Some countries have no specific control on e-cigarettes, while others implement a series of bans: in such a fragmented landscape, every action taken by public authorities can affect the way consumers approach e-cigarettes.
At the same time, the growing misinformation and the wrong perception of the relative risks among people can influence the choices of public authorities.
In a recently published paper, “Health protection, public policies for smoking cessation and regulation of electronic cigarettes in Brazil and the UK: a study of comparative public law”, by Costanza Nicolosi, expert in the economics of legal regulation and Ph.D. in law, the author analyzes the legal approach taken by two countries, UK and Brazil, in e-cigarettes’ regulation, marketing, and production.
The paper’s objective is twofold. First it assesses the constitutional right to health (in general, as well as with reference to the two countries under study Brazil and the UK) and the administrative models of e-cigarettes’ regulation (again in general, and with specific reference to the study countries.
Afterwards, it provides a critical assessment of the two legal principles behind the different models of e-cigarette’s regulation, meaning the principle of harm reduction and the precautionary principle.
The analysis highlights many legal issues, as well as psychological and social ones, behind the application of the precautionary principle.
The analysis shows that the regulation of e-cigarettes is an area in which -more than ever- one can see the tension between guaranteeing fundamental freedoms (including self-determination) and the strengthening of a paternalistic “nanny state” compressing individual liberties in the name of a generic and ill-defined common good.
First of all, it is not easy to assess the definition of health: the definition captures the full dimensions of the state of health, it is probably too broad a definition for government policy makers. For instance, there is no consensus on what type and amount of health care services constitute adequate care.
Even though the right to health is acknowledged as a fundamental right in many countries, great differences exist not as much as in the formal wording of the Constitutional provisions, as in its actual enforcement and availability, which vary according to many factors, including: economic resources and the degree of democratic maturity.
The precautionary principle and harm reduction: the principles behind e-cigarettes’ regulations
When analyzing the different options for regulating the e-cigarette market, there are two kinds of approach: on one side, some countries prefer to ban cigarette and low risk products because they believe that e-cigarettes are harmful, normalize smoking behavior, and serve as a gateway to nicotine addiction for non-smokers and youth.
On the other side, some states aim at incentivizing policies that reduce the more harmful toxicological effects of smoking traditional tobacco cigarettes.
These two approaches mirror different social preferences and views of the tradeoff between state control and individual freedoms (for example, let’s consider a paternalistic approach by a state vs. individual’s self-determination), as well as general attitudes towards addiction.
One of the main differences between these choices, is the population considered: on one side, health protection is focused on the relative risk of cigarette for non-smokers, on the other side, the harm reduction principle aims to help the people affected by conventional tobacco smoke.
As a consequence, many different approaches have been generated for regulating e-cigarettes, ranging from banning nicotine delivery systems to including the harm reduction principle inside the national law.
As highlighted in the paper, there are seven ways governments can regulate e-cigarettes:
- Prohibition: it is usually implemented by banning the manufacture, export, import, sale and/or possession of e-cigarettes.
- Regulation as medicinal products: this approach involves blocking all legal access to e-cigarettes except for use as smoking-cessation therapy and it is motivated by a desire to strictly limit e-cigarettes to those who will use them to quit smoking, rather than for recreational purposes.
- Component ban: it translates in banning for example liquids containing nicotine or setting products standards. The most notable disadvantage of an e-cigarette component ban is that regulating the nicotine content of e-liquids, either by placing restrictions or banning nicotine-containing e-liquids entirely, may encourage current tobacco smokers to continue using conventional cigarettes.
- Regulation as poisons or hazardous substances: it includes banning nicotine-containing e-cigarettes or placing restrictions on nicotine concentrations in e-liquids.
- Regulation as tobacco products: it is based on the idea that nicotine is derived from tobacco. Under this approach, e-cigarettes would be available for purchase in the same manner and in the same places as conventional tobacco cigarettes.
- Regulations as consumer products: it includes e-cigarettes within existing legislation promoting consumer protection (creation of quality control standards or post market surveillance).
- Regulation as unique products: it classifies e-cigarettes as a unique product, enabling government policymakers to create new ad hoc legislation that pertains specifically to e-cigarettes.
In the two study cases analyzed, the author noted two opposite approaches. In UK, there are two post-Brexit sets of regulations (in 2019 and 2020) amending the national law transposing the European Tobacco Product Directive.
Great Britain implemented an ad hoc regulation for e-cigarettes setting out requirements that cover product standards including: safety, labelling, packaging, notification advertising, and annual reporting. So far, there is no restricted law on the use of e-cigarettes in public places.
In Brazil, the authorization of sales and imports of any electronic smoking device is subject to confirmatory epidemiological and toxicological studies. Brazil also bans e-cigarettes’ advertising at the national level.
As noticed in other strict regulatory environments, such bans can lead to the creation of an illicit trade of e-cigarettes: indeed, recent studies suggest that use of e-cigarettes does exist in Brazil, though such market is mostly illicit.
“The analysis shows that regulation of e-cigarettes’is an area in which -more than ever- one can see the tension between guaranteeing fundamental freedoms (including self-determination) and the strengthening of a paternalistic “nanny state” compressing individual liberties in the name of a generic and ill-defined common good” stated Costanza Nicolosi, author of the paper.