Totally Wicked vs. EU

Posted 16th September 2014 by
Blackburn-based electronic cigarette company "Totally Wicked", the largest in the UK, became the first manufacturer to challenge European Tobacco Products Directive. In its announcement, on the 20th August 2014, it stated that changes to the European Tobacco Products Directive would place electronic cigarettes at a competitive disadvantage to the traditional tobacco market.

The European Commission brought forward proposals in 2012 to amend the Tobacco Products Directive (also known as the TPD). The proposals aim to bring electronic cigarettes under the Directive for the first time.  Totally Wicked contend that Article 20 of the Directive breaches EU law.

They claim that Article 20:

  • Places a disproportionate impediment to the free movement of goods.
  • Places a disproportionate impediment to the free provision of services.
  • Places electronic cigarettes at an unjustified competitive disadvantage to tobacco products.
  • Fails to comply with the general EU principle of equality.
  • Breaches the fundamental rights of electronic cigarette manufacturers.

Final agreement on the amended Tobacco Products Directive was reached between the European Commission, European Parliament and European Council in December 2013.  The UK has until May 2016 to implement the Tobacco Products Directive.

Fraser Cropper, Managing Director of Totally Wicked, said: "Many of the regulations contained within Article 20 of the Tobacco Products Directive would result is electronic cigarettes being subjected to a stricter regulatory regime than some tobacco products.  Not only is Article 20 therefore disproportionate, we believe it is also contrary to EU law.  It is for these reasons that we have taken the significant step to challenge the Directive in the courts and we are delighted with the progress made to date.”

"For the sake of electronic cigarette users and potential users, it is vital that our industry is allowed to mature within a proportionate regulatory framework, which supports appropriate controls and safety requirements, and necessary social responsibility and continues to provide consumer choice to maximise the enormous potential of these products.  Article 20 of this Directive patently will not deliver this environment."

The company have been given permission from the UK Administrative Court to bring a judicial review action, obtained after issuing court proceedings against the Secretary of State for Health...who, in turn, has accepted that it would be appropriate for the matter to be referred to the Court of Justice of the EU.

What happens now?

  • A hearing will take place on the 6th of October 2014.
  • An Administrative Court judge will determine whether the matter ought to be referred to the Court of Justice of the EU.
  • If so, the judge will decide what questions need answering.
  • If the matter is referred to Court of Justice of the EU, the hearing will take place in 2015 to assess whether Article 20 breaches EU law.