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