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Letter to the Editor E-CIGARETTES AND UNFAIR COMPETITION: A RECENT RULING IN FRANCE Electronic nicotine delivery systems (ENDS) are becoming more popular. In December 2013, judges in the commercial court in Toulouse, France, issued the first ruling regarding a trade challenge between tobacconists and e-cigarette store owners. A tobacconist in a rural area sued an e-cigarette vendor, arguing that by promoting e-cigarettes (ECs) on a commercial internet website and selling them near his tobacconist shop, the vendor was in breach of the law regarding tobacco products in what can be seen as unfair commercial competition. The vendor was ordered to stop his activity. The defence counsel contests the court’s ruling and has lodged an appeal. The judges, citing article 564 of the French Tax Code, considered that the state monopoly on the sale of tobacco products, and thereby the monopoly indirectly held by tobacconists, was breached. Taxes due on tobacco products are not paid by the e-cigarette trade. This article states that: ‘Tobacco products are considered to be such products as are intended to be smoked, sniffed, chewed or sucked, when they are even partly composed of tobacco, as well as products intended to be smoked even if they do not contain tobacco, excepting only those products intended for medicinal use . . .’. This is also the definition given in article L3511-1 of the French Public Health Code. The judges argued that the promotion of ECs on the internet website and in shop windows was publicity for tobacco products (which is prohibited), as the name ‘e-cigarette’ was suggestive of smoking. In France, the status of ECs is still unclear. They were not assimilated to tobacco products because they do not contain tobacco. The French Health Authority has stated that ECs cannot be regulated as medicines if vendors do not make health claims, if the nicotine concentration in the cartridge does not exceed 10 mg and the nicotine concentration in liquid e-juice refills does not exceed 20 mg/ml. ECs are considered as freely available consumer products and may be sold legally in specialized shops as well as in tobacconist shops, but are restricted in line with the legal age for sale of tobacco products.
© 2014 Society for the Study of Addiction
To open a shop and sell ECs, no qualification and no minimal distance between a tobacconist and an e-cigarette vendor are required. In their ruling, the French judges decided to assimilate e-cigarettes to tobacco products because they resembled manufactured cigarettes. They focused only on the commercial and fiscal aspects of the law by citing the Tax Code, and also justified their ruling through the provisions of the French Public Health Code, which prohibits advertising for such products in order to protect public health. However, the judges ignored both scientific evidence and scientific uncertainties concerning the overall public health benefit of ECs [1]. This ruling may induce confusion on the status of ECs and may imply that tobacco sales are preferred to EC sales. There is an urgent need for the European Parliament to clarify the status of ECs, preferably by harmonizing European laws on this product [2–5]. Declaration of interests None. Keywords E-cigarettes, French law, legal tobacco tax, regulatory agencies, state monopoly, tobacco products, unfair competition. NICOLAS FRANCHITTO 1,2
Poisons and Substance Abuse Treatment Centre, Toulouse-Purpan University Hospital, 31059 Toulouse, France1 and Department of Forensic Medicine, Toulouse-Rangueil University Hospital, 31059 Toulouse, France2. E-mail: [email protected] References 1. Polosa R., Rodu B., Caponnetto P., Maglia M., Raciti C. A fresh look at tobacco harm reduction: the case for the electronic cigarette. Harm Reduct J 2013; 10: 19. 2. Mayor S. Governments must agree unified approach to use of e-cigarettes, report says. BMJ 2013; 346: f3537. 3. Chapman S. Should electronic cigarettes be as freely available as tobacco cigarettes? No. BMJ 2013; 346: f3840. 4. Etter J. F. Should electronic cigarettes be as freely available as tobacco? Yes. BMJ 2013; 346: f3845. 5. Benowitz N. L., Goniewicz M. L. The regulatory challenge of electronic cigarettes. JAMA 2013; 310: 685–6.
Addiction, 109, 1041
This document is a scanned copy of a printed document. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material.
