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The International Tobacco-Control Network
International Union against Cancer and the
Association of European Cancer Leagues
EI Liaison Office, Brussels
Proposed EU Directive on
Tobacco Product Regulation

Second Reading in the European Parliament
Rapporteur: Mr Jules Maaten, MEP
Outcome of the vote in the Plenary Session
   

 

Wedns, 13th Dec 2000

 

Background

Parliament’s role in the co-decision process that leads to European legislation involves three stages: First Reading, Second Reading and (if necessary) Conciliation. The First Reading vote on the Tobacco Products Directive took place in June 2000. Parliament approved the Directive in principle, subject to 44 amendments that were adopted after considerable debate.

The other partner in the co-decision process is the Council of Ministers – in this case, the Health Council. The Council agreed its response to the proposed Directive - known as its ‘Common Position’ - in July. In doing so, it failed to take account of many of Parliament’s amendments.

There has to be agreement between Parliament and Council in order to finally adopt a Directive. So the challenge for the Parliament, during the past three months, has been one of seeking to reinstate some of the amendments agreed in June but then ignored by the Council, without provoking stalemate by making demands on the Council that it could not possibly accept.

Parliament faced three choices: to reject the Common Position; to accept the Common Position without amendment; or to accept the Common Position subject to amendment. Parliament chose the latter course, which means that there will now be a process of negotiation (known as ‘Conciliation’) between Parliament and Council to determine the final text of the Directive.

Here are some of the key outcomes of Wednesday’s vote:

Legal base

An attempt to reject the Common Position, on the grounds that it could not be lawfully based on Art 95 (Internal Market provisions) of the Treaty, was defeated (187:330:15). Art 133 (Common Commercial Policy provisions) was added as an additional legal base, in order to justify the implicit ban on the export of tobacco products that do not comply with the requirements of the Directive (359:166:11).

The following amendments were adopted:

Recitals

7  Justifies the regulation of carbon monoxide (321:198:11)
7(a)  Calls for evidence-based evaluation of tobacco products for which harm reduction is claimed by the manufacturers (344:192:14)
9(a) (new) Acknowledges the consequences for tobacco exports
9(b) (new) Refers to existing Community legislation on the use and labelling of genetically modified organisms
11a (new) Urges the development of EU testing standards (for yields)
13 Introduces warnings on vending machines
14a (new) Refers to the socio-economic cost of tobacco use (322:203:4)
16(a)(new) Urges Member States to ban ingredients which increase the addictive properties of tobacco products
18 Suggests that certain terms (such as ‘light/mild’) may continue to be used if they already form part of a registered trade mark (358:180:8)
21a (new) Calls for the development of testing standards for tobacco products other than cigarettes
22 Suggests the principle of a common list of authorised ingredients
23b (new) Highlights Community expenditure on tobacco farming as against disease prevention (413:103:27)

Articles
1 Re-inserts ‘a high level of health protection’ as one of the objectives of the Directive
2(1) Takes account of existing Community legislation on GMO’s (327:194:20)
2(5) Re-inserts ‘including paper, filter, ink and adhesives’ within the definition of ‘ingredient’
3(1a)(new) Requires Member States to ban the use of ingredients which cause addiction; and
   Defers final implementation date of the Directive in regard to exports of tobacco products until 1st Jan 2007 (401:134:1)
4(4) Changes the frequency of testing from annually to ‘whenever there is a change in the composition of the ingredients’ (371:227:1)
5(2) Elaborates the text of the general warnings
5(2) para 2 Allows Member States to authorise the use of colour photographs or other illustrations for the additional warnings (442:92:27 - RCV)
5(4) para 1 Increases the size of the general warnings (front of the pack) to 30%, and the size of the additional warnings (rear of the pack) to 40% - slightly bigger for more than one official language (318:203:15)
5(4) para 2 Reduces the size of the warnings on tobacco products other than cigarettes (from 25 sq cm to 15 sq cm)
5(6) Authorises the use of irremovable stickers for warning texts on tobacco products other than cigarettes
5(a)(new) Mandates health warnings on tobacco vending machines
6(1) Elaborates ingredients information to be provided for each brand of cigarettes
6(2)(a)(new) Requires Member States to publicise the list of ingredients for each product, indicating tar, nicotine and carbon monoxide)
7 para 2 (new) Introduces exceptions to the ban on the use of words such as ‘light/mild’ for trade marks registered and ‘effectively marketed’ before the date of adoption of the Directive (358:180:8)
11(a)(new) Calls for a new Directive, to be adopted within two years of the implementation of the present Directive, establishing a common list of permitted ingredients
11 para 3 Extends range of topics to be covered in the Commission’s first report on the implementation of the Directive
13(2)(a)(new) Allows products other than cigarettes, which do not comply with the provisions of the Directive, to continue to be marketed for a further three years

