In August, Totally Wicked obtained permission from the UK's Administrative Court to bring a judicial review action after issuing court proceedings against the Secretary of State for Health, which asked the UK court to refer the lawfulness of Article 20 for a "preliminary ruling" by the Court of Justice of the CJEU in Luxembourg.
This week, in a four-minute hearing at the Royal Courts of Justice, Mr Justice Green decided that a "preliminary ruling" reference should be made.
In December 2012 the European Commission brought forward proposals to amend the TPD. These proposals sought to bring electronic cigarettes within the scope of the Directive for the first time. Final agreement on the amended TPD was reached between the European Commission, Parliament and Council in March 2014. Member States have until May 2016 to implement the TPD. Article 20 of the TPD deals specifically with the regulation of electronic cigarettes.
The TPD will impact on over 2.1million UK vapers and the booming businesses created to service this exponential market. Totally Wicked has grown to employ one hundred and fifty people in its home town of Blackburn, Lancashire.
Article 20 is said to address concerns about e-cigarettes that have no solid scientific basis. Indeed, much of the current scientific evidence suggests that e-cigarettes are beneficial and it would be detrimental to prevent their continued general sale availability.
Susan Garrett, the Partner leading the team at Addleshaw Goddard LLP said:
"Totally Wicked believes that the Tobacco Products Directive is a misconceived and disproportionate attempt to regulate electronic cigarettes. Today's decision is a key milestone for our client, given the impact it believes the Directive will have in stifling this emerging market.”
Totally Wicked believes that the TPD Article 20 restrictions will lead to:
- Less innovation in a demanding consumer market
- Fewer suppliers in the marketplace
- A reduced product range for consumers
- Increased product costs due to over-regulation
- Electronic cigarettes will become less available than conventional tobacco cigarettes and other tobacco products
- A significant number of existing electronic cigarette users will return to smoking conventional tobacco products
- A number of future and existing tobacco cigarette smokers will not have a readily available, attractive e-cigarette alternative
Totally Wicked also contend that Article 20 is unworkable as companies within the EU will have to compete with unregulated e-Cigs produced outside the EU and also an emergent black market.
Fraser Cropper, managing director of Totally Wicked, said:
“We just want a competitive, level playing field that allows us to sell our products.”
“Not only is it disproportionate, we believe it is contrary to established EU law. For nearly 30 million people in the EU, electronic cigarettes provide a viable alternative to smoking tobacco cigarettes.”
It is expected that a hearing will take place at the CJEU in 2015. If successful, Totally Wicked will be the first European electronic cigarette manufacturer to overturn legislation at this level.
- Totally Wicked www.totallywicked-eliquid.co.uk
- The TPD http://ec.europa.eu/health/tobacco/docs/dir_201440_en.pdf