Letter to the Editor E-CIGARETTES AND UNFAIR COMPETITION: A RECENT RULING IN FRANCE Electronic nicotine delivery systems (ENDS) are becoming more popular. In December 2013, judges in the commercial court in Toulouse, France, issued the first ruling regarding a trade challenge between tobacconists and e-cigarette store owners. A tobacconist in a rural area sued an e-cigarette vendor, arguing that by promoting e-cigarettes (ECs) on a commercial internet website and selling them near his tobacconist shop, the vendor was in breach of the law regarding tobacco products in what can be seen as unfair commercial competition. The vendor was ordered to stop his activity. The defence counsel contests the court’s ruling and has lodged an appeal. The judges, citing article 564 of the French Tax Code, considered that the state monopoly on the sale of tobacco products, and thereby the monopoly indirectly held by tobacconists, was breached. Taxes due on tobacco products are not paid by the e-cigarette trade. This article states that: ‘Tobacco products are considered to be such products as are intended to be smoked, sniffed, chewed or sucked, when they are even partly composed of tobacco, as well as products intended to be smoked even if they do not contain tobacco, excepting only those products intended for medicinal use . . .’. This is also the definition given in article L3511-1 of the French Public Health Code. The judges argued that the promotion of ECs on the internet website and in shop windows was publicity for tobacco products (which is prohibited), as the name ‘e-cigarette’ was suggestive of smoking. In France, the status of ECs is still unclear. They were not assimilated to tobacco products because they do not contain tobacco. The French Health Authority has stated that ECs cannot be regulated as medicines if vendors do not make health claims, if the nicotine concentration in the cartridge does not exceed 10 mg and the nicotine concentration in liquid e-juice refills does not exceed 20 mg/ml. ECs are considered as freely available consumer products and may be sold legally in specialized shops as well as in tobacconist shops, but are restricted in line with the legal age for sale of tobacco products.
© 2014 Society for the Study of Addiction
To open a shop and sell ECs, no qualification and no minimal distance between a tobacconist and an e-cigarette vendor are required. In their ruling, the French judges decided to assimilate e-cigarettes to tobacco products because they resembled manufactured cigarettes. They focused only on the commercial and fiscal aspects of the law by citing the Tax Code, and also justified their ruling through the provisions of the French Public Health Code, which prohibits advertising for such products in order to protect public health. However, the judges ignored both scientific evidence and scientific uncertainties concerning the overall public health benefit of ECs [1]. This ruling may induce confusion on the status of ECs and may imply that tobacco sales are preferred to EC sales. There is an urgent need for the European Parliament to clarify the status of ECs, preferably by harmonizing European laws on this product [2–5]. Declaration of interests None. Keywords E-cigarettes, French law, legal tobacco tax, regulatory agencies, state monopoly, tobacco products, unfair competition. NICOLAS FRANCHITTO 1,2
Poisons and Substance Abuse Treatment Centre, Toulouse-Purpan University Hospital, 31059 Toulouse, France1 and Department of Forensic Medicine, Toulouse-Rangueil University Hospital, 31059 Toulouse, France2. E-mail: [email protected] References 1. Polosa R., Rodu B., Caponnetto P., Maglia M., Raciti C. A fresh look at tobacco harm reduction: the case for the electronic cigarette. Harm Reduct J 2013; 10: 19. 2. Mayor S. Governments must agree unified approach to use of e-cigarettes, report says. BMJ 2013; 346: f3537. 3. Chapman S. Should electronic cigarettes be as freely available as tobacco cigarettes? No. BMJ 2013; 346: f3840. 4. Etter J. F. Should electronic cigarettes be as freely available as tobacco? Yes. BMJ 2013; 346: f3845. 5. Benowitz N. L., Goniewicz M. L. The regulatory challenge of electronic cigarettes. JAMA 2013; 310: 685–6.
Addiction, 109, 1041
This document is a scanned copy of a printed document. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material.
