Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products’

COM(2012) 788 final — 2012/0366 (COD)

2013/C 327/13

Rapporteur: Mr RODRÍGUEZ GARCÍA-CARO

On 15 January 2013, the European Parliament and the Council decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the

Proposal for a directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products

COM(2012) 788 final — 2012/0366 (COD).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 26 March 2013.

At its 491st plenary session, held on 10 and July 2013 (meeting of 11 July), the European Economic and Social Committee adopted the following opinion by 173 votes to 52 with 28 abstentions.

1. Assumptions

The legal basis for the European Commission's proposed legislative act is Article 114 of the Treaty on the Functioning of the European Union (TFEU) (1) . The objective of the proposed rules is therefore ostensibly to approximate the legal rules applicable to tobacco products in order to ensure the proper functioning of the internal market. Point 3.9.1 of the explanatory memorandum for the proposed directive explains that this choice of legal basis was confirmed by the Court of Justice of the European Union in relation to Directive 2001/37/EC (2) and that the same legal basis is therefore appropriate for this proposal, which seeks to achieve a high level of public health protection in relation to the risks of tobacco.

The European Economic and Social Committee (EESC) in principle welcomes this legal basis, considering it appropriate in the light of the objectives of the proposal, which the EESC fully shares, in particular that of preventing people, especially young people, from taking up smoking. Nevertheless the EESC notes that on some occasions, for example in the European Parliament's Committee on Legal Affairs, misgivings have been expressed regarding this legal basis, notably on the grounds that the objective can be sufficiently achieved by the Member States.

The EESC fully agrees with the European Commission that the right to health must take priority over all economic considerations. In that context, the EESC is strongly in favour of promoting public education and awareness-raising plans and campaigns concerning the serious health effects of smoking. Nevertheless, scepticism remains as to whether the proposed measures will help with the gradual process of quitting smoking. Thus, the Committee recommends that the measure under examination be extended to stress the importance at EU level of school-based educational and counselling strategies, to ensure that every child or young person is correctly, fully and regularly informed of the realities of smoking and its harmful effects, and of the carcinogenic effects of exposure to environmental tobacco smoke (ETS) (3) .

The Committee recognises that a considerable number of jobs will be at risk EU-wide in all sectors along the value chain of agriculture, production, packaging and retail of tobacco and related products. The EESC calls for the necessary attention to be paid to preventing these labour market risks and strongly recommends that all available forms of transitional and restructuring measures be used, in particular training schemes for workers together with scientific, technical and innovation support enabling enterprises and farms to move towards new kinds of products, in order to maintain jobs. It should be noted that tobacco cultivation contributes to rural employment. The cohesion and structural funds, regional funds and funds for research and innovation should be used effectively in Member States impacted most by this possible restructuring, particularly in the current context of economic crisis.

There is a risk that tax revenues will fall sharply, not only because of an increase in illicit trade, but also due to falling sales and prices. About EUR 100 billion in tobacco taxes are currently collected in the European Union.

There will be a sharp increase in illicit trade (i.e. smuggling and counterfeiting) by criminal networks, leading to a reduction in sales of legal tobacco, a fall in tax revenues from tobacco products, a threat to consumer safety as a result of the absence of health and quality controls and easier access to tobacco for minors. EUR 10 billion in tax receipts are lost every year in the European Union as a result of illicit trade (4) (source: OLAF). Smuggled tobacco currently accounts for 10 % of sales in the EU (5) . The EESC can only welcome the recent signature, under the WHO Framework Convention on Tobacco Control, of a protocol to eliminate illicit trade in tobacco products in which stakeholders are asked to implement effective measures to eliminate the illicit production of and trade in tobacco (6) .

The current proposal will significantly alter the conditions for market entry, competition and the necessary functioning of free trade in a legal, albeit exceptionally highly regulated product. The EESC acknowledges concerns raised in this regard by some impact assessments at EU and international level. However, the EESC also calls for consideration to be given to the benefits that can be expected, in terms of both reduced health care costs and improved public health bearing in mind that European citizens are entitled to a high level of protection of their health from the European Union, in accordance with Article 35 of the Charter of Fundamental Rights.

The grant of wide powers to the Commission to further develop essential aspects of the directive by means of delegated acts will encroach on the sovereignty of the Member States and thus breach the principle of subsidiarity. The EESC cannot accept delegated acts that go beyond what is expressly permitted in Article 290 TFEU. Furthermore, in the context of subsidiarity monitoring, eight national parliaments have given 14 votes against the Commission's proposal on the grounds that it does not comply with the principle of subsidiarity (7) .

The EESC supports the concept of risk reduction and therefore requests the Commission to provide a clear definition and an appropriate legal framework for "reduced-risk products" for which there is clear scientific evidence of reduced risk in comparison with normal cigarettes. That is particularly relevant for products that contain tobacco rather than chemical nicotine, and that are therefore subject to the directive.

2. Introduction

The EESC is fully aware of the risks that tobacco poses to public health. As mentioned in point 1 of the explanatory memorandum for the proposed directive, tobacco is the most significant cause of premature death in the EU, responsible for almost 700 000 deaths every year. In that context, the proposal focuses on laudable objectives which the EESC fully shares, such as preventing people, particularly the young, from taking up tobacco consumption, given that 70 % of smokers start before the age of 18 and 94 % before the age of 25, reinforcing the need to adopt measures in relation to children and young people (8) .

Against that background, the EESC believes that revision of the directive is absolutely essential and should be carried out without delay. In fact, it is years behind schedule, even though the Charter of Fundamental Rights of the European Union stipulates that a high level of human health protection shall be ensured in the definition and implementation of all policies and actions of the Union. It is clear that the right to health must take priority over all economic considerations. It should also be borne in mind that the level of tobacco consumption has hardly changed in countries that have adopted very strict anti-tobacco laws. That is the case, for example, in Spain, where according to the European Commission's recently-published report on smoke-free environments, the level of consumption has fallen by only two percentage points in the last three years despite the strict laws that have been adopted (9) . In addition to the measure under consideration, the EESC is therefore strongly in favour of promoting public education and awareness-raising plans and campaigns concerning the serious health effects of smoking. Those will strengthen the long-term effectiveness of the measures proposed in terms of public health, as scepticism remains as to whether these will help with the necessarily gradual process of quitting smoking.

However, the draft proposal for revision of the Tobacco Products Directive (2001/37/EC) presented by the European Commission on 19 December 2012 could have serious consequences for jobs, the economy and tax revenues in the European Union, thereby breaching other fundamental EU objectives such as full employment and economic growth (Article 3 TEU), if no accompanying measure is put into place. The tobacco sector employs almost 1.5 million people in the EU. Of those, 400 000 are farmers growing tobacco leaf, while 956 000 jobs depend on retail sales of tobacco (10) . In addition, almost EUR 100 billion in taxes on tobacco products are collected every year. The sector is also very important in terms of exports, being one of the few sectors that still have a positive balance, both at European level and in many Member States. Total exports of tobacco products from the European Union were some 55 000 tonnes in 2010. The largest amounts came from Bulgaria (13 200), Greece (11 200) and France (8 000). In addition, tobacco is an agricultural product that provides 400 000 jobs in the EU, mainly in deprived areas where there are no alternatives. Statistics from UNITAB and COPA show that 96 % of agricultural holdings devoted to tobacco are family holdings, with an average cultivated area of between 0.5 and 3 hectares (11) .

