UK based Totally Wicked, the UK’s leading independent electronic cigarette manufacturer, last week (1st October 2015) challenged the validity of Article 20 of the EU Tobacco Products Directive (TPD) at the Court of Justice of the EU.

Totally Wicked is the only electronic cigarette manufacturer to challenge this Directive which will bring e-cigarettes and e-liquid within its regulatory scope as a “tobacco related product” – despite not containing tobacco – and subject e-cigarettes to more stringent regulation than some tobacco products.

Totally Wicked’s Council argued that Article 20 was a disproportionate impediment to the free movement of goods and the free provision of services, placed electronic cigarettes at an unjustified competitive disadvantage to tobacco products, failed to comply with the general EU principle of equality, and breached the fundamental rights of electronic cigarette manufacturers.

Importantly, Article 20 will also have a devastating impact of vapers who would be denied:

  • Access to e-liquid in bottles larger than 10ml,
  • Access to e-cigarettes with tanks larger than 2ml,
  • Access to advertising and other relevant and important information, and
  • The ability to purchase e-cigarettes and e-liquids online.

Furthermore, due to significant testing costs, imposed on companies by the TPD, vapers will have to pay more for their products and will be faced with a more limited range of e-cigarettes and e-liquids.  Some currently available refillable e-cigarettes will even be banned.

Totally Wicked’s challenge was contested in court by the Spanish, French, and UK governments, as well as the European Commission, Parliament, and Council.   All argued that the Article 20 was a proportionate approach to what they believe to be the threats posed by vaping: gateway to smoking, normalisation of smoking behaviour, and a risk to young children who may ingest e-liquid.  All of these concerns have been debated, examined, and tested over many years and independent credible experts have all dismissed them as being without foundation.

The Advocate General, who listened to the hearing, will publish her opinion on the 17th of December 2015 with the final ruling expected in the New Year.

Fraser Cropper, the Managing Director of Totally Wicked said:

“Yesterday was a truly historic day in the history of vaping.  It was the culmination of a battle that has lasted more than two years.  A battle between those who recognise the public health potential vaping offers and therefore wish to see vaping flourish under a robust yet proportionate consumer regulatory, and those who either do not understand vaping or see it as a threat to established interests and therefore wish to see e-cigarettes subjected to a disproportionate and inappropriate regulatory regime.

It was disappointing to hear so many old and tired arguments in defence of Article 20; arguments that I thought had been put to bed some time ago.  I hope that the Advocate General and the Judges will look beyond this and make a decision based on the points of law as articulated by our Council.  If they do then I firmly believe that they will rule that Article 20 is invalid.

Since launching our legal challenge last year I have been heartened and encouraged by the strength of support shown from the wider industry, but importantly, from tens of thousands of vapers the length and breadth of Europe.  This was exemplified by a couple from Bournemouth who drove all the way to Luxembourg to support our legal challenge.  I would just like to put on record my heartfelt thanks to all those who have supported us.”