Brussels, 31 May 2021 – SFP welcomes the implementation report on the EU Tobacco Products Directive and calls for a swift and efficient revision of its provisions, to help achieve the ambition for a  tobacco free generation.

Summary of SFP’s statement:

• A revision of the TPD will be needed to support the Commission’s target for a tobacco free Europe by 2040. The TPD provisions should be strengthened with respect to labelling, misleading products features, flavours, in particular by the introduction of mandatory plain packaging across EU Member States and by banning cross-border distance sale of tobacco products across the EU.
• There is a need to provide Member States with a clearer legislative and implementation framework to ensure effective enforcement, particularly on product design, ingredients and features, and on harmonising marketing pathways. For this purpose, there is an urgent need to introduce a definition for heated tobacco products (HTPs) and subject them to the full effect of the Tobacco Products Directive
• In the revision of the Directive, the FCTC should be duly observed, in particular Article 5.3 and its Guidelines to secure the independence from the tobacco industry, particularly for the traceability system.

Introduction

SFP welcomes the European Commission’s report on the application of the EU Tobacco Products Directive. It establishes firmly that the TPD contributed to public health and to a sustained reduction in tobacco consumption among both adults and adolescents. The report substantiates how the EU and its Member States have achieved high levels of public health protection and a high degree of Internal Market convergence, which would not have happened in the absence of the Directive. This is an important achievement towards Europe’s objective to become tobacco-free.

The report and its supporting studies have taken an open and critical approach to the limits of the Directive’s impact and efficacy, and the provisions that did not withstand the test of time or pressures from the tobacco industry. It paves the way for a transparent and ambitious review.

Finally, the Commission’s report provides crucial evidence supporting civil society’s calls for a revision of the current Directive. While the 2014 Directive contributed to a much-needed decrease in adult and youth smoking, the decline rate must be strengthened. One in five young Europeans are still smokers, and one in four adults still use tobacco. As the European Union is committed to the ambition of a tobacco-free generation by 2040, the Directive must be updated to serve that vision.

Main conclusions of the European Commission’s report:

(*this is a summary prepared by SFP on the basis of the report. Interpretation is SFP’s only)

• In order to improve the TPD application, it is necessary to simplify the framework and review the definitions especially concerning novel tobacco products
• The regulation of ingredients is cumbersome with little evidence of public health impact. The discussion on measurement methods is inconclusive
• The EU should introduce plain packaging and larger warnings as well as strengthen labelling for all products with no exceptions
• The long term performance of the traceability system can be improved with stronger audits in terms of scope, operational impact, impartiality and public trust.
• It should be considered to ban cross-border distance sales
• The regulatory framework for novel tobacco products needs revising in order to close existing loopholes
• In relation to e-cigarettes, the precautionary approach has proven appropriate. There is a need to clarify rules on tank size, health labels, flavours, nicotine-free liquids, and advertising.
• The criteria for establishing “substantial change in circumstances” are strict and have impeded more speedy action in some areas.
• An agency and the uniform introduction of fees for products and ingredient assessment might improve and better organise the EU level assessment of ingredients and product compliance.

SFP’s assessment

Seven years after the adoption of the Tobacco Products Directive, the implementation report shows the legislation has achieved its goal. It demonstrates that the TPD, which entered into force on 20 May 2016, marked a significant milestone in  reducing in tobacco and implementing of the Framework Convention on Tobacco Control at the EU level. The report also clearly shows that the TPD reached the limits of its efficacy and that some of its provisions need reinforcement. Implementation challenges, novel products and the tobacco industry’s ability to find and exploit loopholes created new challenges for the functioning of the internal market and the protection of public health.

SFP and our Coalition partners from all over Europe have provided feedback, input and evidence on the application of the TPD in the past 18 months during the assessment phase, and consistently throughout the years since the entry into force of the legislation on 20 May 2016. We strongly welcome that the supporting study and the Commission report show that civil society concerns were heard and taken into account. We also applaud that throughout its work and in its final study, ICF - the consultancy tasked with  preparing the study – organised a fully transparent stakeholder consultation process, and identified transparently the input received from Member States as well as economic and NGO stakeholders.