3. General observations

Three of these six areas would have a huge impact on employment and tax revenues in the Member States of the European Union. As regards labelling, packaging and ingredients, the proposal requires expanded health warnings that are out of all proportion to those that currently exist, limiting the format, taste and content of tobacco products. For example, all packs will have to include health warnings in the form of text and images covering 75 % of the packaging, to which will be added new information texts on the sides of packs (50 % of each side), in addition to the excise stamp that is required in some Member States, the text on prohibition of sale to minors and the space reserved for the new measures for the monitoring and traceability of tobacco products. In practice, that means a huge reduction in the space available to display duly registered trade marks. There will also be minimum requirements for the height and width of packs, which will mean that some types of pack will disappear. That includes the "casket" format that is very popular in certain countries, including Greece. The most popular type of pack in Portugal has also disappeared. In addition, this change in packaging, which is not based on scientific evidence, may threaten jobs in the packaging industry, which is of great importance in several European countries, including Germany, Poland, France, the United Kingdom and Austria. It is important to note that the minimum requirements for the height and width of tobacco products were not included in the public consultation or the impact assessment report. There is also a prohibition on the sale of cigarettes with characterising flavours and a new definition of "cigarillo" which conflicts with tax legislation that has been in force in the EU for just over a year (12) .

As a result, and since all packs will have the same format and all products the same flavour, price will be the only differentiating factor between brands, leading to a loss of value for the whole value chain in the sector. With price as the only competitive factor, prices will fall, leading on the one hand to a fall in income for operators in the sector and in tax receipts for governments and, on the other, to destruction of jobs in the sector.

Allowing differentiation only on the basis of price will mean, for example, that the high-quality tobacco grown in the European Union will no longer be attractive for companies that have factories in the EU, since quality will no longer be a criterion for the purchase of tobacco leaf. Contrary to what the Commission states in its impact assessment, that involves a major risk to the jobs that depend on its cultivation. The current tobacco leaf harvest in the European Union amounts to 250 000 tonnes of tobacco per year. Italy is the largest producer with 89 000 tonnes, followed by Bulgaria with 41 056, Spain with 38 400 and Greece with 24 240. This link in the chain provides employment for 400 000 people, led by Bulgaria with 110 000 people involved in tobacco cultivation, followed by Poland with 75 100 and Italy with 59 300 (13) .

Standardising format and taste could also possibly lead to an increase in tobacco smuggling. If all products end up being almost the same, it is mafias that will benefit, since it will be all too easy for them to design contraband products with the original format and taste to which consumers are accustomed, satisfying this demand through unregulated channels and without paying a cent to Member State tax authorities. In addition, the absence of any quality control of such products will severely compromise consumer safety.

According to the latest available figures, EUR 10 billion in revenues from taxes on tobacco products are lost every year as a result of illicit trade. Sales of smuggled tobacco currently account for 10 % of the EU total (14) . Therefore, the EESC cannot but welcome the signature on 12 November 2012, under the WHO Framework Convention on Tobacco Control, of a protocol on the elimination of the illicit trade in tobacco products. Negotiated by the European Commission on behalf of the Union and its Member States, it calls on stakeholders to take effective measures to eliminate the manufacturing of and illicit trade in tobacco (15) .

Besides the loss of tax revenues, the increase in illicit trade will lead to a fall in tobacco sales, which will affect the whole value chain but may hit tobacco retailers particularly hard. Almost a million jobs in the European Union depend, directly or indirectly, on retail sale of tobacco, whether through convenience stores, kiosks or specialised stores such as those in France, Italy, Spain and, very recently, Hungary, where networks of licensed tobacco and stamp outlets are regulated and controlled by the states concerned. In Greece alone, 40 000 jobs depend on retail sales of tobacco (16) .

The EESC recognises the threat that may be caused to employment in all sectors along the value chain of production, packaging and retail of tobacco and related products, and agricultural areas where no other alternatives have been developed and where CAP subsidies are no longer available. It should be noted that tobacco cultivation contributes to rural employment. The EESC calls for the requisite attention to be paid to minimising these labour market risks and strongly recommends that here all available forms of transitional and restructuring measures should be used, in particular training schemes for workers together with scientific, technical and innovation support enabling enterprises and farms to move towards new kinds of products, in order to maintain jobs. The cohesion and structural funds, regional funds and funds for research and innovation should be used effectively in Member States impacted most by this possible restructuring, particularly in the current context of economic crisis.

To sum up, the EESC recognises that the Proposal for a Directive may contain considerable risks. However, the EESC asks that the expected improvements be taken into consideration, as regards both the reduction in health expenses and the improvement of the standard of health, given that European citizens are entitled to expect from the European Union an increased level of protection of human health, in accordance with Article 35 of the Charter of Fundamental Rights.

The proposal for a directive also includes 16 delegated acts giving the European Commission the power to amend and take decisions on essential aspects of the directive, something which is expressly prohibited by Article 290 of the Treaty on the Functioning of the European Union (17) . That leaves the Council, the European Parliament and the national parliaments with almost no power over changes to key aspects of the directive.

4. Specific comments

The measures set out in the proposal for a directive are highly restrictive and are based on criteria aimed at reducing the "attractiveness" of tobacco in order to achieve their health objectives. Furthermore, the EESC draws attention to the necessity of implementing plans and educational campaigns aimed specifically at young people in Europe. In this respect, it is important to note that the European Commission's own estimate as to the health effects of its measures may appear extremely unambitious (2 %). This progressiveness will nevertheless prevent the causing of severe, and therefore potentially disproportionate, economic harm.

The inclusion of health warnings covering 75 % of both faces of the pack, together with the new information texts covering 50 % of the sides (Article 9), are not based on definitive scientific evidence. While a study by Hammond (18) has shown such warnings to be effective, other studies, such as those carried out by the University of Maastricht (19) and the US FDA (20) have shown the contrary, namely that pictorial health warnings are not effective in reducing the number of smokers. In this context, according to the European Commission's own Eurobarometer (21) , nine out of ten smokers admit that large warnings do not encourage them to stop smoking and seven out of ten believe that this type of measure does not help reduce consumption by minors. A recent judgment of the United States Court of Appeals also concluded that there was insufficient evidence in relation to such large pictorial health warnings. It stated that there was "no evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them," adding that "the strength of the evidence is underwhelming" (22) .

the end of research and possible improvement of the quality of the products supplied. Arbitrary restrictions are being placed on bringing new-generation products to market, without allowing for a clear regulatory framework to be put in place under which the ability of such products to reduce the risk to the public could be assessed. That could also hold back the wealth- and job-creation that are linked to innovation and research in relation to these products. In addition, such new, potentially lower-risk products should not be subject to the same restrictions as are normal products.

unilateral expropriation of producers' legitimate intellectual and industrial property rights, since they will not be able to use their registered trade marks. According to the European Court of Justice (23) , manufacturers have the right to use their registered trade marks and to continue to distinguish their products;

