10.2. SR 09-08-2015 - Laserfiche WebLink

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16 Regulatory idea Likely unintended consequence Ban sales to minors There is near universal support for this. However it is worth noting that NRT is made available to people over 12 years in some jurisdictions – because young smokers also need to quit. It should not be assumed that ‘harm reduction’ should start at 18. Prohibit health claims unless regulatory approval This denies smokers real world truthful information about relative risk and may cause more smoking. It is uncontroversial that e-cigarettes are safer than smoking – the debate is over where in the range 95-100% less risky. This erects high and unnecessary regulatory barrier to truthful communication, and claim-making should be tested in the same way any consumer claim must be truthful and proportionate – not to the standard required for medicines. Regulate as a medicine E-cigarettes are not medicines – in common sense or in law. Using ill-fitting or excessive regulation designed for a different purpose would simply limit the development of competitive alternatives to cigarettes. The costs, burdens and restrictions of medicines regulation are excessive and serve little useful purpose (for example, ‘consistent dosing’ is important for medicines, but not for products where the user controls the dose). Regulate as a tobacco product Most tobacco regulation is designed to prevent, supress and control tobacco use. With e- cigarettes the public health imperative is best served by these products growing and innovating to capture market share from cigarettes – many of the tools of tobacco control applied to e- cigarettes are therefore harm-inducing and protective of cigarette sales. 4.2.1 The risk of user countermeasures to overcome poor regulation Regulators do not have a free hand. If regulation is excessive, or removes products from the market that users want, then users will revolt and legitimately subvert regulation that they perceive to be harmful to their health or welfare. It is better to avoid the development of unregulated black or grey markets and home producing by having proportionate regulation. 4.3 The current approach of key regulators is arbitrary and disproportionate It is not possible to review all regulatory developments, especially in relation to marketing, age restrictions and banning vaping in public places. This section comments on the main initiatives with respect to regulating the product itself. 4.3.1 UK approach The UK’s preferred approach was originally to regulate vapour products as medicines.54 This onerous regime applies costs, burdens and restrictions that would dramatically contract the range of products and number of suppliers, whilst acting as a barrier to innovation 55 and unlawfully forcing a non-medical consumer product into a medical definition and regulatory regime 56. After this approach was rejected in the European Union, the UK has adopted the EU ‘twin track’ approach (see below). The UK government generally has a positive outlook towards tobacco harm reduction, but as long ago as 2009, its policy-makers incorrectly assumed such developments would come through pharmaceutical innovation. It has taken several years to adjust to a different reality – a process that is not yet complete. The separate jurisdictions on England, Scotland and Wales have adopted different stances on vaping in public and other policies. 4.3.2 European Union approach The EU’s favoured approach is “twin track”: to regulate using measures designed for tobacco 54 MHRA, Press Release: 13 June 2013, UK moves towards safe and effective electronic cigarettes and other nicotine- containing products [link]. See overview page: Nicotine Containing Products [link]. 55 Bates C, Stimson S, Costs and consequences of regulating e-cigarettes as medicines, 20 September 2013 [link] 56 Bates C, Are e-cigarettes medicines? Counterfactual March 2013. [link]