However, an area of improvement in this regard is Track & Trace. The TPD created the first– and the largest and most complex to date -  regional tracking and tracing system for tobacco products. The TPD application report recognises the implementation of this system as a challenging yet ultimately successful process, and the support study shows that Member States were able to use it to its intended purpose and tend to be satisfied with its operation. The Commission acknowledges that public trust and transparency of the tracking and tracing system need improving. In order to achieve that, we respectfully urge the Commission to take steps to propose a revision of the TPD to remove the responsibilities allocates to the tobacco industry in the system’s operation  in order to respond to the letter and the spirit of the Illicit Trade Protocol obligations. 

Summary of SFP’s policy recommendations from the TPD review:

• Review, update, and harmonise definitions of tobacco and related products in the TPD and across EU legislation, including a specific definition for heated tobacco products and a revision of the definitions, classification and market pathways for “novel” tobacco products
• Introduce plain standardised packaging with 80% front and back pictorial health warnings for all tobacco products at EU level.
• Remove the roles and responsibilities of the tobacco industry in the tracking and tracing system to further secure its independence.
• Eliminate the exemptions from the ban on characterising flavours
• Prohibit cross-border distance sales of all tobacco products at EU level
• Ban filter ventilation, invest in independent measurement methods for emissions, and explore the possibility of a ban on plastic filters at EU level.
• Clarify and reinforce the conditions under which Member States can take further domestic regulatory measures to protect public health
• Ensure that the relevant provisions of the WHO Framework Convention on Tobacco Control and the International Protocol to Eliminate Illicit Trade in Tobacco Products are adequately integrated into the EU TPD.

Background on the 2014 TPD adoption process: a difficult fight against tobacco indsutry interference

In 2014, the EU Parliament and Member States adopted the Tobacco Products Directive with a stated objective to help drive down tobacco use in the EU. The TPD introduced landmark measures to implement best practices in tobacco labelling and packaging, one of the world first sweeping bans on characterising flavours that make tobacco products so attractive, the first regional traceability system, and a regulatory framework for novel tobacco and nicotine products.

That impressive progress in tobacco control, which responded to the evidence and heard the voice of the public health community, was achieved despite, and against,  fierce and to that day never-encountered tobacco industry pushback: a public consultation that gathered almost 90,000 responses, most duplicates, and almost all defending industry views; a scandal that saw a Health Commissioner resign;  break-ins in the offices of health NGOs; and tobacco industry document leaks revealing close monitoring of elected officials’ official meetings and private lives, as well as the instrumentalisation of innumerable front groups.

The EU TPD adoption process owed its success in no small part to a handful of dedicated officials, civil servants, and Member State representatives who put public health above false economic claims and who ultimately denied the tobacco industry the ability to keep hooking more of Europe’s children on their addictive products. It was resilient in the face of industry pressure also due in part to a coordinated public health campaign by dozens of NGOs across the EU. They made sure that evidence reached their governments and their Members of the European Parliament, enabling them to do the right thing for current and future generations.

Based on the Commission’s TPD implementation report and with the lessons learnt from the previous TPD revision process in 2012-2014, the review of the Tobacco Products Directive should now proceed in a timely manner with a renewed sense of purpose, and drawing on experience. This report can lay the foundation for an ambitious revision of the Directive to respond to current and foreseeable challenges.

The legislators tasked with the TPD are now, as then, likely to face unprecedented lobbying and interference from the tobacco industry.  SFP recalls that the EU and its Member States have  an obligation to protect public health policy from the vested interests of the tobacco industry and we urge all public officials at EU and national level to ensure that safeguards against undue interference are in. SFP will remain vigilant and committed to ensure an ambitious revision of the Tobacco Products Directive.

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