The same applies to the restrictions on ingredients requiring the removal of characterising flavours (Article 6), which are not based on scientific evidence such as reduction of the toxicity or addictiveness of those ingredients, but on the subjective criterion of reducing the attractiveness of tobacco and on subjective stereotypes as to the type of tobacco smoked by different age groups or sexes. The same subjective approach appears in the arbitrary prohibition, without any justification, of certain formats, such as slim cigarettes (a prohibition that was not included in either the public consultation or the impact assessment report), short cigarettes and the whole category of menthol cigarettes, the setting of a minimum weight for bags of roll-your-own tobacco and the standardisation of the format of tins of tobacco and, in particular, the invention of a new category of "cigarillo" in breach of Directive 2011/64/EU (24) , which came into force on 1 January 2011. The prohibition of slim and menthol cigarettes, which are popular in several European countries, would deny consumers access to such cigarettes, requiring them to resort to the market in smuggled cigarettes in order to obtain them. Furthermore, these tobacco products are primarily consumed by adult smokers, meaning that the argument that this is designed to prevent minors from having access to tobacco does not apply in this specific case. In the particular case of menthol, for example, it should be pointed out that this type of tobacco is essentially consumed by adults and that, furthermore, it has not been prohibited by countries such as the United States and Canada that have highly developed anti-tobacco legislation containing very specific provisions on the prohibition of certain ingredients. The EESC therefore proposes that the prohibition on menthol be removed from the proposal for a directive.

In conclusion, we fully agree with the Commission's proposal to prohibit new so-called "candy-flavoured cigarettes" with flavours such as chewing gum, pina colada or mojito, which may essentially be aimed at young consumers.

Excessive restrictions on ingredients would lead to standardisation of taste, making it impossible for competitors to differentiate themselves and limiting investment and the possibility of launching new products, which will harm consumers by denying them choice.

The EESC requests that the Commission provide a clear definition and an appropriate legal framework for "reduced-risk products" for which there is clear scientific evidence of reduced risk in comparison with normal cigarettes. The concept of reduced risk relates to products that can take the place of normal cigarettes but that involve much less risk to health, rather than to smoking cessation products. Those products that contain tobacco rather than chemical nicotine, and that are therefore subject to the directive, should be clearly defined and regulated so as to make it possible to inform consumers of their characteristics.

The European Commission's proposal for a directive also includes measures aimed at reducing illicit trade in tobacco. For example, in Article 14 of the proposal, the European Commission sets out a system of monitoring and tracing, as well as various additional security measures, so that only products that comply with the provisions of the directive will be sold in the European Union. These measures will involve a disproportionate economic and administrative burden that many small and medium-sized enterprises will be unable to bear and, far from reducing illicit trade, will impose a greater administrative burden on Member States when carrying out inspections. Nor will the system reduce smuggling and illicit trade, which will, on the contrary, be encouraged by the other provisions of the proposal for a directive. The EESC therefore considers that the provisions of Article 14 of the proposal for a directive should be exactly the same as the monitoring and traceability clauses included in the Protocol on Illicit Trade agreed at the end of last year by the WHO Conference of the Parties (25) .

Finally, the directive will allow the European Commission to use a sheaf of delegated acts to adjust and amend essential aspects, such as the level of additives and the wording, size and location of health warnings. That leaves states with almost no power over changes to the directive, involving an extraordinary degree of interventionism which the European Union has rarely seen before and which breaches the principles of subsidiarity and proportionality, as the national parliaments of eight Member States (Italy, the Czech Republic, Greece, Bulgaria, Denmark, Portugal, Romania and Sweden) are already claiming (26) . The Italian parliament has not only indicated that the proposal breaches those principles, but has also emphasised that some of the types of cigarette that are to be prohibited, such as slim and low-tar cigarettes, may be useful tools of a policy whose aim is for smokers to cut back or quit (27) .

For example, Articles 8, 9 and 11 of the proposal for a directive allow the European Commission to amend the wording, design, layout, format and location of health warnings using delegated acts. Similarly, Article 6 allows the Commission to decide on the content and maximum levels of additives by way of delegated acts.

In relation to cigars, cigarillos and pipe tobacco, the proposal for a directive also provides for the automatic power to withdraw certain exemptions set out in the text if there is a "substantial change of circumstances", which is linked to an increase in sales volume of at least 10 % in at least 10 Member States, or of 5 % among smokers under the age of 25. The Commission does not realise that the market for these products in 10 of the 27 current Member States is extremely small and that a 10 % change could easily occur, meaning that this provision makes no sense and creates major legal uncertainty in this sub-sector.

Although Article 290 of the Treaty on the Functioning of the European Union provides for the delegation of powers by way of delegated acts, such acts must comply with a series of requirements. Delegated acts can only be used in relation to non-essential elements of a legislative act. That is not the case with this proposal.

(1) Article 114 TFEU reads as follows:

Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market."

(2) See case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd.

(3) OJ C 128, 18.5.2010, pp. 89-93.

(4) http://europa.eu/rapid/press-release_OLAF-11-5_en.htm?locale=EN.

(5) Nomisma, The European Tobacco Sector. An analysis of the socio-economic footprint and the Commission's own press release of 16 November 2012.

(6) Ibid.

(7) http://www.ipex.eu/IPEXL-WEB/dossier/dossier.do?code=COD&year=2012&number=0366&appLng=EN.

(8) OJ C 351, 15.11.2012, pp. 6-11.

(9) Report on the implementation of the Council Recommendation of 30 November 2009 on Smoke-free Environments.

(10) Nomisma, The European Tobacco Sector. An analysis of the socio-economic footprint.

(11) DIVTOB: Diversification for Tobacco Growing Regions in the Southern European Union. Hohenheim University. Sixth Framework Programme funded European Research and Technological Development.

(12) Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, OJ L 176, 5.7.2011, pp. 24-36.

(13) See footnote 10.

(14) See footnote 5.

(15) See footnote 5.

(16) See footnote 10.

(17) OJ C 115, 9.5.2008, p. 172

(18) Hammond D. "Health warning messages on tobacco products: a review." Tobacco Control 2011; 20:327-3. Sambrook Research International, "A review of the science base to support the development of health warnings for tobacco packages", Newport: Sambrook Research International; 2009 (report prepared for the European Commission).

(19) http://www.maastrichtuniversity.nl/web/Main/Sitewide/News1/SmokersWillNotBePutOff1.htm.

(20) Nonnemaker, J., et al., Experimental Study of Graphic Cigarette Warning Labels: Final Results Report Prepared for Center for Tobacco Products, Food and Drug Administration, Contract No. HHSF-223-2009-10135G, Dec. 2010.

(21) http://ec.europa.eu/health/tobacco/docs/eurobaro_attitudes_towards_tobacco_2012_en.pdf.

(22) RJ Reynolds Tobacco Company v Food & Drug Administration, United States Court of Appeals for the District of Columbia Circuit, August 2012.

(23) Judgment of the CJEU of 17 October 1990 in Case C-10/89.

(24) Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, OJ L 176, 5.7.2011, pp. 24-36.

(25) http://apps.who.int/gb/fctc/PDF/cop5/FCTC_COP5(1)-en.pdf.

