Advocate General endorses continued prohibition

Back in January last year I scribbled about the EU and its ideologically founded belief that all forms of tobacco are a “bad thing”.  Since then, the New Nicotine Alliance asked for, and received, permission to join the legal action brought about by Swedish Match in July 2016 in the UK.

As with any legal challenge, I expected a slew of articles to push a certain agenda – i.e. in favour of the status quo. Imagine my surprise when not very much happened. Until recently that is.

Naturally, having been involved – only peripherally mind – with the NNA participation of the case, I did keep a close eye on proceedings and wasn’t at all surprised with the response from the UK (despite not writing about it at the time – real life, it sucks sometimes). As the illustrious Puddlecote penned at the time:

How trotting off to Luxembourg to oppose relaxing the ban on snus, which has shown to be wildly successful in a long-term real world experiment, fits in with “maximising the availability of safer alternatives” is anyone’s guess.

Indeed. After all, the latest Tobacco Control Plan is quite clear on the subject:

Our National Ambitions

4. Backing evidence based innovations to support quitting

We are committed to evidence-based policy making, so we aim to:
– Help people to quit smoking by permitting innovative technologies that minimise the risk of harm.

– Maximise the availability of safer alternatives to smoking.

Quite how the continued prohibition of Snus within the EU fits in with that statement is anyone’s guess considering the overwhelming evidence to support loosening the ratchet of EU-wide prohibition (Lancet p 1364).

Naturally, none of the evidence has been given any realistic merit by the Advocate General:

In today’s opinion, Advocate General Henrik Saugmandsgaard Øe considers that the prohibition on the placing on the market of tobacco for oral use is valid.

Once again, the ECJ is showing itself to be the legal protectionist racket of the political EU. But what about the stack of evidence? Well, take a guess:

As regards whether that prohibition is compatible with the principle of proportionality in the light of developments in scientific knowledge, the Advocate General is of the opinion that the EU legislature did not exceed the limits of its discretion in finding that tobacco for oral use is addictive and harmful to health in so far as it increases the risks of certain harmful effects and may increase the risks of other harmful effects. The fact that some of the data, on the basis of which the legislature concluded that tobacco for oral use is harmful, are challenged by studies indicating the contrary is not sufficient to call that conclusion into question.

Oh, and before you even think that if they decided to lift the ban (which they won’t – natch) there wouldn’t be any other restrictive measures to implement:

Lastly, the Advocate General notes that, as the Court previously held in 2004, alternative measures to prohibition of the placing on the market of tobacco for oral use, such as the imposition of technical standards to reduce the harmfulness of the product or the regulation of labelling or sales conditions, would not have the same preventative effect, inasmuch as such measures would let a product which is in any event harmful gain a place in the market.

Y’see, the EU (via the TPD2) could have lifted the ban on Snus and incorporated some of the same advertising and ingredient restrictions that have been imposed on combustible tobacco and e-cigarettes, which are shown to have some effect on preventing unintentional take-up (not completely mind, there’s a raft of other measures that aid in that, whether you agree with those measures or not), but no. The EU and the ECJ have demonstrated how much of a regulatory leviathan it really is.

These political and legal entities pile bureaucracy upon bureaucracy and exclude the public as much, and as often, as it can. Naturally, this is only the opinion of the AG with the judgement itself to be decided at a later date this year, but as we saw with the Totally Wicked Article 20 Challenge, the ECJ generally upholds the opinion of the Advocate General, this will effectively kill the challenge stone dead, and with it the ability to provide a safer form of tobacco use – which, incidentally has led to dramatic declines in smoking in Sweden and Norway in a short space of time – will continue to be banned for the foreseeable future.

So the AG opinion is a great day for bureaucratic intransigence, but a terrible day for the everyday people. But then, it’s never been about health, has it?