Annex
I Elaborates the text of the additional warnings (except that a proposal to change ‘Smokers die younger’ to ‘Half of all smokers die younger’ was defeated)

Amendments not approved

Several proposed amendments turned out to be controversial and did not attract sufficient support to be adopted. Amongst these were:

Recitals:

23(a)(new) Encourages Member States to tax tobacco products more heavily (301:229:6)
4(2) Requires that tests carried out in a testing laboratory approved by a Member State shall be valid in all Member States (295:227:7)

Articles:

3(1) Delete products ‘manufactured’ in the EU from the scope of the Directive (i.e., to neutralise the so-called export ‘ban’) (227:338:15)
5(4) Increases the size of the general warnings (front of the pack) to 35%, and the size of the additional warnings (rear of the pack) to 45% (87:448:16)

NB: a note on the voting figures

In order for any amendment to pass at Second Reading, it must secure support from an absolute majority of MEP’s. There are 626 MEP’s, so the magical figure is 314.

The three figures (shown in brackets above) indicate those in favour, those against and abstentions. There are some cases where there were more in favour than against a particular amendment; but the amendment cannot be adopted unless at least 314 MEP’s voted for it.

In cases where there are no figures indicated, the President recorded the outcome of the vote on a show of hands only (i.e., the amendment was so obviously adopted or rejected that there was no need to use the voting machines).

In some case, the letters RCV are added. RCV stands for Roll Call Vote, i.e., the vote cast by each individual MEP can be identified.

Where next?

Several of Parliament’s amendments differ substantially from the Common Position adopted by the Health Council. Yesterday’s vote will therefore trigger the Conciliation process.

The Health Council is meeting today (14th Dec). It is likely to issue a guarded welcome to the commitment and support of the Parliament, but reserve any real judgement until it has had time to consider the implications of some of the amendments.

In my opinion, the issues likely to cause most difficulty are:

  1. Exports

    2. The strengthened legal base is a bonus. The delay to 2007 is not.

  2. Misleading descriptors

    3. The Parliament’s proposed derogation for existing trade-marks seriously weakens the ban on words like ‘mild/light’ etc. I suspect the Council will wish to defend its more robust approach – i.e., a proper ban. It may be that a form of wording already in use in the Cosmetics Directive could provide an appropriate compromise.

  3. Vending machines

    4. Vending machine are predominantly in use in Germany and Spain; and only to a lesser extent in other EU countries. It may be difficult to justify any EU legislation to harmonise regulations on vending machines, which are essentially static (i.e., they do not practice any noticeable cross-border activity).

  4. Colour photos

    5. There is also difficulty in allowing Member States to authorise the use of colour photos and graphics etc., in a piece of legislation that is meant to harmonise regulations across the EU. If approved, this would lead to a piecemeal approach, with countries adopting their own different national rules – the opposite of a harmonised approach.

  5. Common list of ingredients

The wording of the Parliament’s amendment is likely to cause some procedural difficulty. The precise text says:

‘At the latest two years after the date referred to in Article 11, the European Parliament and the Council, acting in accordance with the procedure laid down in Article 251 of the Treaty, shall adopt a Directive establishing a common list of ingredients referred to in Article 6 which are authorised for cigarettes released for free circulation, marketed or manufactured in the Member States.’

This, in effect, is committing the Community to adopt a new Directive. But given the difficulty of getting this Directive approved, in the face of persistent opposition from the tobacco industry, how can such a commitment possibly be given in any meaningful way? It cannot. Nor can present legislation bind the Community to introduce future legislation.

There may be sympathy for the notion of a common list of ingredients, but not for the way in which it is proposed to achieve it.

Two final thoughts

First: in his speech to the Parliament on Monday, Commissioner Bryne indicated several amendments that the Commission itself felt unable to accept (some are listed above). If the Commission decides to maintain its objections, this has an impact on the Conciliation process. The Directive has to be approved, in Council, on the basis of a qualified majority vote. But at this stage any objections from the Commission, to any particular aspect of the Directive, can only be overridden by a unanimous vote in Council – an unlikely prospect.

Second: during the Second Reading process, the Presidency of the Council (and therefore the lead responsibility for any negotiations) has been the responsibility of France. This switches to another Member State at year end: Sweden will now have to take the lead in maintaining continuity in the process, and bringing it to a successful conclusion during the first half of 2001.

AH/BXL/14.xii.00