Is the EU moving against Swedish ‘snus’?

Recently the European and especially the Swedish media have published several articles concerning the possible updating of the Tobacco Products Directive (2001/37/EC) (TPD). One is the article by Anders Bollinger published in the Swedish newspaper Dagens nyheter on 19 April entitled Nytt EU-förslag oroar snusfabrikanter (in English: New EU proposal worries snus producers). There is a heated discussion in Sweden on how this would affect the Swedish ‘snus’ industry. Aggressions and fears for a total ban on snus have escalated. Snus, a moist powder tobacco product consumed by placing it under the lip, is banned in all member states except in Sweden. An article by Larry Waters published on the website SnusCENTRAL.org claims that “a confidential document from the EU Commission’s Health Directorate leaked today has all of Sweden in an uproar”.

The previous Tobacco Products Directive was adopted in 1992, before the accession of Sweden to the EU, and aimed at ensuring a high level of protection of public health. The Swedish people have been allowed to manufacture and use snus and to bring it abroad for private use on the basis of an exception contained in the Act of Accession, on the condition that Sweden shall preclude that snus would be placed on the market in the other states of the Union. In the 1990s only a narrow majority of Swedes supported their country’s accession to the EU and there was a strong request to be excluded from the snus ban. Sweden received a permanent exception, stated in Article 151 in the Act of Accession of Austria, Finland and Sweden, and it resulted in a discussion whether snus shall be equally regulated as other tobacco products. It would be in Sweden’s interest, in order to comply with the idea of the internal market and the free movement and competition law. However, other member states have not been supportive of the idea of lifting the snus ban within the EU.

In 2010 the Commission started a public consultation on the problem, and asked national governments, members of the European parliament, NGOs, industry representatives and European citizens if they agree on the status quo or an extension of the current TPD is needed. The incoming answers has been summarised in A Report issued in July 2011. This public consultation hit a record. Normally the Commission receives around 100 answers, but this time 85 000 opinions arrived. The feedback was asked in these following areas: the scope of the directive, smokeless tobacco (including snus), consumer information, reporting and registration of ingredients, regulation of products and the access to tobacco products.  The opinions did not come only from Sweden. A large amount of the answers were received from Italy and Poland, but also from all of the Union. This clearly shows that it is a sensitive topic creating huge interest. The discussion tries to balance the health aspect and the financial one.

The Report of the Commission shows that very few member states want an extension of the current directive concerning the proposed ban of some special ingredients used in tobacco products. Some argued that these ingredients are a necessary part of the production. A number of them stated that the ban of certain ingredients would be an indirect discrimination of some trademarks. In Sweden’s particular case this concerns the snus production. According to the Swedish minister of trade the updating of the current legislation should regulate general rules on tobacco, not one regulation on cigarettes and one on other products, but a common regulation for all tobacco products.

On the basis of the debate around the use of snus, the best solution may be to extend the regulation on how and where the use of tobacco is allowed and not to prohibit specific ingredients. The purpose of proposal is not an explicit ban on snus, it is to prohibit certain ingredients (namely all flavours) in tobacco products. However, as MEP Christian Fjellner said, “it would mean the end of Swedish snus”. It would be an “indirect ban”, since most of the snus produced in Sweden contain those ingredients.

However, it is important to point out, that at the moment of its accession to the EU Sweden received a permanent exception. It means that the modifications of the Directive should not affect Sweden’s exception and the snus industry can continue to produce and sell its products in Sweden. Article 151 of the Act of Accession will still be in force, and Sweden will be allowed to market snus even in the future. Furthermore, nothing has been stated by the Commission as final. The amendment of the TPD is still under consideration. The whole discussion is based on a leak. We have to ask ourselves whether this source is reliable or not.

From a Swedish point of view it is difficult to understand why there should be a ban on snus when cigarettes are permitted in all member states. Cigarettes are in the Swedish view, more harmful than snus, because of the smoke pollution (not emitted by the use of snus). On the basis of the directive member states shall work for a good relation as regards the manufacturing and selling of tobacco products and are allowed and supported to go further in the regulation of this field. Sweden was among the first states which regulated where and how tobacco could be used. Even with the use of snus, health problems related to tobacco is not higher in Sweden than in any other member state.

The Swedish government has always been of the opinion that the snus ban should be lifted in the EU. This will clearly never happen, since it would be a step back for the Union´s tobacco policy and health regulation. However, Sweden should have the right to demand a general regulation on all tobacco products and not only snus or other special products, because of health. A total ban of snus will not improve health issues more than a general stricter regulation. Sweden has received a permanent exception, stated in the Act of Accession, accordingly, this exception concerning snus shall be maintained.

by Amelie Edgren, Stina Haglund and Lina Olsson

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Örebro Universitet (Sweden)
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5 Responses to Is the EU moving against Swedish ‘snus’?

