LFMI comments on European Commissions suggestions for the Tobacco Directive (2001/37/EC)

LFMI made a thorough analysis of European Commission’s proposal for the Tobacco directive (2001/37/EC), related public consultation and scientific evidence which was used in developing the proposal and provides comments and suggestions regarding the proposal.
From 2005 European Commission and European Parliament has recognized the need to remain in a constant dialogue with the citizens of European Union. Part of this initiative are the public consultations which provide an opportunity for citizens, NGO‘s and governmental institutions to express their views and opinions about EU laws and their changes.
The results and summary of the public consultation on the Tobacco Directive were published in the summer of 2011. This report summarized the results of the consultation, which had over 85 thousand participants.  The majority of respondents were individual citizens of nations of European Union, mostly Italy and Poland. A significant majority of them expressed their disagreement with the proposal to expand the Tobacco Directive by introducing new regulations and restrictions. Citizens and NGO‘s emphasized the lack of scientific knowledge base behind the proposal and inaccurate problem identification. Citizens also expressed a clear position to lift the ban on snus.
The majority of the citizens did not agree with the proposal to increase the area of the health warnings on the packaging of tobacco products. The most common argument was that there is no scientific proof of the effectiveness of such warnings. These claims are supported by the research from Canada which concluded that the increase of the warning area does not have a significant effect on the consumption of the product and does not increase the awareness of the consumer. The study of scientific evidence which was used by the European Commission while preparing the proposal also concludes that there is no scientific evidence suggesting the effectiveness of such measures on the consumption patterns.
Part of governmental institutions agreed with the proposal to increase the amount of regulation and restrictions, however it comprised only a mere 0.5% of all answers, while citizens and NGO‘s provided the remaining 97% of answers. This active participation illustrates the relevance of the problem for the citizens of EU countries. Statistics show that around 75,5% of respondents do not agree with the increase of restrictions and regulation or the expansion of the tobacco directive. 86% of respondents do not agree with the suggested increase of the warning area on the tobacco product packaging.
The results of the public consultation and scientific evidence provide no clear support for the proposal presented by the European Commission – to increase the warning area on tobacco product packaging to 75% of the area, do not lift the ban on snus, and restrictions and bans for ingredients that provide distinct taste (ex: menthol) to cigarettes. The generic packaging idea is also left on the table.
LFMI recommends to deny the proposal and to consider the results of the public consultation, which clearly indicate, that the respondents express disagreement with the proposed measures.
Health warnings covering 75% of packaging area
The requirement to increase the area of health warnings on the packaging of tobacco products up to 75% is supported by the need to inform the tobacco users about the health hazards, to decrease the demand and consumption of tobacco products.
It is unlikely that the suggested measure will be effective in any significant way. If it is assumed that current smaller warnings perform their function, there is no explanation, why they should be increased is and how it would affect the results. There is no scientific evidence suggesting that the increase of the warning area to 75% of packaging surface would decrease the consumption of tobacco products. This is also confirmed by the scientific study which was used by the European Commission in the preparation of the proposal.
If 75% of the packaging area will be covered by warnings the packaging would become almost indistinguishable. This would reduce the competition in the tobacco market and would harm the consumers. These restrictions would disturb the competition and producers would be restricted in their ability to display their distinctiveness. It would also become more difficult for new and potential market participants to enter the market and provide newly developed products. 
New requirements would not remove the need to provide information for the customer by the provider. If one marketing tool is restricted; other tools would become more active. For example, producers may develop double packaging, outside packaging with warnings and inside packaging with brand identity.
Packaging provides information about the product to the consumer. Tobacco producers develop attractive and informative packaging because it satisfies the needs of the consumer. Quality packaging allows the consumer to distinguish between legal and fake/illegal products. The proposal ignores the fact that consumers choose products and not just follow the advertising without expressing their choice. Everyday life decisions are much more complicated than a purchase of a particular product, therefore the assumption of mindless act of purchase induced by advertising is not correct.
Consumer responsibility should be promoted instead of restrictive measures. The principle of personal responsibility could be introduced into the health care system instead of proposed restrictive measures. Individuals who damage their health by consuming harmful substances should bear full or partial financial responsibility for their treatment. Current public health care system does not have incentives that promote healthy lifestyle and lower health care costs.
LFMI argues against the proposal to expand the area of the health warning on tobacco product packaging to 75% of the surface area. This proposal is not based on scientific evidence and is not supported by the affected parties as is shown in the public consultation. If implemented the proposal would harm the competition in the market and informed product selection by the consumer.
The proposal to ban substances that provide distinct taste to cigarettes (e.g.: menthol)
The proposal to ban substances that provide distinct taste to cigarettes is based on the assumption the menthol and other tastes are created for younger consumers.
The study of scientific evidence provided by the European Commission does not investigate the effects of distinct tastes in tobacco products or the effects of a proposed ban. Therefore it is not clear what the basis for such a proposal is. Scientific studies done in the US show that menthol cigarettes are consumer by minors slightly more than other groups, however a significant group of the consumer pool are older consumers. Menthol cigarette users cover all demographic groups.
European Commissions public consultation clearly indicated that citizens expressed clear disagreement with the proposed ban. The majority of respondents indicated the lack of scientific evidence as the major factor influencing their decision.
Menthol and other taste tobacco products are not perfect substitutes. This claim is supported by scientific study done in the US with 60.000 smokers. Participants of the study indicated that cigarettes with menthol and without it are not close substitutes. Therefore it could be suggested that the ban on menthol cigarettes would push a significant part of the demand into the shadow economy, especialy in countries with outer EU border. A ban on menthol cigarettes would leave no legal ways to purchase these products; therefore a significant switch to shadow economy is very likely.
LFMI argues against the proposal to ban menthol and other distinct taste cigarettes. The proposal does not have scientific basis and would cause unintended consequences.