because they lack the resources to comply with the utterly disproportionate reporting requirements? What are they, just collateral damage? And if so, who are the beneficiaries of their loss? There is only one answer to the latter question – the tobacco industry, whose core product is not subject to anything like the same barriers to market and who as a result will welcome the return of many vapers to smoking with open arms.

The regulation of e-cigarettes could have been so much better. They are neither a medicine nor a tobacco product and framing them in the context of either was a mistake. Bespoke regulation could have had the effect of improving quality, raising awareness of the safer choice, providing a good level of information and confidence to the consumer and weeding out the cowboys whilst regulating marketing proportionately. Instead we have a mish mash of arbitrary limits and reporting requirements which will do no more than stifle innovation, limit consumer choice for no reason and ultimately inhibit the very appeal that has lead 2 million people in the UK alone to make the switch. The tobacco industry must have breathed a collective sigh of relief.

Consumers have been making these arguments for a very long time. So have the e-cigarette industry, however in the Public Health arena they are persona non grata. In the minds of some in the Public Health world it is simply not possible to be in business and at the same time care about the health and well being of your customers. Based on past performance this may be true of the tobacco industry, and it is true that that industry has recently bought in to the cigalike sector, however the TPD will barely affect their products. It will however decimate the refillable tank sector. Strange then, that that is the very sector that provides the products which most total switchers use and is comprised almost exclusively of companies independent of the tobacco industry.

Last week large independent e-cigarette company Totally Wicked leapt into the arena with the announcement of their legal challenge to article 20 of the TPD. Totally Wicked have long been a company that is not afraid of taking the bull by the horns, and certainly doesn’t shy from controversy, sometimes to their own detriment. Here is their press release: Totally Wicked Formally Challenges Tobacco Products Directive

This move has upped the anti to a very large extent. On the one hand, if they are successful it could be back to the drawing board for e-cigarette regulation in Europe; but on the other, if they fail, things could be made very much more difficult for any future challenges. If Totally Wicked succeed governments could take the opportunity to press for even more products to fall under medicinal regulation, but conversely the delay will allow time for more real science to emerge and many more vapers to join the fight. It’s certainly a gamble. As a vaper, and with only a passing grasp of the vagaries of EU law, I am both elated and terrified by the prospect of the challenge that they have taken on.

Totally Wicked and their advisors will be well aware of the limited basis on which such challenges can be made, and of the fact that thousands of consumers, many of whom will be their own customers, will be watching their every move. Vapers will feel that Totally Wicked’s fight is their fight too, the interests of industry and consumers are well aligned, and both support and criticism are sure to follow in the months ahead. It will be an additional challenge for them to pursue these proceedings whilst at the same time ensuring that their customers remain informed and understand the nuances of the decisions which have to be made along the line. But the status quo is intolerable, so someone had to do it and I’m not in the least bit surprised or disappointed that it was them. I salute them and wholeheartedly support them in this challenge. One thing is for sure, exciting times are ahead.


Sarah Jakes, Vaper.


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