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A timeline: release of the revised Tobacco Products Directive 

After almost three months or turmoil in the EU tobacco control and health political community, it seems that the much awaited Tobacco Products Directive will soon be released.

Why is this piece of legislation important for people concerned with COPD? Tobacco is the most important risk factor for COPD and one that the EU can act upon. The TPD regulates the manufacture, presentation and sale of tobacco products in the EU Member states. Not that many actions, policies and laws help prevent the disease or care for COPD patients, especially in these times of economic crisis, when the European Council (all EU Member States together) proposes to cut in two the research budget put forward by the European Commission.

TPD is a major tool of prevention of COPD and other tobacco-related diseases, but its revised version has been delayed for over a year now. It was meant to enhance the 2001 original Directive and to contain stronger provisions, to dissuade people from taking smoking and to encourage smokers to quit….It has come a long way:

The start: over 85,000 answers are sent to the 2010 EU public consultation, significantly delaying legislation

The European Commission initiated a public online consultation for the revision of Directive 2001/37/EC on tobacco products[1] and received the record number of 85,513 answers. Analysis of the latter indicates that they came from tobacco firms and their allies, in a move to delay the legislative process and cause stagnation of the review development. The findings of the consultation were published in an August 2011report. The revision of the Directive was then announced for the end of 2011 and then postponed to early 2012.

Two years of hard lobbying

Since the consultation, both tobacco control advocates and tobacco supporters, be them producers, cigarette/cigar makers, retailers,traders, wholesalers or trade-unions held numerous events, sent reports, letters and petitions to the concerned people in the Directorate General for Health and Consumers (DG SANCO) of the European Commission, to provide information, figures and opinions, to the drafters of the Directive. It was clear that the issues at stake were much larger than “simply” public health, but rather one that affects agriculture, trade (worldwide), marketing and advertising, employment and taxations, to name just a few (image from UNITAB, the European Association of Tobacco Growers).

The tobacco control community, helped by successful experiences coming from leading countries in the fight against tobacco provided evidence that:

  • standardised cigarette packs, no branding, no logo,
  • standardised shape, colour and method of opening the packet,
  • large pictorial and health warnings, front and back of pack,
  • standardised font colour and size for brand name,
  • legislating on additives and flavouring of tobacco products,
  • tobacco products under the counter in tobacco retailers,
  • increase of tax on tobacco products,
  • maintaining the status quo on snus, a tobacco to chew (smokeless product).

were all measures that work to prevent taking up smoking or/and to quit smoking.

The tobacco companies and their allies got the ear of the European Commission as it appears in the reply to the 154 questions the Members of the European Parliament (MEPs) sent to the EC and the EU anti-fraud agency after the October 2012 events (see below) [2].

Their arguments against the proposed measures played with fear triggered by claims of massive job losses, increase of counterfeited products and illicit trade that would in turn affect state and companies’ revenues, and smokers’ health. More support to smokeless tobacco, such as the e-cigarettes and the Swedish snus appeared in the press and political debates as means to help quit smoking and to protect from second-hand smoking. All arguments have been objected by tobacco control experts [3] but did delay the drafting of the Directive.

The piece of legislation was supposed to be released by the end of February 2012, but on the 23 of the month, DG SANCO announced that it was postponed until after the summer. No specific explanation for the delay was provided other than trying to make the Directive as legal and robust as necessary.

When suspicions of conspiracy come into the picture

Between February and the end of summer 2012, the mandatory impact assessment of the legislation is run[4], and as fear grew among tobacco control advocates that there will not be enough time for this European Parliament and Commission whose mandates end in spring 2014 to legislate fully on the issue, the European Commission for Health, Maltese John Dalli unexpectedly resigned.

On 16 October, a press release from the European Commission announces that Dalli was no more Commissioner for Health and without a political leader, the process of releasing the TPD was stopped.

The European Commission revealed that upon the request of Swedish Match a tobacco company based in Sweden and producing snus, OLAF, the anti-fraud EU agency was mandated to investigate about suspicions of a potential attempt of corruption. The agency provided EC President, José Manuel Barroso with a report on 15 October, stating that  John Dalli was aware of this attempt. The report claimed certain “unambiguous circumstantial evidence” that John Dalli was presumably aware of the bribe attempt and did not report the alleged approach.

“[OLAF] found that [a] Maltese entrepreneur had approached the company using his contacts with Mr Dalli and sought to gain financial advantages in exchange for influence over a possible future legislative proposal on snus. No transaction was concluded between the company and the entrepreneur and no payment was made. The OLAF report did not find any conclusive evidence of the direct participation of Mr Dalli but did consider that he was aware of these events [5]”.  According to the report, the decision making process related to the TPD was not influenced.

The press revealed in the days following the resignation that the Maltese businessman is Silvio Zammit, a former colleague of Dalli in his political party who allegedly put forward his relations with the Commissioner, and offered the company direct access to Dalli, to convince him to lift the EU ban on snus (the ban is not applicable to Sweden) against 60 million Euro.

Mr Dalli categorically rejected the findings, told the media he did not have access to the OLAF report, that he was forced to resign and that he would take legal action to defend himself. The case is now in the hands of the Maltese justice.

Following Dalli’s resignation, SFP, the Smoke Free Partnership, ERS,  the European Respiratory Society and EPHA, the European Public Health Alliance, tobacco control not-for-profit organisations published press releases asking EU decision makers to continue the process of releasing TPD. During the night of 17/18 October, their offices located in the same building were broken in and laptops and files containing key information stolen, despite the high quality office alarm system. The robbery was professionally performed leaving no evidence behind. The coincidence of dates was noted by everyone.

