Snus: EU Ban on Snus Sales

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Background

With the exception of Sweden, the sale of snus is prohibited in the European Union (EU). Article 17 of the 2014 EU Tobacco Products Directive (TPD) states that:

“Member States shall prohibit the placing on the market of tobacco for oral use, without prejudice to Article 151 of the Act of Accession of Austria, Finland and Sweden.”[1]

The TPD defines ‘tobacco for oral use’ as tobacco products for oral use, except those intended to be inhaled or chewed, made wholly or partly of tobacco, in powder or in particulate. This includes moist snuff and snus, but does not include chewing tobacco or nasal snuff.

The TPD explains the ban, as follows:

Council Directive 89/622/EEC prohibited the sale in the Member States of certain types of tobacco for oral use. Directive 2001/37/EC reaffirmed that prohibition. Article 151 of the Act of Accession of Austria, Finland and Sweden grants Sweden a derogation from the prohibition. The prohibition of the sale of tobacco for oral use should be maintained in order to prevent the introduction in the Union (apart from Sweden) of a product that is addictive and has adverse health effects. For other smokeless tobacco products that are not produced for the mass market, strict provisions on labelling and certain provisions relating to their ingredients are considered sufficient to contain their expansion in the market beyond their traditional use.[1]

Why Snus and Other Oral Tobacco Was Originally Banned

The snus sales ban has been in place since 1992. This prohibition was a response to aggressive attempts to introduce US-style smokeless tobacco ‘Skoal Bandits’ into Europe.[2] Originally in partnership with British American Tobacco (BAT), the U.S. Smokeless Tobacco Company (UST), co-founder of European lobby group ESTOC and since 2008 a subsidiary of Altria, marketed the product in several European countries, including the UK and Ireland. A peer-reviewed study from the University of Bath, analysing internal tobacco industry documents, demonstrated that tobacco companies saw smokeless tobacco as having the potential ‘‘to generate new profits without cannibalising existing profits from cigarettes’’ in Europe, and that young people were a key target.[3]

Image 1: Screengrab of BAT internal executive briefing reporting on UST’s British test markets, dated 31 March 1985, taken April 2015

Skoal Bandits was advertised as “the new way to enjoy tobacco”.[4] In the UK, students were both the target and the means of promotion.[3] An 1985 internal BAT memo reported that UST was ‘‘working the Universities’’, including paying students to promote Skoal Bandits to peers (Image 1).[5] Due to fear of this new tobacco product spreading across Europe, and its aggressive marketing tactics to young people, the European Parliament called for a total EU-wide ban on ‘oral tobacco’ sales in September 1987.[6][7] This call was preceded by a recommendation from the World Health Organization (WHO) urging countries with no history of smokeless tobacco use to pre-emptively ban this type of tobacco, in order to prevent a future public health problem.[7] In 1988 Ireland became the first European country to ban the sales of oral tobacco, followed in 1990 by the UK and Belgium.[8] They set a precedent for harmonising the internal market, and in 1992 an EU-wide sales ban of oral tobacco was enacted under the amended Labelling Directive.[3] This prohibition was reaffirmed in the 2001 TPD, and again in the 2014 TPD.

Tobacco Industry’s Initial Lack of Response to the Proposed Ban (1987-1992)

Between 1987, when the ban was first proposed, and 1992, when it was enacted, tobacco industry opposition to this ban was minimal, certainly compared to subsequent EU tobacco control directives and recent tobacco industry lobbying to remove the ban.[3] This may reflect the underdeveloped state of the tobacco industry’s EU lobby in the 1980s and early 1990s, and the fact that the big tobacco companies dominating the EU tobacco market at the time did not have any commercial interests in smokeless tobacco. Sweden was not yet part of the EU (it became a member in 1995) and the interests of the largest European smokeless tobacco manufacturer, Swedish Match (then the Swedish Tobacco Monopoly), were predominantly confined to Sweden.[3]