  1. Sebastian says:

    This is an issue of current discussion, first and foremost, in Sweden. The discussion in the classroom during the seminar even showed this when different opinions where expressed whether snus is a danger to ones health or not. In this area there are diversity even between the Swedes. It is always interesting to connect issues discussed in the classroom to things that happens in the actual world. An example is last weeks episode of the TV-show “Betnér direkt” where they discussed public health. They talked, of course, of snus and the Swedish Minister of Health and Social affairs, Göran Hägglund, expressed that he will do what he can to not let EU decide about Swedish snus (http://www.kanal5play.se/program/343001#!/play/program/343001/video/2778448|/program/343001/video/2778448 around 14 mins).

    I think it is good that you reiterate that Sweden got a permanent exception and I agree with you that this should be upheld. I am not snus-ing myself but as far as I have heard, and as is also stated on the warning labels on the box, snus might affect ones health in contrast with cigarettes where the warning labels basically say that cigarettes will kill you.

    One thing that I think is important to consider when talking about snus is the comparison with cigarettes, alcohol and the free movement of goods. As we disagreed upon, the might or there might not be reports and research if snus is actually dangerous to ones health. However, both alcohol and especially cigarettes are. Still, people are criticising Sweden’s retail monopoly on alcohol and say that it is a breach of free movement of goods. If snus is equally affecting ones health as alcohol as well as have less effect on ones health than cigarettes, shouldn’t Sweden be allowed to export snus to other member states?

    I think we should.

  2. Airton Valente Jr. says:

    Considering that there is a permanent exception concerning to the use of snus in favor of Sweden since the Act of Accession, the revision of the Directive (2001/37/EC) by the European Commission, especially on the matter of regulating substances and banning the use of oral tobacco, could bring a sort of political and legal discomfort. Political because the majority of population in Sweden, which voted to the entry of the Country into the European Union, only accepted it if the use of snus would be allowed, and legal because the Directive is a binding rule which could conflict with the permanent exception. Even though this conflict could be solved by rules of application law and law principles, it will bring the matter into discussion and that seems to dislike tobacco´s industry and huge part of the Swedish people.
    The Directive should be revised, especially to adapt to the new circumstances, but not on fields where could affect the perfect juridical act and the acquired right. It has to be borne in mind that changes should bring more stability and benefits than issues and struggles, and mostly has to be made on a legal basis and also respecting law.
    Another issue to be considered is if snus should be treated separately from cigarettes. On other words, if there should be one regulation to cigarettes and another to all tobacco´s products. I believe that if it will be treated as a cigarette then it will bring more questions and issues that, maybe, will not be easy to deal with, such as the right to commercialize snus in other member states and so on. On the other hand, if snus will be treated as a cigarette all the restrictions, measures and regulations applicable to it will be applied to snus, what could not be interesting to the snus itself. However, if it will be treated as a ‘special’ and different product, it seems to me that should be left to the Swedish government to decide how to treat the product, since it is only allowed in its jurisdiction and under Swedish law.
    Until now all the discussion is based on rumor, once no final decision on this matter has been taken by the Commission. However, this is the kind of discussion that has to be taken carefully in order to avoid any kind of discrimination, violation of individuals´ and member state´s rights and, at same time, achieve the main goal – health of EU citizens.

  3. Samiya says:

    The first legislation concerning tobacco was adopted in 1992, before Sweden entered the EU. In 95’ when Sweden joined the Union they made some reservations against this regulation which meant that they could manufacture, use and sale snus abroad. Snus is a part of the Swedish culture; it’s like banning a deep rooted tradition from one of the other states. There is no question about whether snus is dangers or not, studies have shown that the using can in many cases led to serious health issues. The different between snus and other tobacco and alcohol is that snus is exceptional for Sweden, while tobacco and alcohol occur in most of the other stats.
    There is a pending review going on of the EU Tobacco Products Directive (TPD). This regulation could lead to the fact that the Swedish snus gets banned. In 95’,when entering the Union, Sweden had made some reservation against the legislation on tobacco which also involved the snus, the union at that time accepted Sweden’s exceptions. In this review EU have three clear alternatives; one is if they should ban the shipment of Swedish snus within the EU, the other is allowing shipment of snus from Sweden, and the last alternative is if the union should just leave the regulations as it is at moment. I personally believe that the permanent exceptions, which EU accepted, should be valid and that Sweden shouldn’t be affected by the new modifications of the directive. It’s important that states can make reservations to maintain their independence and it’s also important that new EU modifications don’t impinge on old agreements, such as the snus matter!
    When reading this article I immediately think about of two things – state sovereignty and free trade. One of the questions in this review is whether the shipping of snus should be banned or not, this could actually result in that Sweden loses their right to trade with this specific product. Snus is clearly related to serious health issues, both so is alcohol and cigarettes, to actually ban the shipping would contrary to one of the core concepts of EU. Another thought is the sovereignty of states and the autonomous power of EU, snus is a deep rooted tradition in the Swedish community and to ban it would affect many people. EU is a supernational organization which have binding legislation – but how far could their authority go without getting to far in into the privacy matters of others, because I’m sure that snus is an accolent matter for many Swedes

  4. Pingback: Announcement #1: Conferences in September (Paris and Budapest) | EU Constitutional Law | Örebro universitet

  5. Pingback: Reading suggestion #4: The debate on Swedish snus continues | EU Constitutional Law | Örebro universitet

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