Guest post by Sarah Jakes.
So, after my earlier blog about the TW challenge to article 20 of the TPD, I decided to go to the hearing. The case was heard in the Administrative Court in the Royal Courts of Justice in London which is a fabulous building to visit, even if you don’t have an interest in a particular case.
Arriving early, and certain in the knowledge that this place was not going to be vape friendly, I mooched in the gothic portico entrance for a while, vaping and generally watching out for a face I recognised. I was soon joined in there by Jeremy Mean (Dept of Health) plus entourage, who gave me a ‘I vaguely recognise you but can’t think who you are’ kind of look before wandering off. I was on the panel at the APPG meeting in June, at which Jeremy also spoke.
Once through security, and having negotiated the labyrinth of stone corridors and spiral staircases to court 18 (the building is a bit like Hogwarts) I found the TW and DoH teams waiting to go in. Just before 10.30 we all took our seats, the lawyers to the front and the public (which included Jeremy and co) to the back. And so the hearing started. To say it was brief would be an understatement. It had actually been listed for two hours I believe, but this is how it went. Please note that judges and lawyers don’t actually speak like this, this is just my translation:
TW brief: We’d like you to let us go to court in Europe to ask whether article 20 is legally valid because we don’t think it is for several reasons.
Judge: Ok, you can go.
TW brief: I’ve got lots of other waffle prepared if you’d like to argue about it some more, but it sounds as if you’d rather not?
Judge: No thanks.
There followed some more brief discussion about how best to ensure that emerging evidence could be included in the case, and how to get the European Court of Justice to hear the case quickly, but by 10.34 the hearing was over. Even the TW team seemed surprised at how easily it had gone their way.
As a result of this decision by the court Totally Wicked can now take their battle to Europe, where they will ask the European court to decide whether or not article 20 is invalid for one or more of the following reasons:
It places restrictions on e-cigarette manufacturers and vendors which are disproportionate to the legitimate aims of the TPD, and there is no public health justification for doing so.
It imposes a higher regulatory burden on e-cigarettes than tobacco cigarettes, which are competing products, despite the fact that e-cigarettes are the vastly safer product and so there is no public health justification for doing so (I’m starting to see a common theme emerging here!)
It distorts competition in the markets between the two products.
It imposes penalties for failing to comply with requirements which are almost impossible to achieve in the real world because of variations created by manner and requirements of use, and so without clear standards a manufacturer or supplier cannot be confident of compliance.
There is no need for Europe wide standardised regulation of e-cigarettes as consumer products.
It infringes on the rights of the e-cigarette industry to conduct their business and there is no public interest or public health justification for doing so.
So it’s next stop Luxembourg, probably in about a years time. Who knows how much more scientific evidence we may have accumulated to deal with those ‘public health justification’ arguments by then. A quick word of caution though, although the decision on Monday to refer TW’s challenge to the ECJ means that the national court believes it ‘has legs’, the battle on that front is far from won. We must all keep up the pressure on the WHO and national governments to ensure that sensible implementation is pursued regardless of the outcome of this case.