Nevertheless, the proposed ban prompted the establishment of ESTOC in 1989, co-founded by UST and Swedish Match, “to promote understanding of the smokeless tobacco industry and its products and dialogue with retailers, the media, regulatory and/or advisory bodies”.[9][10] Despite finding little evidence of active lobbying by ESTOC, internal tobacco industry documents show that the Confederation of European Community Cigarette Manufacturers (CECCM) briefly lobbied members of the European Parliamentary Committee on Legal Affairs to encourage them to review the legality of the Labelling Directive, arguing that Article 100A was an invalid legal basis for banning a tobacco product.[3] It is unlikely that CECCM was threatened by the ban on smokeless tobacco. Instead, it is more probable that CECCM wished to challenge the legal basis of EU tobacco control legislation in general, a tobacco industry tactic that has been central to industry efforts to derail all key tobacco control efforts in Europe.[11]

Increased Opposition to the Snus Ban from the 2000s

Although the original ban on oral tobacco passed with relative little opposition, its reaffirmation in the 2001 TPD led to two legal challenges. The ban on snus became the subject of a heated and, at times divisive, public health debate which developed into a political issue, with several interests groups subsequently lobbying to have the snus ban lifted.

Legal challenges in 2002

Although UST successfully challenged the Irish and UK national smokeless tobacco bans[8], the EU-wide ban was challenged twice – unsuccessfully- in the European Court of Justice (ECJ). The challenges were brought by Swedish Match and German cigar manufacturer Arnold André (of which Swedish Match is a shareholder), against the UK and German Governments.[12] The claimants argued that the snus ban was in breach of the rules laid down in Articles 95, 133 and 253 TEC, and was in contravention with the EU’s principle of subsidiarity, and also in breach of the principle of “the freedom to pursue an occupation.”[13] In 2004, the ECJ rejected all arguments and upheld the validity of the ban.[14]

After failing in its legal challenges, Swedish Match then framed the ban as a political issue:

“This is now a matter for the political decision makers in the different EU institutions. The Swedish Government have stood by us in our legal challenge. The Government now must continue to take its responsibility in the political process and play an active role to remove the current ban, which is discriminatory to a Swedish manufacturer, but also to Sweden as a member state as well as to a million Swedish consumers”[14]

Swedish Government Lobbying on Trade Platform (2008-2013)

In line with Swedish Match’s tactic of turning snus into a political issue, the Swedish Government (Ministries of Health and Foreign Affairs) actively sought support in Brussels for a removal of the snus ban. The government’s key argument was that the ban is a violation of free trade principles, an argument first promulgated by Swedish Match over a decade ago.[15][16]

Image 2: Screengrab of Email from the Swedish Ministry of Health and Social Affairs to DG SANCO commenting on the interim RAND report, taken April 2015

It is noteworthy that the government has consistently ignored health warnings from its own public health experts at the Swedish National Board of Health and Welfare and the Swedish National Institute of Public Health (a state agency under the Swedish Ministry of Health and Social Affairs) about the negative health impacts of snus use.[17][18][19]

Sweden’s opposition to the ban was most evident during the revision of the 2001 TPD (2009-2014). Commenting to DG SANCO (the European Commission’s Directorate-General responsible for tobacco control) on an early draft of the TPD proposal in 2010[20], the Swedish Health Ministry was more concerned with trade and business impacts than health (image 2). The Ministry rejected a continuation of the snus ban, claiming it “resulted in cross-border market distortion”, and further criticised the proposed plain packaging option because “The introduction of plain packaging would thus have severe ramifications for the proprietors of such trademarks. Any such undermining of the protection of intellectual property rights must be handled seriously and with great precaution”.[20]

Sweden’s submission to the Commission’s public consultation at the end of 2010 voiced similar arguments, including that “In Sweden's opinion, there are no grounds for a ban on this tobacco product. Such a prohibition is contrary to the basic idea of a free market within the Union”.[21]

One of the most vocal Swedish politicians that lobbied against the snus ban was Swedish Minister for Trade between 2007 and 2014, Ewa Björling. Shortly before the public consultation closed, she wrote (in English) a letter to her “colleagues” urging them to respond to the consultation in favour of lifting the ban on snus, directing her colleagues to a website (www.sweden.gov.se/snus) set up by the Swedish Government to explain why snus should be legalised.[22] This website is no longer active (attempted access in April 2015).