(26) http://www.ipex.eu/IPEXL-WEB/dossier/dossier.do?code=COD&year=2012&number=0366&appLng=EN.

(27) Opinion of the Social Affairs Committee of the Italian parliament on European Commission document COM(2012) 788 final.

APPENDIX

to the Opinion of the European Economic and Social Committee

The following amendments were rejected, although they did receive at least a quarter of the votes cast:

Counter-opinion

Replace the entire text of the opinion as follows:

1. Conclusions

1.1 The legal basis for the Commission's proposed directive is Article 114 of the Treaty on the Functioning of the European Union (TFEU) (1). The objective of the proposal is to approximate the laws and other regulatory provisions applicable to the manufacture, presentation and sale of tobacco products in order to ensure the proper functioning of the internal market. Point 3.9.1 of the explanatory memorandum notes that this choice of legal basis was confirmed by the Court of Justice of the European Union in relation to Directive 2001/37/EC (2) and that the same legal basis is therefore appropriate for this proposal. The 2001 directive and this proposed revision therefore both seek to ensure the proper functioning of the internal market with a high level of public health protection in relation to the risks of tobacco.

1.2 The European Economic and Social Committee (EESC) considers that the aim of improving the functioning of the internal market warrants its strong support: it also gives the Member States an additional incentive for taking the steps that are necessary and desirable to protect human health and allows the Member States to adopt stricter measures than those contained in the proposal.

1.3 The EESC, in line with its many previous opinions on health and related topics, fully agrees with the European Commission that the right to health must take priority over all economic considerations. The EESC is therefore strongly in favour of promoting public education and awareness-raising plans and campaigns concerning the serious health effects of smoking. These should run alongside the various measures proposed here to reduce incentives for young people to start smoking and to assist those already addicted to nicotine to stop. The Committee recommends that this point be extended to stress the importance at EU level of school-based educational and counselling strategies, to ensure that every child and young person is correctly, fully and regularly informed of the realities of smoking and its harmful effects, the addictive and other health-related problems associated with nicotine, and the carcinogenic and other health effects of exposure to direct and environmental tobacco smoke (ETS) ( 3 )

1.4 The EESC also recognises that specific jobs may be at risk in agricultural areas where no alternative forms of employment have been developed and where CAP production-related tobacco subsidies are no longer available. Here, as a matter of urgency, transitional aid should be made available, together with scientific and technical support to develop alternative, equally profitable, more sustainable, more socially acceptable and less harmful crops, and, wherever possible, better quality jobs. The same applies to any other jobs at risk in the supply chain as a direct consequence of this proposal; if this is in the best interests of public health, then public support for better quality jobs is fully justified and should be encouraged.

1.5 In all cases the main benefit must, however, be taken into account – preventing the deaths and tobacco-related illnesses of managers, workers and consumers alike who already smoke and of potential smokers at all ages and from all walks of life who will, from now on, if these measures are adopted, be under less direct commercial pressure to start smoking. According to the Commission's impact assessment there will be a net benefit to the EU economy of around EUR 4 million, healthcare savings will be achieved of EUR 506 million and 16.8 million life-years will be saved ( 4 ) . Through appropriate measures new jobs should be created by re-allocating funds within the EU and by making better use of tax revenues at national level.

1.6 The EESC notes that around EUR 100 billion in tobacco taxes are currently collected in the European Union. Taxing tobacco products is the most effective and economical way of reducing tobacco consumption, especially among young people and low-income groups (i.e., the most vulnerable members of our society) ( 5 ) . Studies have shown that the price of tobacco products is the third most common reason given by smokers for giving up. ( 6 ) The money saved by no longer spending on tobacco products can be used to buy other goods on which tax is also paid. It should also be noted that the taxes collected now pay for the health care of individuals who started smoking 50 years ago; those starting smoking today will need that same care in 50 years' time. Current experience suggests that Member States' governments are fully aware of this and have been able to continue to raise the tax take despite falling tobacco usage and sales across Europe. There is no reason why this proposal should change this.

1.7 In order to prevent further increases in illicit trade (i.e. smuggling, counterfeiting, bootlegging and illegal manufacturing) by criminal networks, which represents the single biggest threat to both employment and the collection of taxes in the EU, the EESC calls for all necessary measures to be taken to ensure that relevant legislation is applied rapidly and effectively across the Member States. Further proposals should be brought forward, in agreement with the tobacco industry, for other measures likely to limit counterfeiting and smuggling and to make identification easier, for instance by the incorporation of hard-to-reproduce identifying marks or electronic tagging in packaging. The EESC recognises that it is relatively easy, with modern technology, to counterfeit almost any goods or packaging; devoting additional space to appropriate health warnings is unlikely to have any significant impact either way.

1.8 In addition to wide powers granted to the Commission to further develop essential aspects of the directive by means of delegated acts, it must be ensured that decision-making is conducted in an open manner and in keeping with the interests of the Member States. The EESC emphasises that binding actions must comply with Article 290 TFEU.

1.9 The EESC strongly supports the concept of risk reduction and therefore requests that the Commission provide a clear definition and an appropriate legal framework for "reduced-risk products". This comment is particularly relevant to products that contain tobacco, but with reduced nicotine, or contain nicotine, but no tobacco, that are subject to the directive. The EESC recognises that some of these may represent a way forward, under careful controls still be developed, to reduce the long-term negative effects of tobacco smoking as a consequence of addiction to nicotine.

2. Introduction

2.1 The EESC is fully aware of the risks that tobacco in all its forms poses to public health. It is the most significant cause of premature death in the EU, responsible for almost 700 000 deaths every year. The proposal therefore focuses on preventing people, particularly the young and other vulnerable groups, from taking up tobacco consumption. The proposal notes that 70 % of smokers start before the age of 18 and 94 % before the age of 25, reinforcing the need to adopt measures in relation to children and young people ( 7 )

2.2 Against this background, the EESC believes that the revision of the directive is absolutely essential and should be carried out without delay. It notes that in some countries the level of tobacco consumption remains stubbornly high, even where strict anti-tobacco laws have been adopted. It is also clear that existing controls have brought significant reductions in most Member States. In Spain, a reduction of 2 % has been reported over a short period. The current proposal hopes to replicate similar reductions across the whole of Europe. The EESC also strongly favours promoting public education and awareness-raising plans and campaigns highlighting the serious health effects of smoking.

2.3 The EESC notes that the proposal has raised concerns for jobs, taxes and the economy as a whole in the European Union. The tobacco industry has indicated that it employs up to 1.5 million people in the EU, of whom around 400 000 are involved in growing tobacco leaf. Figures from the Commission and elsewhere suggest that these include those who are involved in the supply chain for tobacco products seasonally or on a temporary or part-time basis. The number of people directly and solely employed in tobacco farming, for instance, is believed to be fewer than 100 000. Production by these farmers accounts for around one quarter of the tobacco used for production and sales in the EU, the balance being imported, primarily from the US. Other jobs in packaging, marketing, sales, legal services, research and distribution should not be affected. It is unclear, therefore, why the proposed changes to the packaging of the finished products should have any major impact on current levels of employment. It is even less clear how the proposed measures can be described as being both ‘unproven and unlikely to succeed’ - as well as ‘potentially catastrophic’ - for the tobacco industry. The EESC believes that the reverse is true in both cases; that these measures will have a useful, valuable and proportionate effect on human health with only a small effect on the overall growth and profitability of the industry. Indeed any losses of new sales to young people should be more than compensated for by the reduction in the much greater illicit sales which benefit no-one except the criminal gangs involved.

