Why we feel we are left with no option but to place our contentions in front of the judiciary.

Guest post from Fraser Cropper, CEO of Totally Wicked.



Totally Wicked, as some readers may be aware, has filed a challenge against the Tobacco Products Directive (TPD), and I want to take this opportunity on the Save e cigs blog to explain a little more about what we have done and why we feel we are left with no option but to place our contentions in front of the judiciary.

Firstly we haven’t taken the decision to challenge the TPD lightly, and we would not have undertaken this if we didn’t believe that a) we are doing the right thing, and b) that we have what we believe to be a solid case.

Our legal challenge is essentially questioning why the TPD mandates that e- cigarette laws should be stricter than tobacco laws. Article 20, the article that relates specifically to electronic cigarettes, to our mind represents a disproportionate impediment to the free movement of goods and the free provision of services. It places electronic cigarettes at an unjustified competitive disadvantage to tobacco products; it fails to comply with the general EU principle of equality, and breaches the fundamental rights of electronic cigarette manufacturers.

Therefore as a company are asking that the EU courts consider the TPD and pass its objective judgement on the regulatory framework that the TPD has delivered.

Article 20 will place unnecessary burdens on the industry, while at the same time completely ignoring the core needs of the user, those of diversity of product range, varying nicotine strengths and a vibrant community to encourage and support. All of these will be removed by the TPD.

We want all consumers to have enough information to make a judged decision and make sure that quality is of a standard that is acceptable. We want regulation that protects customers from ingredients and product deficiencies that could cause them harm, and this can easily be achieved through regulation that is proportionate, that gives the sector the justifiable opportunity it needs to have to give people a realistic option other than conventional cigarettes.

There is enough compelling evidence and research that proves e cigarettes are hundreds of time safer than conventional cigarettes, so our basic premise is this:why should our product be placed under greater regulatory constraint than a product that has killed many hundreds of thousands of people, and continues to do so? Where is the regulation that reflects the value these products are bringing? 2.5. million users in the UK have independently chosen to use e cigs, but nowhere in the TPD is the transformational potential recognised and engaged constructively.

It is a fallacy to suggest there is no ability for the government to affect the necessary controls, because there absolutely is enough control within the consumer regulations to suitably regulate electronic cigarettes, however the government have not chosen to utilise them. There are problems; there are imports that are not acceptable, yet the current regulatory environment could do away with them, if there was a will. Instead the TPD instructs disproportionate regulation that will significantly adversely affect a creative and paradigm changing nascent industry that deserves to be supported.

We want to grow as a business, we are an ethical company, we employ over 150 people directly and many hundreds more through our reselling base, but we have an illegitimate threat hanging over us. We are in the process of opening a new fluid production facility here in the UK that will provide jobs, and produce e liquid of the highest quality and standards, yet we have no idea how the TPD will impact this.

We are optimistic about the hearing in the Administrative courts on the 6th October, we expect to be heard in the CJEU next year, and we very much hope that the outcome will be a Tobacco Products Directive that reflects the reality of e cigarettes, the value they are providing, has them in a context that reflects the users needs and ultimately lets us get on with running our business – one of selling excellent quality products that have transformed many thousands of users’ lives.