In 2011, Björling further lobbied her European counterparts through the European Council’s Competitiveness Council, raising the snus ban as an internal market issue. In July that year she wrote to Health Commissioner Dalli, copying in the other Commissioners to her letter, claiming that the ban on snus was “disproportionate” and that there was no consensus on the health risks of snus.[23] One month later Björling was quoted in Tobacco Journal International, a tobacco industry trade journal, saying that the snus fight would continue, and that she was “not going to give up because I think the ban is unfair”.[24] In early October 2012, weeks before Dalli was forced to resign in the ‘Dalligate’ controversy, the State Secretary to the Swedish Prime Minister hosted the Head of the Cabinet of EU President Barroso in Stockholm. According to a Commission’s file note, Sweden used this as an opportunity to push the snus issue.[25]. However, this attempt was seemingly unsuccessful as in December 2012 the Commission presented its TPD proposal, which maintained the snus sales ban. Trade Minister Björling told the media that there would be an "all-out war" if the EU directive didn't go Sweden's way, but in June 2013 Sweden abandoned its efforts to lift the EU ban on snus, shifting its focus to fight (successfully) the proposed flavouring ban for snus. "When it comes to the issue of exports, there's no way we can reach a successful outcome," the Swedish Health Minister Maria Larsson told the media at the time.[26]

Despite strong Swedish opposition, there was no support amongst other EU Member States to lift the ban of snus during the revision of the TPD.[27][28]

Swedish Match Overt and Covert Lobbying Practices

For information on Swedish Match’s overt and covert lobbying practices to remove the snus ban, see:

Big Tobacco Embracing ‘the Snus Cause’ (2008-2011)

Since 2008 transnational tobacco companies (TTCs) have lobbied EU Member States and the European Commission to lift the ban on snus, arguing that there is no evidence to support the ban and that snus can serve as a harm reduction product.[3] Philip Morris (PMI) and BAT responded to the 2008 UK Government Consultation on the Future of Tobacco Control and urged the UK Government to support lifting the ban on snus, among other things, citing the The Swedish Experience as proof of concept.[29][30] When the European Commission ran its 2010 public consultation on the TPD, PMI[31], BAT[32], Imperial Tobacco [33], and Japan Tobacco International[34] responded in favour of lifting the snus ban. Imperial Tobacco argued that “There is no evidence to justify the ban on the marketing and sales of snus”[33], whereas PMI suggested that public health concerns “should be addressed through regulation rather than the EU’s current policy of prohibition”[31], and BAT favoured a “more science-based regulation of smokeless tobacco products.”[32] In December 2011 the four big tobacco companies reiterated their desire to see the snus ban lifted in a meeting to discuss the TPD with DG SANCO.[35] However subsequent TPD lobbying efforts appear to have focussed on the measures TTCs felt most threatened by – namely the introduction of plain packaging, a point of sale display ban, and an ingredients ban.[36].

