Issue 5, November 2000

The Commission’s proposal for a Directive on Tobacco Products was approved at first reading in the plenary session of 14^th June 2000. This approval was subject to 44 amendments, adopted after lengthy debate. Many of the Parliament’s amendments found favour with the Commission, but most were not included by Council in the Common Position agreed on 31^st July.

The second reading process is now underway. On 16^th October, the Environment Committee received and discussed the report and recommendations of its rapporteur, Jules Maaten. In his introductory comments, Mr Maaten stated his clear objective: to re-table as many of Parliament’s amendments as possible, consistent with achieving broad support amongst political groups in the Parliament, and eventually between Parliament and the Council; but also incorporating some textual improvements suggested by the Commission in its amended proposal.

This consensual approach is strongly supported by the health lobby. Tobacco is an issue which faces us all, because it is so endemic in society. The health community is concerned about the epidemic of disease and premature death caused by smoking, and believes that public authorities should do everything possible to address the harm caused by tobacco products. This is the purpose of the present Directive: to introduce stronger controls over the manufacture and presentation of a product that is widely marketed throughout the Community and damages the health of consumers.

Even the tobacco industry now acknowledges that cigarettes are addictive and harmful to regular users (www.philipmorrisusa.com); and some individual companies have welcomed the principle of more stringent regulation ‘in the public interest’. The provisions of the Directive will not, in themselves, guarantee consumer safety; for there is no such thing as a safe cigarette. But they will help to address some of the dangers involved in smoking, and create a regulatory mechanism to ensure that the Community can respond promptly to newly-identified tobacco risks in the future, as these become better recognised and understood.

Both Mr Maaten and the Commission have consulted widely with various stakeholders, including not only the health lobby but also the tobacco industry. Everyone has been given the chance to understand the purpose of the Directive and its likely impact. Of course there are some parts that the health lobby would like to strengthen, and others that the industry may consider too strong. But if the industry means what it says, it should now offer constructive support for the Directive in the interest of reducing the harm caused to its customers.

The health lobby looks to MEP’s to put the public interest first and to support the approach of Mr Maaten in the forthcoming votes in the Environment Committee and Plenary.

During the Environment Committee debate on 16^th October, MEP’s expressed concern about various aspects of the Directive. Here is the health lobby’s view:

• Legal base

Does the internal market Treaty article (95) provide an adequate legal base for this Directive, given doubts raised by the recent ECJ decision to annul the Directive on Tobacco Advertising?

The present proposal seeks to regulate tobacco products, which are marketed and sold to consumers throughout the Community. The ECJ decision concerned the advertising of a product. This is a very different Directive, concerned with trade in a product that causes harm to its users.

The product Directive is a recast of three existing Directives, first implemented in 1989, 1990 and 1992 (Council Directives 89/622/EEC, 90/239/EEC and 92/41/EEC). Two of these have actually been examined by the European Court of Justice, which issued advice on interpretation but did not question the legal base. The third Directive has never been challenged.

There is no reason to believe that the legal base of the product Directive is in any way compromised by the recent Court judgement on a different aspect of tobacco control, namely advertising restrictions.

The Directive regulates maximum yields of tar, nicotine and carbon monoxide in products manufactured and marketed in the EU. The tobacco industry claims that this amounts to an export ban and will lead to job losses in EU manufacturing plants.

However, the Commission proposal makes no mention of exports. It establishes a principle, namely that all products manufactured in the EU should be covered by the same rules. Several members of the Environment Committee have already made the point that this is an issue of equity. The Directive seeks to reduce the harm caused to consumers in the EU. How can it possibly be right to export more harmful products to consumers outside the EU?

Exports, in any case, pose a practical risk to EU consumers. Billions of cigarettes intended for export are eventually smuggled back and sold on the black market in the EU. Or maybe they are exported with a view to smuggling. For example, UK Customs recently confiscated 400m Regal Cigarettes as they were smuggled into the UK. But Regal is a brand that is only smoked in the UK: they can only have been exported in the first place in the knowledge that they would eventually return as smuggled goods. (News Report, The Independent, 24 Sept 2000). Tobacco for export and tobacco for local markets have to be subject to the same rules, in the interests of all consumers.

Alleged job losses are always threatened by the tobacco industry in response to any proposals to tighten regulation. In 1989, for instance, the industry claimed that the reduction of tar yields would lead to massive job losses – which never happened . The claims are never justified, are hypothetical and fail to materialise. The real cause of job losses in the industry is increased mechanisation, introduced by tobacco companies themselves in order to reduce unit production costs. The industry should be consistent about its apparent concern for lost employment.

The principles of transparency and proper information lie at the heart of the EU’s consumer policy, and rightly so. They reflect the belief that consumers ought to know what they are buying and that, without adequate information, they cannot exercise their right to make a properly informed choice.

The Directive seeks to ensure the disclosure of all ingredients, additives and even materials used in the production process. The industry should be required to explain the purpose of each additive and to confirm that it is not dangerous to human health – on its own, or in combination with other contents. It is particularly important that the industry should not be allowed to manipulate substances to make their products more addictive.

Contents disclosure should be made on a regular basis, with the information fully accessible to the general public.

The Directive aims to ban the use of words like ‘light, mild’ etc – words which have been incorporated into brand names in order to convey the impression that they are somehow healthier, or at least less harmful, than other brands. The industry pretends that the words describe something different – either the colour or the flavour of the tobacco. If that is what they really want to achieve, they should do it clearly. But, of course, they don’t. They prefer ambiguity. For ambiguity can be interpreted in many different ways.

Contrary to the industry’s claims, there is evidence that the use of these words is intended to mislead and that light cigarettes are used as a substitute for quitting. We believe that the use of ‘mild/light’ etc should not be permitted.

There has been some talk in the Parliament of creating an exemption for existing brand names. We do not agree with this proposal. We believe that any such derogation would merely create legal loopholes, which the industry would rush to exploit.

Vote in the Environment Committee: 20/22 November

Debate and vote in Plenary: week beginning 11^th December

Health Council: 14 December