Following today's vote on new EU tobacco rules in the European Parliament, a wave of jubilation from the so-called ‘vapers' spread across the Twittersphere.
These enthusiasts of new electronic cigarettes have been working tirelessly to convince MEPs to block a European Commission proposal to regulate the new contraptions as medicines for the purposes of market approval.
Today they got their wish. Members of the European Parliament voted 350-300 to instead classify the cigarettes as tobacco, even though they in fact do not contain any tobacco.
The cigarettes deliver nicotine electronically, without the smoke or tobacco responsible for most adverse health effects from smoking. The vapers had argued that the bureaucracy involved in getting a medicine to market would be too much for the small companies getting started in this sector and kill the industry. Some health advocates agreed with them.
But it all depends on how you see these devices. Many other health campaigners are concerned that the prospect of a ‘less harmful' way to take in nicotine could actually attract more new smokers than it helps old smokers quit. The Commission and many EU governments share this concern.
These new devices are currently largely unregulated, so they had to be brought into the European regulatory framework somehow. The Commission decided the best way to do this was to classify any e-cigarette with more than 4mg per millilitre of nicotine as a medicine.
National governments backed this approach when health ministers voted on the proposal in June. In fact, they lowered the threshold to 1mg/ml, making the medicine classification even more strict.
So the vapers' celebration is premature. As often happens when the occasional high-profile vote comes to the European Parliament, national media have largely reported this as if it now becomes law. But this proposal must be approved by both the Parliament and the Council of Ministers, which is made up of the national governments. And national governments are intent on regulating e-cigarettes as medicines.
The process works much like the US congress – the two institutions each draft their own versions of the legislation and these are then reconciled into one in conference, a process known in the EU as a ‘trilogue' because it involved the oversight of the Commission.
The position adopted by the Parliament today is very similar to the position adopted by the Council in June, with one major exception: e-cigarettes. The two institutions have adopted polar opposite positions on this subject and it is likely to become the major fight during negotiations. And as we here in the Brussels press corps know well, in these kinds of fights it is almost always the Council who wins.
That being said, health ministers have surely been watching the huge public attention focused on the issue in the Parliament. You might think this would pressure them into following suit. But the Council isn't your average legislature.
The problem is that its very hard to hold the Council of Ministers to account in the same way that the public can hold the European Parliament to account. Parliament votes are big public affairs. Council decisions by member state governments are notoriously secretive and are almost never responsive to the public opinion of Europeans as a whole. Each government is usually only interested in the public opinion at home. And even that is easy to manipulate.
A health minister who doesn't want to deal with the headache and potential risk of regulating e-cigarettes as tobacco, yet doesn't want to fall afoul of public opinion at home, can easily insist in Council that they be regulated as medicines and then return home and blame the big bad EU for imposing this legislation. It happens all the time.
If the vapers want to win the war, they need to turn attention to their national governments. Since many of the most vocal ‘vaper activists' are in the UK, they should start there. The British government position is that e-cigarettes should be regulated as medicines. The UK's Medicines and Healthcare products Regulatory Agency (MHRA) has already begun the process to classify them as such, and a spokesperson said today that harm reduction “can best be achieved by the regulation of nicotine containing products, including electronic cigarettes, under the medicines framework.”
For those vapers who are in this for the long haul, I would recommend getting in touch with UK health minister Jeremy Hunt. And don't forget to tell him the vapers will be watching how the UK votes in the forthcoming negotiations in Brussels. It is all too easy for national governments to get away with duplicity in their EU policy when nobody is watching what they do in the Council of Ministers.