2.4 Tobacco growing in the EU does, however, provide jobs, mainly in deprived areas where few alternatives have so far been developed. Now that CAP subsidies for the production of tobacco leaf are no longer available, transitional technical and financial support is urgently required to support a change to less harmful and longer-term, more sustainable sources of income. Similar comments apply to other jobs in the supply chain; if these are lost in the public interest, public support is clearly appropriate.

2.5 Nearly EUR 100 billion in taxes on tobacco products are collected every year. The EESC notes that, whilst this helps offset the health costs of those who started smoking 50 or more years ago, the same level of taxes will be required in 50 years’ time to care of those starting to purchase and consume tobacco products today. Tax rises will therefore be essential to balance any drop in sales. So far, the evidence suggests that Member States' governments are aware of this and can successfully maintain or even raise their overall tax take despite the decline in sales over recent years. In the UK, for instance, according to a recently published ‘All Party Parliamentary Group Report on Smoking and Health’ (2013) (8), with steadily increasing prices between 1992 and 2011, and with tax set at or above 75 % of the overall retail price, cigarette sales declined by 51 % whilst tax revenue for the government increased by 44 %. Adult smoking dropped from 27 % to 20 % over a similar period.

2.6 Although the bulk of tobacco products produced in the EU are delivered to customers in the EU, a certain quantity is exported. Industry figures showed total exports of tobacco products of around 55 000 tonnes in 2010, mostly to countries in Africa and Asia where life expectancy is, sadly, at present too low for any specific negative impacts on health to be visible. In due course, and as other problems are solved and life expectancy increases as intended, the impact of nicotine addiction and tobacco usage, as with other exported illnesses, will become more evident.

2.7 The EESC specifically notes, that, in contrast to the above, in the more developed countries of the EU, as life expectancy and working life continue to increase, the consequences of tobacco smoking will become increasingly evident in the workplace and for society as a whole, and therefore become a growing and more visible problem and responsibility for employers and employer and employee organisations alike. In the current recession, the early (and avoidable) deaths of salary and wage-earners and the loss of their incomes or pensions will add to the problems of families already struggling for economic survival.

2.8 The EESC notes that although the induction period for cancers related to smoking remains constant, overall life expectancy for non-smokers continues to increase. The loss of life expectancy due to the use of tobacco is therefore increasing, from 2-3 years at the start of the 20th century to 20-30 years for those starting to smoke tobacco today or during the period covered by this proposal.

3. General observations

3.1 The European Commission's proposal for a directive on tobacco products focuses on a series of measures to ensure the proper functioning of the internal market, including actions to reduce illicit trade, and to achieve a high level of public health protection in relation to the risks of smoking tobacco. These are as follows: — labelling and packaging; — ingredients; — traceability and security features; — cross-border distance sales; and — smokeless tobacco products and extension of the scope of the products regulated.

3.2 As regards labelling, packaging and ingredients, the proposal requires expanded health warnings in view of the serious health risks posed by tobacco use.

3.3 The proposal allows manufacturers to retain flavourings essential to their current brands but limits the use of new non-tobacco related additives intended to increase markets, in particular amongst young people. All packs will have to include health warnings in the form of text and images covering 75 % of the packaging, to which will be added new information texts on the sides of packs (50 % of each side), in addition to the excise stamp that is required in some Member States, the text on prohibition of sale to minors and the space reserved for the new measures for the monitoring and traceability of tobacco products. This means a reduction in the space available to display duly registered trade-marks and other marketing-related images. Member States may introduce completely plain packaging if they wish, but this is not required under this proposal. There will also be minimum requirements on the height and width of packs, which will mean that some types of pack, in particular those designed to attract young persons, will disappear. Similar rulings were introduced in the US in 2009 to reduce the targeting of children and young people. The EESC supports all these measures.

3.4 This will require changes in packaging designs but it is hard to see why this should have any significant impact on packaging jobs in countries such as Germany, Poland, France, the Czech Republic and Austria. Base sales of finished tobacco products in all forms are expected to continue broadly as now to a truly captive market of around 150 000 000 nicotine-addicted existing users across the EU. The potential for significant public health gains – both economically and, above all, in terms of reducing human suffering – should, however, be emphasised, together with the fact that ex-smokers will spend money in other areas and thus generate opportunities for new jobs. It is estimated that the annual burden of tobacco consumption to the EU is EUR 517 billion ( 9 ) . At Member State level, the total costs are estimated at around 4.6 % of EU GDP ( 10 ) . At present, the EU loses EUR 25.3 billion in healthcare costs for diseases associated with tobacco consumption and EUR 8.3 billion in productivity losses ( 11 ) . This almost matches the tobacco industry's revenue throughout the supply chain (excluding taxes), which amounts to EUR 35 billion.

3.5 The EESC notes that the costs attributed directly to diseases resulting from the use of nicotine and tobacco-related products are the current best estimates of the real costs to Member States. These are significantly lower than the theoretical ‘value of a human life’ (EUR 1 million for every life lost or curtailed) that the Commission has used in previous impact assessments to justify legislation and to balance the anticipated costs for business and others. If this much larger number were used here, this would increase the perceived incentives to adopt this proposal to EUR 700 billion, which would dwarf all other considerations.

3.6 It should also be noted that smoking and related habits bring no actual social or economic benefits to their users other than to relieve the consequences of their addiction to nicotine. Giving up is indeed hard and slow, as a result of this addiction. Sadly, even the awareness that almost a half of all users (‘customers’, ‘citizens’ and ‘vulnerable individuals’) will eventually die prematurely as a result of the habit is insufficient in itself to overcome this addiction; hence the need to reduce all incentives to starting smoking.

3.7 The measures introduced here are not intended to, and indeed are highly unlikely to, impact the behaviour of existing adult smokers but should, according to experiences from around the world, further reduce incentives for young people to start smoking. Above all, reducing the number of smokers will significantly reduce healthcare costs, and over time will save many lives and lessen human suffering.

3.8 The EESC notes that this proposal does not go as far as introducing fully standardised packaging, with standardised colours and fonts, as in Australia. Individual brands will remain, distinguished by their manufacturers' names and specific tobacco flavourings. The product quality requirement will continue to be relevant since the consumer will still be informed about the manufacturer of the product being purchased.

3.9 There is little compelling evidence that these changes to packaging rules will lead to an increase in tobacco counterfeiting or smuggling. On the contrary, smokers’ use of illicit tobacco is closely related to price and availability ( 12 ) . According to the latest figures from the industry, EUR 10 billion in revenues from taxes on tobacco products are lost every year as a result of such illicit trading. Sales of smuggled tobacco currently account for 10 % of the EU total ( 13 ) . Supplies from outside the EU, primarily from Russia and China are readily available. Demand is high in countries suffering from economic constraints and/or high taxation on tobacco products. Illicit sales put jobs at risk in the EU, reduce the tax take for governments and reduce the profitability of legitimate sales. As a result, every possible effort should be made to limit tobacco smuggling, by improving security, implementing surveillance and prevention measures and subjecting tobacco products to more stringent quality controls, to give just a few examples. The use of embossed identifying marks or electronic tagging should be considered along with other measures already agreed with the tobacco industry.