Suspicions then dominated the EU health related debates:  of an attempt to corrupt on the part of a Maltese businessman, of tricking Dalli to force him to resign, on the part of the tobacco industry, of breaking in tobacco control associations’ office to threaten them.

While the TPD, John Dalli, DG SANCO and probably the whole EU Commission emerge as the losers of this ‘situation’, the prime winner seems Swedish Match and the tobacco companies’ trade union, ESTOC.  One may therefore legitimately wonder what has been the exact role played by the company in the birth of the professional relationship between the Maltese entrepreneur and the company.

In the meantime, the TPD is going nowhere….

The political scandal unexpected positive outcome

The extent of the taking up of the issue by the media, Members of the European Parliaments (MEPs), health advocates, transparency, and democracy supporters revealed the issue was beyond one of the traditional EU political arena. The methods used to reach policy makers and the public at large by the tobacco firms were exposed to the views and ears of millions. The pro-transparency advocates have brought to the attention of all that the Commission consulted the tobacco industry on numerous instances and furthermore, that some former DG SANCO staff now work for tobacco companies.[6]

Corporate Europe Observatory (CEO), ALTER EU, EPHA and others have helped making public exchange of mails, letters and official transcriptions of DG SANCO and EC Secretariat General’s meetings with the tobacco industry and allies, via the Ask the EU website[7].

MEPs sent no less than 154 written questions to the European Commission and OLAF (both have the obligation to answer the questions in a certain timeframe), the chair of the Health & Environment Committee publicly raised his concerns and questions over the issue and the political groups have asked parliament President Martin Schulz to “insist” on “full access” to a report by OLAF, on why the former health Commissioner lost his job. But Commission chief Jose Manuel Barroso, in a letter to Schulz on 30 October, said he is legally bound to withhold the file. The latter is now being legally challenged.

The resignation of John Dalli put the European Commission in a position where it had to publically and loudly provide evidence that it acts ethically and in all fairness when conducting policy drafting, and when dealing with potential influencers. Ironically, the situation forced the European Commission to accelerate a process that was otherwise blocked, for reasons still unknown, at its Secretariat General. With fingers all pointing at the latter, and no public justification to delay the release of the reviewed TPD, Dalli’s resignation served as a revealer of malpractice that only tobacco control advocates, some specialised press, and experts were reporting. Maybe not something Barroso anticipated when he called Dalli in his office on the 16th of October…

Appointment of new Health Commissioner

In the days following the resignation of John Dalli, Malta announced that its next EU candidate Commissioner would be Dr. Tonio Borg, Deputy Leader of the conservative party, Deputy Prime Minister, Minister of Foreign Affairs and  Member of the Maltese Parliament.

Borg’s political views have been described as Catholic conservative. He had proposed to entrench into the Maltese Constitution the sections of the law banning abortion (a criminal offence in Malta). In Parliament, he voted against the introduction of a divorce law, despite it being upheld in a consultative referendum. Borg also spoke out in 2009 against including cohabiting couples (either heterosexual or homosexual) as beneficiaries to legislation enacted around the time of the Second World War intended to protect tenants during the housing shortage of the time. Borg’s nomination was the cause of some controversy due to his political views and he was subject to some tough questioning during his hearing by the Members of the European Parliament. However, the European Parliament voted in favour of his appointment on the 21st November and he was nominated EU Commissioner for Health and Consumer by the President Barroso after the European Council also approved him as Commissioner. He took his post on 3 December 2012 and immediately declared the start of the inter-service consultation (ISC) for the TPD.

The European Commission announced that the ISC was completed in 12 days (quite unusual short time) and that it would adopt its proposal to revise the TPD on 19 December.

Next: the adoption of the new TPD

Although the tobacco control community warmly welcomes the release of the new Tobacco Products Directive, the very late launch of the legislation will make it almost impossible to complete the adoption process by the present European Parliament and European Commission whose terms end in the spring 2014. Experience shows that elections and changes occurring during the debates on a Directive almost systematically water it down. Let’s all make sure that the story will have a happy end and positive outcomes for all that suffer from tobacco, and for the society as a whole. It starts (again) now.

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17 December 2012

 


[1]  Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products

[2] http://www.ehrenhauser.at/assets/FINAL_COM-and-OLAF-reply-to-questionnaire-30-NOV-fin.pdf

[3] See for instance, Luk Joossens’ report « smuggling the tobacco industry and plain pack »,http://www.cancerresearchuk.org/prod_consump/groups/cr_common/@nre/@pol/documents/generalcontent/smuggling_fullreport.pdfand from the US Tobacco Free Kids Organisation: http://www.tobaccofreekids.org/research/factsheets/pdf/0227.pdf

[4] Before the European Commission proposes new initiatives it assesses the potential economic, social and environmental consequences that they may have. Impact assessment is a set of logical steps which helps the Commission to do this. It is a process that prepares evidence for political decision-makers on the advantages and disadvantages of possible policy options by assessing their potential impact.

[5] http://europa.eu/rapid/press-release_MEMO-12-788_en.htm

[6] http://corporateeurope.org/blog/revealed-revolving-door-facilitates-tobacco-lobby-meetings

[7] http://www.asktheeu.org/en/request/ec_secretariat_general_contacts