E-Cig Company Wins Right to Challenge Validity of EU Tobacco Directive

A leading electronic cigarette manufacturer in the UK, Totally Wicked, was granted the right to challenge Article 20 of the EU tobacco directive seen as a misconceived and disproportionate regulatory framework for e-cigs and e-liquid. The company leads other e-cig manufacturers to bring the issue to the court based on its view that the directive will be an impediment to the free movement of goods and services within the e-cig industry. The hearing was held at the Royal Courts of Justice in Luxembourg to decide whether or not the article in question breaches EU law. Totally Wicked sees this initial success as an important milestone for the entire European e-cig industry.

The Ado about Article 20

While the apparent goal of EU’s Tobacco Products Directive (TPD) is to reduce the death statistics of smoking, it failed in appeasing the e-cig world when it drafted a lengthy section dealing with e-cigs and vapor products. Known as Article 20 under the Tobacco Products Directive 2014/40/EU, it is seen as a more stringent law than those applied to cigarettes despite the fact that e-cigs are not tobacco products. This impels Totally Wicked to raise its validity before the European Court of Justice.

Article 20 deals with the regulation of e-cigarettes based on its lack of solid scientific merits. When the revised tobacco directive becomes effective on May 2016, many of its regulations may radically affect the e-cig market. This includes the commercial marketing of e-cig products that have only satisfactorily complied with the directive. The directive also imposes limit on nicotine content in e-cigs, an unreasonable restriction for vapers in search for recreational nicotine alternative.

Another controversial measure calls for the submission of results of certain medicinal procedures for notification of toxicological data. The requirement may possibly lead to the removal of e-cigs in the market for years and even permanently. Although Totally Wicked and other tobacco manufacturers have applied for medical license, not many independent companies have the capacity to undergo the long and expensive process.

Fighting a Giant

Instead of just waiting for the next two years for the directive to be fully effective, Totally Wicked took a bold stance to prevent the EU legislation from controlling e-cig production, sales, and marketing. The company has not only legally challenged TPD, but it has undergone two major hurdles. First, the UK’s administrative court has accepted their brief and decided to make a judicial review action as to process and substance of TPD’s article 20. Second, the administrative court has elevated the case to the EU Court of Justice for a preliminary hearing on the legality of the directive. The next hearing is slated earlier than autumn 2015 at the same forum in Luxembourg.

Totally Wicked is the first e-cig manufacturer that held the bull by its horn. It succeeded in demystifying an ambitious directive that has the potential to seriously damage or destroy manufacturing, sales, and marketing of e-cigarettes within the EU. Hopefully, the first victory strings into a series of success in revising the TPD to make it more responsive to the needs and advancement of e-cigarette industry in UK and