3.10 Whatever the costs are to implement these proposals, it must be borne in mind that the potential global benefits of improved public health if tobacco consumption is reduced are much higher. Studies have shown that governments and employers who have taken action to ban workplace smoking noted immediate positive effects (higher productivity, lower absenteeism, less expenditure for the upkeep and maintenance of facilities and lower costs for health care and health insurance). ( 14 )

3.11 The proposal also includes 16 delegated acts giving the European Commission the power to amend and take decisions on specific aspects of the directive, in accordance with Article 290 of the Treaty on the Functioning of the European Union ( 15 )

4. Specific comments

4.1 The directive should continue to focus on achieving both the internal market and public health goals which it sets out, implementing both long-term and short-term measures. In this respect, it is important to note that the European Commission's own estimate as to the health effects of its measures is a 2 % reduction in the number of those currently or likely to smoke. The directive is intended primarily to restrict growth rather than to reduce the levels of current usage. Although this percentage may seem low, there is a clearly positive impact in a number of different areas.

4.2 People of working age who stop smoking (as well as potential smokers who avoid starting) live longer and consequently have a longer working life. It is estimated that at present smokers die 14 years earlier than people who have never smoked, as a result of smoking-related disease or attendant complications. As overall life expectancy increases, especially for non-smokers, so will this difference. A 2 % reduction in tobacco consumption equates to 2.4 million smokers stopping and 16.8 million life-years gained. This would represent a gain for society of EUR 10.3 billion annually and would reduce healthcare expenditure by EUR 506 million per year. The benefits accruing from higher productivity as a result of less absenteeism, premature retirement and similar occurrences would total EUR 165 million per year ( 16 )

4.3 The inclusion of health warnings covering 75 % of both faces of the pack, together with the new information texts covering 50 % of the sides (Article 9), are part of a package of measures that help cut overall numbers of smokers. Tobacco packaging must be designed in such a way that the information it provides about product content is not misleading. It must therefore include a clear indication of the health risks involved, not least among them being premature death. Warnings should be shown at points of sale. Advertising at points of sale should, of course, be banned.

4.4 The restrictions on ingredients requiring the removal of deliberately introduced characterising flavours (Article 6), and the visual presentation of packs, are particularly important. One of the objective criteria, such as making tobacco less attractive, is particularly relevant to some age groups or a certain sex, specifically young women and girls, who are now one of the fastest growing markets in the EU and therefore under the most intense advertising pressure to take up the smoking habit.

4.5 The EESC therefore fully agrees with the Commission's proposal to prohibit new so-called "candy-flavoured cigarettes" with flavours such as "chewing gum", "pina colada" or "mojito", aimed specifically at young and mostly female potential consumers. "Slim" packages are also targeted specifically at young women, in an attempt to link body shape, weight and glamour to a habit that will eventually bring about the early death of half of them. Given that the long–term, inevitable dangers of nicotine-induced tobacco smoking are now understood and accepted by all concerned, the EESC finds it impossible to imagine how these marketing strategies could have been developed, let alone put in place, by responsible manufacturers.

4.6 The EESC requests that the Commission provide a clear definition and appropriate legal framework for "reduced-risk products" for which there is clear scientific evidence of reduced risk in comparison with normal cigarettes. The concept of reduced risk relates to products that can take the place of normal cigarettes but that involve much less risk to health, rather than to smoking cessation products. Those products that contain tobacco with reduced nicotine, or, better, nicotine with no tobacco ("electronic cigarettes") and that are subject to the directive should be clearly defined and regulated so as to make it possible to inform consumers of their long-term risks or benefits compared with conventional tobacco products.

4.7 The proposal also includes measures aimed at reducing illicit trade in tobacco. For example, in Article 14 of the proposal, the European Commission sets out a system of monitoring and tracing, as well as various additional security measures, so that only products that comply with the provisions of the directive will be sold in the European Union. These measures will involve a an economic and administrative burden that small and medium-sized enterprises (as opposed to the 4-5 major multinational companies that dominate the global trade in tobacco and nicotine related products) may find difficult to bear and will impose a greater administrative burden on Member States when carrying out inspections. Hopefully the system will reduce smuggling and illicit trade. The EESC therefore considers that the provisions of Article 14 of the proposal should be exactly the same as the monitoring and traceability clauses included in the Protocol on Illicit Trade agreed at the end of last year by the WHO Conference of the Parties ( 17 )

4.8 In relation to cigars, cigarillos and pipe tobacco, the proposal provides for the automatic power to withdraw certain exemptions set out in the text if there is a "substantial change of circumstances", which is linked to an increase in sales volume of at least 10 % in at least 10 Member States, or of 5 % among smokers under the age of 25. The market for these products in 10 of the 27 current Member States is, however, extremely small and a 10 % change could easily occur without significant impact on employment or tax revenues.

4.9 The EESC notes that Article 290 of the Treaty on the Functioning of the European Union provides for the delegation of powers by means of delegated acts which comply with a series of requirements. Delegated acts may only be used in relation to non-essential elements of a legislative act.

Voting

For : 89 Against : 162 Abstentions : 17

New point 1.4

New text:

Underscoring the importance of a healthy population and the manifold advantages of this, the EESC proposes that the Member States should encourage the extension of smoke-free environments where people can find moral and medical support, intended in particular for young people, teaching establishments, businesses, etc. Similarly, support should be given to setting up and maintaining various forms of support and a range of cooperation networks, putting the emphasis on innovative and educational features.

Voting

For : 69 Against : 157 Abstentions : 29

Point 1.5

Amend as follows:

There is a risk that tax revenues will fall sharply, not only because of an increase in illicit trade, but also due to falling sales and prices. About EUR 100 billion in tobacco taxes are currently collected in the European Union. Taxing tobacco products is the most effective and economical way of reducing tobacco consumption, especially among young people and low-income groups (18) . Studies have shown that the price of tobacco products is the third most common reason given by smokers for quitting (19) . The point should also be made that the money saved by no longer spending it on tobacco products is used to buy other goods on which tax is also paid.

Voting

For : 69 Against : 157 Abstentions : 29

Point 1.8

Amend as follows:

In addition to Tt he grant of wide powers granted to the Commission to further develop essential aspects of the directive by means of delegated acts, it must be ensured that decision-making is conducted in an open manner and in keeping with the interests will encroach on the sovereignty of the Member States and thus breach the principle of subsidiarity. The EESC cannot accept delegated acts that go beyond what is expressly permitted in emphasises that binding actions must comply with Article 290 TFEU. Furthermore, in the context of subsidiarity monitoring, eight national parliaments have given 14 votes against the Commission's proposal on the grounds that it does not comply with the principle of subsidiarity (20).

