Tobacco: Italian Senate rejects Borg’s directive

Two Committees from Palazzo Madama (Italian Senate) express strong criticism on methods, even though the objectives from Brussels on tobacco control are understandable

Reservations on the effectiveness and equilibrium of the directives proposed. Doubts also on the competition side

The objective is understandable but the method and tools are not. The Senate Committee on Health and EU Senate Policies Committee weren’t concerned about expressing heightened criticism regarding the proposal for a directive presented by the European Commission on the approximation of the legislative orders on the presentation, manufacturing and sales of tobacco and related products.

If it is not a rejection of the work ordered by the Maltese Commissioner Tonio Borg, it’s close. Because if on one side, under elections, both Committees from Palazzo Madama express a priori approval for the objectives of the proposal for directives on tobacco products – in particular, for the pursuit of tobacco control (a goal that moreover sees Italy among the most affected countries in the EU) – on the other hand, the final documents voted on by the two Senate Committees contain a different opinion of non-compliance with the subsidiarity and proportionality principles and for other specific reasons.

The objective of the proposal for a European directive in short is to improve functioning of the internal market by: updating already harmonized areas; amplifying selection of product guidelines; ensuring provisions of the directive are not circumvented; elevating the level of protecting health; ensuring a harmonized implementation of constraints from the World Health Organization (WHO) Convention on Tobacco Control.

To the go-ahead in principle, precise criticisms correspond. Particularly, “the directive proposal doesn’t seem aimed at harmonizing/approximating the legislation of the Member States.” Article 24, according to which member states are free to adopt different and more stringent sector regulations, is under accusation. “The directive proposal encourages the states to act in an autonomous manner in different areas such as: the calculation of different emissions of nicotine, tar, and carbon monoxide; further tests to calculate ingredients; requirements to prohibit products containing specific additives; the introduction of an authorizing authority for new products; the introduction of more stringent norms on packaging (for example generic packets). Such proposals – highlighted in the conclusive document of the Senate Committee on Health at Palazzo Madama – create the basis for significant differences between Member States, resulting in limitations on the free circulation of merchandise.”

Not only. There are “a few inconsistencies” in the viewfinder regarding what conforms to the power delegated to the Member States on essential elements on the boundaries for implementation for the directive proposal. “The power to implement delegated acts, conferred by the Commission is at risk of being excessively broad both in content – appointing at least16 areas regarding production, packaging and sales of tobacco products – and in duration, thus strongly circumscribing the legislative power of National Parliament,” observed the Senators of the Health Committee.

Still: also under scrutiny are the measures regarding standardizing packaging and prohibiting sales of entire categories of products that are actually legal, such as slim cigarettes, menthols and packets of 10. Well, “the unjustified ban on these legal products, besides seeming to contradict the first objective declared by the proposal, or even that of improving the function of internal markets, would make things convenient (without patent protection – editor’s note) and the resulting waste of its value, encouraging (a) consumers to use cheaper products, (b) competition to only lower prices, involving a reduction in the average price of tobacco products and (c) a strong increase in illicit markets (contraband / imitation), inasmuch standard packaging would be easier to replicate. The negative impact of these consequences on legal resale, revenue and supply chain would be considerable. Furthermore, the results that would have been achieved by the new directive proposal would conflict with the other fundamental objective of the proposal – the protection of public health.”

In summary: “in spite of the competence of the EU in the regulation of tobacco and related products, action by the Commission outside the criteria of necessity and added value is unjustified and prejudicial to the competence of the Member States” notes the EU Senate Policy Committee.

M.B.