Netherlands: Court upholds ban on e-cigarette flavours

The Hague court has ruled that the Dutch state is entitled to ban flavourings in e-cigarettes in order to protect public health. The court made the decision in substantive proceedings brought by tobacco manufacturer British American Tobacco (BAT) and its affiliate Nicoventures, which argued that the ban was unlawful. [1]-[2].

Flavor Ban: A Step Towards a Tobacco-Free Generation

In June 2020, the then Secretary of State for Health, Welfare and Sport announced a ban on flavours for e-cigarettes. This means that no flavours other than certain types of tobacco flavours may be added to e-cigarettes. This measure was necessary, according to the government, due to new knowledge about the harmfulness, addictiveness and appeal of these products to young people. According to the state, it is increasingly clear that young people are particularly attracted to flavours - most often sweet flavours. According to the Dutch state, there are strong indications that sweet flavours are a stepping stone to the consumption of traditional cigarettes. According to the state, the ban on flavours is in line with the goal of a tobacco-free generation set for 2040. Since 1 January 2024, the Dutch Food and Consumer Product Safety Authority has been enforcing the ban on flavours.

The RIVM Institute for Public Health then drew up a list of 16 ingredients that manufacturers can use to make tobacco flavours. According to the RIVM, around a quarter of current tobacco flavours can be made with this list of ingredients.[3].

Ban illegal according to cigarette manufacturer British American Tobacco

British American Tobacco (BAT) and its subsidiary Nicoventures had brought an action against the State, arguing that by imposing the ban on flavours for vaping products, the State was violating the principle of the free movement of goods within the EU and that this decision was not justified. According to BAT, the State had not sufficiently demonstrated scientifically that the ban on flavours would benefit public health. According to the tobacco company, this measure could instead encourage former smokers who currently vape to return to tobacco consumption, or even dissuade current smokers from switching to vaping. Furthermore, according to BAT, it would be impossible to manufacture e-cigarettes (with a tobacco flavour) with the 16 authorised liquids. Therefore, according to BAT, the ban on flavours effectively amounted to a complete ban on vaping devices.

A ban justified and necessary to protect public health

The court ruled that the flavour ban was not illegal. The harmfulness of e-cigarettes and the attractiveness of sweet flavours to young people had been sufficiently established to justify the flavour ban. The court noted the country’s goal of achieving a tobacco-free generation by 2040. Furthermore, BAT’s argument that the flavour ban would penalise former smokers who are currently vaping did not carry “sufficient weight”, adding that the state has a "margin of political appreciation to give greater weight to the interests of youth and a future tobacco-free generation in the context of public health."

The Court clarified that not all vaping devices are banned and that other manufacturers have managed to create tobacco flavours with the authorised ingredients. For the Court, smokers who wish to quit smoking by switching to an e-cigarette can therefore continue to do so even if the ban on flavours is in force.

The Court accepts that the ban on flavourings undermines the free movement of goods but that it affects e-cigarettes in the same way regardless of their origin and, moreover, the decision is justified for reasons of public health protection. The harmfulness of e-cigarettes is sufficiently established. Only the degree of harmfulness is still the subject of scientific debate, adds the Court. In addition, the World Health Organisation recommends banning flavourings to reduce the use of e-cigarettes by young people. The measure is thus "appropriate, necessary and proportionate" according to the Dutch Court.

Banning flavours other than tobacco flavour for vaping and nicotine products is a measure being implemented by more and more countries, in an effort to protect young people and achieve a tobacco-free generation. In France, the National Committee Against Smoking (CNCT) is advocating for a ban on all flavours except tobacco flavour.

©Tobacco Free Generation

AE

[1] Staat mocht smaakverbod voor e-sigaretten voeren, Law, published on November 6, 2024, accessed on November 7, 2024

[2] Dutch court upholds e-cigarette flavor ban, RFI, published on November 6, 2024, consulted on November 7, 2024

[3] Generation without tobacco, Netherlands bans flavourings in vaping products, published on December 6, 2022, consulted on November 7, 2024