Voting

For : 69 Against : 157 Abstentions : 29

Point 1.9

Amend as follows:

The EESC supports the concept of risk reduction and therefore requests the Commission to provide a clear definition and an appropriate legal framework for "reduced-risk products" for which there is clear scientific evidence of reduced risk in comparison with normal cigarettes. ; this comment That is particularly relevant for products that contain tobacco rather than chemical nicotine, and that are therefore subject to the directive.

Voting

For : 69 Against : 157 Abstentions : 29

Point 3.1

Amend as follows:

(…)

Three of these six areas would have an huge impact on employment and tax revenues in the Member States of the European Union. As regards labelling, packaging and ingredients, the proposal requires expanded, more highly visible health warnings that are out of all proportion to those that currently exist, limiting the format, taste and content of tobacco products. For example, all packs will have to include health warnings in the form of text and images covering 75 % of the packaging, to which will be added new information texts on the sides of packs (50 % of each side), in addition to the excise stamp that is required in some Member States, the text on prohibition of sale to minors and the space reserved for the new measures for the monitoring and traceability of tobacco products. In practice, that means a huge reduction in the space available to display duly registered trade marks. There will also be minimum requirements for the height and width of packs, which will mean that some types of pack will disappear. That includes the "casket" format that is very popular in certain countries, including Greece. The most popular type of pack in Portugal has also disappeared. In addition, this change in packaging, which is not based on scientific evidence, may threaten jobs in the packaging industry, which is of great importance in several European countries, including Germany, Poland, France, the United Kingdom and Austria. It is important to note that the minimum requirements for the height and width of tobacco products were not included in the public consultation or the impact assessment report. There is also a prohibition on the sale of cigarettes with characterising flavours and a new definition of "cigarillo" which conflicts with tax legislation that has been in force in the EU for just over a year (21). The new visual presentation of packets, together with the associated minimum length and width requirements, will have positive effects, especially in terms of not tempting the at risk group represented by children and young people. Studies have decisively demonstrated that packaging is a marketing tool to sell goods. At present, tobacco product packaging is often designed strategically to attract a specific audience: studies show for example that in Latvia, women think that by choosing a product with light-coloured packaging they are choosing one with lower tar content and which is therefore less damaging to health. Child audiences consider that colourful packaging means that the product has no harmful health effects (22). It follows that a standardised presentation, preferably of simplified appearance, will not mislead consumers about the product's real effects – on the contrary, studies show that plain packs arouse feelings such as "boring and smelly, disgusting, old" etc (23).

Voting

For : 69 Against : 157 Abstentions : 29

Point 3.2

Amend as follows:

As a result, and since all packs will have the same format and all products the same flavour, price will be the only differentiating factor between brands, leading to a loss of value for the whole value chain in the sector. With price as the only competitive factor, prices will fall, leading on the one hand to a fall in income for operators in the sector and in tax receipts for governments and, on the other, to destruction of jobs in the sector although the Member States will be able to apply higher excise duties and increase their revenue.

Voting

For : 69 Against : 157 Abstentions : 29

New point 3.3

New text:

Although tobacco packaging will be standardised, thus reducing the distinguishing features of the different manufacturers, a designated area on the packaging will indicate the name of the company and the product, using a standardised size, colour and font. The quality criterion of the product will retain its relevance since the consumer will still be informed about the manufacturer of the product being purchased .

Voting

For : 69 Against : 157 Abstentions : 29

Point 3.3

Amend as follows:

Allowing differentiation only on the basis of price will mean, for example, that the high-quality tobacco grown in the European Union will no longer be attractive for companies that have factories in the EU, since quality will no longer be a criterion for the purchase of tobacco leaf. Contrary to what the Commission states in its impact assessment, that involves a major risk to the jobs that depend on its cultivation. The current tobacco leaf harvest in the European Union amounts to 250 000 tonnes of tobacco per year. Italy is the largest producer with 89 000 tonnes, followed by Bulgaria with 41 056, Spain with 38 400 and Greece with 24 240. This link in the chain provides employment for 400 000 people, led by Bulgaria with 110 000 people involved in tobacco cultivation, followed by Poland with 75 100 and Italy with 59 300 (24).

Voting

For : 69 Against : 157 Abstentions : 29

Point 3.7

Amend as follows:

The proposal for a directive also includes 16 delegated acts giving the European Commission the power to amend and take decisions on essential specific aspects of the directive, something which is expressly prohibited by in accordance with Article 290 of the Treaty on the Functioning of the European Union (25). That leaves the Council, the European Parliament and the national parliaments with almost no power over changes to key aspects of the directive.

Voting

For : 69 Against : 157 Abstentions : 29

New point 4.1.1

New text:

In countries hit by the economic crisis of recent years, such as Latvia, the health and economic costs arising from tobacco consumption are strikingly high: deaths related to tobacco consumption stand at 25 % for men and 4 % for women, while in the same country, 12 % of illnesses are linked to the consequences of consumption. The approximate costs of their treatment have reached EUR 29 million, or 3.27 % of the total healthcare budget. Production losses related to absenteeism due to smoking-related problems amount to 29.5 %, which amounts, still in Latvia, to a loss of EUR 12 million. Moreover, premature mortality due to smoking entails a high cost, amounting to around EUR 2.5 billion, or 9.38 % of GDP (26).

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.2

Amend as follows:

Such a disproportionate increase in the size of These health warnings will also lead to have the following effects :

— unilateral expropriation preservation of producers' legitimate intellectual and industrial property rights, since they will not be able to use their registered trade marks. According to the The European Court of Justice (27) considers that these rights can be limited as they are not absolute , manufacturers have the right to use their registered trade marks and to continue to distinguish their products;

— a further restriction of competition in a sector where there are already very few differentiating factors available;

— recognition that public health and the related advantages are a fundamental value, which has priority over trade in tobacco violation of the basic commercial rights inherent in any legal commercial activity;

— holding back the introduction of new products to the market of new products which are particularly harmful to public health and thus to economic growth. ;

— and the end of research and possible improvement of the quality of the products supplied. Arbitrary restrictions are being placed on bringing new-generation products to market, without allowing for a clear regulatory framework to be put in place under which the ability of such products to reduce the risk to the public could be assessed. That could also hold back the wealth- and job-creation that are linked to innovation and research in relation to these products. In addition, such new, potentially lower-risk products should not be subject to the same restrictions as are normal products.

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.3

Amend as follows:

The same applies to the The restrictions on ingredients requiring the removal of characterising flavours (Article 6), and the visual presentation of packs, are particularly important. One of the objective criteria, such as making tobacco less attractive, is particularly relevant to some age groups or a certain sex. which are not based on scientific evidence such as reduction of the toxicity or addictiveness of those ingredients, but on the subjective criterion of reducing the attractiveness of tobacco and on subjective stereotypes as to the type of tobacco smoked by different age groups or sexes. The same subjective approach appears in the arbitrary prohibition, without any justification, of certain formats, such as slim cigarettes (a prohibition that was not included in either the public consultation or the impact assessment report), short cigarettes and the whole category of menthol cigarettes, the setting of a minimum weight for bags of roll-your-own tobacco and the standardisation of the format of tins of tobacco and, in particular, the invention of a new category of "cigarillo" in breach of Directive 2011/64/EU (28), which came into force on 1 January 2011. The prohibition of slim and menthol cigarettes, which are popular in several European countries, would deny consumers access to such cigarettes, requiring them to resort to the market in smuggled cigarettes in order to obtain them. Furthermore, these tobacco products are primarily consumed by adult smokers, meaning that the argument that this is designed to prevent minors from having access to tobacco does not apply in this specific case. In the particular case of menthol, for example, it should be pointed out that this type of tobacco is essentially consumed by adults and that, furthermore, it has not been prohibited by countries such as the United States and Canada that have highly developed anti-tobacco legislation containing very specific provisions on the prohibition of certain ingredients. The EESC therefore proposes that the prohibition on menthol be removed from the proposal for a directive.

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.3.1

Amend as follows:

In conclusion, W we fully agree with the Commission's proposal to prohibit new so-called "candy-flavoured cigarettes" with flavours such as chewing gum, piña colada or mojito, which may essentially be aimed at young consumers.

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.3.2

Amend as follows:

Excessive R restrictions on ingredients would lead to standardisation of taste, making it impossible for competitors to differentiate themselves and limiting investment and the possibility of launching new products, which will harm consumers by denying them choice which would constitute an added incentive for current and potential consumers of tobacco products to learn about the products they consume or avoid using those products, so that they improve their health, productivity and all other factors that have a major influence on quality of life.

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.5

Amend as follows:

The European Commission's proposal for a directive also includes measures aimed at reducing illicit trade in tobacco. For example, in Article 14 of the proposal, the European Commission sets out a system of monitoring and tracing, as well as various additional security measures, so that only products that comply with the provisions of the directive will be sold in the European Union. These measures will involve a disproportionate economic and administrative burden that many small and medium-sized enterprises will be unable to bear and, far from reducing illicit trade, will impose a greater administrative burden on Member States when carrying out inspections. Nor will the system reduce smuggling and illicit trade, which will, on the contrary, be encouraged by the other provisions of the proposal for a directive. The EESC therefore considers that the provisions of Article 14 of the proposal for a directive should be exactly the same as the monitoring and traceability clauses included in the Protocol on Illicit Trade agreed at the end of last year by the WHO Conference of the Parties (29).

Voting

For : 69 Against : 157 Abstentions : 29

Point 4.6

Amend as follows:

Finally, the directive will allow the European Commission to use a sheaf of delegated acts to adjust and amend essential aspects, such as the level of additives and the wording, size and location of health warnings. That leaves states with almost no power over changes to the directive, involving an extraordinary degree of interventionism which the European Union has rarely seen before and which breaches the principles of subsidiarity and proportionality, as the national parliaments of eight Member States (Italy, the Czech Republic, Greece, Bulgaria, Denmark, Portugal, Romania and Sweden) are already claiming (30). The Italian parliament has not only indicated that the proposal breaches those principles, but has also emphasised that some of the types of cigarette that are to be prohibited, such as slim and low-tar cigarettes, may be useful tools of a policy whose aim is for smokers to cut back or quit (31).

Voting

For : 69 Against : 157 Abstentions : 29

(1) Article 114 TFEU reads as follows:

"1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market."

(2) See case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd.

(3) OJ C 128, 18.5.2010, pp. 89-93..

(4) Impact assessment (http://ec.europa.eu/health/tobacco/docs/com_2012_788_ia_en.pdf).

(5) Stefan Callan, Smoke Free Partnership, Making Tobacco Tax Trendy Toolkit, 2012, p. 5.,

http://www.smokefreepartnership.eu/sites/sfp.tttp.eu/files/LV%20-%20Tax%20Toolkit_4.pdf.

(6) European Commission, Attitudes of Europeans Towards Tobacco,

http://ec.europa.eu/health/tobacco/docs/eurobaro_attitudes_towards_tobacco_2012_en.pdf, p. 84.

(7) OJ C 351, 15.11.2012, pp. 6-11..

(8) http://www.ash.org.uk/APPGillicit2013.

(9) Impact assessment, p. 15.

(10) "A study on liability and the health costs of smoking" carried out by the European Commission estimates the total costs for 2009 (in terms of healthcare, production losses and human lives) at EUR 544 billion. (http://ec.europa.eu/health/tobacco/docs/tobacco_liability_final_en.pdf, p. 2).

(11) Commission impact assessment.

(12) Moodie C, Hastings G, Joossens L. Young adult smokers’ perceptions of illicit tobacco and the possible impact of plain packaging on illicit tobacco purchasing behaviour. Eur J Public health, first published online on 26 March 2011. DOI:10.1093/eurpub/ckr038. in Claims that Standardised Packaging Would Increase Illicit Trade are Untrue, Smoke Free Partnership, 10 September 2012,http://www.smokefreepartnership.eu/response-to-tobacco-retailers.

(13) See footnote 5.

(14) Carin Hakansta, International Labour Organisation, Working Paper "Workplace smoking: A Review of National and Local Practical and Regulatory Measures", March 2004, p. 6,

http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---safework/documents/publication/wcms_108424.pdf.

(15) OJ C 115, 9.5.2008, p. 172.

(16) Commission Staff Working Document Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products: http://ec.europa.eu/health/tobacco/docs/com_2012_788_ia_en.pdf, pp.116.

(17) http://apps.who.int/gb/fctc/PDF/cop5/FCTC_COP5(1)-en.pdf.

(18) Stefan Callan, Smoke Free Partnership, Making Tobacco Tax Trendy Toolkit, 2012, p. 5., http://www.smokefreepartnership.eu/sites/sfp.tttp.eu/files/LV%20-%20Tax%20Toolkit_4.pdf.

(19) European Commission, Attitudes of Europeans Towards Tobacco,

http://ec.europa.eu/health/tobacco/docs/eurobaro_attitudes_towards_tobacco_2012_en.pdf, p. 84.

(20) http://www.ipex.eu/IPEXL-WEB/dossier/dossier.do?code=COD&year=2012&number=0366&appLng=EN .

(21) Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, OJ L 176, 5.7.2011, pp. 24-36 .

(22) http://www.cancercampaigns.org.uk/ourcampaigns/theanswerisplain/moreinformation/.

(23) The Packaging of Tobacco Products, March 2012, The Centre for Tobacco Control Research Core funded by Cancer Research UK,

http://www.cancerresearchuk.org/prod_consump/groups/cr_common/@nre/@new/@pre/documents/generalcontent/cr_086687.pdf, pp.40.

(24) See footnote 11.

(25) OJ C 115, 9.5.2008, p. 172.

(26) http://ec.europa.eu/health/tobacco/docs/tobacco_liability_final_en.pdf.

(27) Judgment of the CJEU of 17 October 1990 in Case C-10/89.

(28) Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, OJ L 176, 5.7.2011, pp. 24-36.

(29) http://apps.who.int/gb/fctc/PDF/cop5/FCTC_COP5(1)-en.pdf.

(30) http://www.ipex.eu/IPEXL-WEB/dossier/dossier.do?code=COD&year=2012&number=0366&appLng=EN .

(31) Opinion of the Social Affairs Committee of the Italian parliament on European Commission document COM(2012) 788 final.