TobaccoTactics Resources


Notes

  1. 1.0 1.1 European Union, Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco. Official Journal of the European Communities, 2014 L 127/1 (29/04/2014)
  2. M. Raw, P. White, A. McNeill, Case Study 9: Skoal Bandits, in "Clearing the Air: A guide for action on tobacco", 1990, British Medical Association, on behalf of the World Health Organization, Regional Office for Europe, London, p. 100-112
  3. 3.0 3.1 3.2 3.3 3.4 3.5 3.6 S. Peeters, A.B. Gilmore, Transnational Tobacco Company Interests in Smokeless Tobacco in Europe: Analysis of Internal Industry Documents and Contemporary Industry Materials, PLoS Med 2013 10(9):e1001506, accessed April 2015
  4. US Smokeless Tobacco. Clearance of Television Commercial, 4th May 1984. Bates number 4417492-4417496, accessed April 2015
  5. J. Africk, Letter from J Africk to Peter M Hayward regarding 1984 annual report, 21 March 1985, Bates number 301552311-301552314, accessed April 2015
  6. The European Community, Legislative Strategies for a Smoke-free Europe, September 1987. Bates no: TI06351865-TI06351936, accessed April 2015
  7. 7.0 7.1 Kratovil, E.D., STA/USTI International Letter, October 1987. Bates no: USTC4112118-USTC4112198, accessed April 2015
  8. 8.0 8.1 European Bureau for Action on Smoking Prevention. Report on a New Form of Smokeless Tobacco: Moist Snuff. November 1990. Bates number USTC4917044-7075.Available from: http://legacy.library.ucsf.edu/tid/cyc21b00, accessed April 2015
  9. J Walter, Note from John Walter to Per Erik Lindqvist enclosing legal brief on ‘‘European Smokeless Tobacco Council’’, 16 February 1989. US Smokeless Tobacco. Bates number USTC4322075-USTC4322087, accessed April 2015
  10. Minutes of The General Assembly Meeting, 7 September 1989. US Smokeless Tobacco. Bates number USTC4441135-4441138, accessed April 2015
  11. A. Gilmore, M. McKee, Tobacco-Control Policy in the European Union. In: Feldman EA, Bayer R, editors. Unfiltered Conflicts over Tobacco Policy and Public Health (2004): Harvard University Press. pp. 219–254
  12. Arnold-André website, About us, undated, accessed April 2015
  13. European Commission, Commission Staff Working Document Impact Assessment, 19 December 2012, accessed April 2015
  14. 14.0 14.1 Swedish Match, The Ban on Snus Survives ECJ Challenge, Press Release 14 December 2004, accessed April 2015
  15. Swedish Match, Arbitrary, unreasonable and discriminatory, Press Release 3 June 2002, accessed 2 June 2011
  16. Swedish Match, The legality of the EU ban on Swedish snus to be reviewed, Press Release 28 June 2000, accessed June 2011
  17. S. Wamala, "Free trade of Swedish moist snuff in the EU: Reflection from the Swedish National Institute of Public Health", Swedish National Institute of Public Health, 26 May 2009, accessed 10 October 2010
  18. Oral Cancer Foundation, “Snus causes cancer”-health institute, 1 March 2010, accessed April 2015
  19. M. Ohlen, Sweden wants the EU to legalise snus, 20 February 2011, accessed April 2015
  20. 20.0 20.1 U. Lindblom, Email to DG SANCO dated 21 January 2010, Subject: Swedish Comments on the Draft IA Report. Stockholm
  21. C. Danielsson,Sweden's response to the public consultation on Directive 2001/37/EC 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, electronic submission to DG Sanco European Commission 22 December 2010, accessed April 2015
  22. E. Björling, Letter to colleagues about Swedish Snus and the possible revision of the Tobacco Products Directive, 14 September 2010, Stockholm
  23. E. Björling, Letter to Commissioner Dalli, subject: Uniform and responsible regulation of all tobacco products, 14 July 2011, Stockholm
  24. Trade Minister says snus fight will continue, Tobacco Journal International, August 2011
  25. Member of Cabinet Barroso, Note for the file: Mission to Stockholm, Monday 8 October 2012. Brussels
  26. Sweden abandons bid to lift EU snus export ban, The Local Se, 13 June 2013, accessed April 2015
  27. European Commission Health and Consumers Directorate-General, Report on the public consultation on the possible revision of the Tobacco Products Directive (2001/37/EC) Health July 2011, accessed April 2015
  28. European Commission Health and Consumers Directorate-General, 8th Meeting of the Regulatory Committee established under Article 10 of the Tobacco Products Directive 2001/37/EC Summary record, 16 April 2008, accessed April 2015
  29. Phillip Morris Limited, Philip Morris Limited’s Response to the Department of Health’s Consultation on the Future of Tobacco Control, 8 September 2008, accessed April 2015
  30. British American Tobacco, BAT response to the Department of Health discussion document ‘Consultation on the future of tobacco control, May 2008’. 5 September 2008
  31. 31.0 31.1 K. Doms, Industry Submission by Kristof Doms Vice President EU Affairs, Philip Morris International undated, accessed April 2015
  32. 32.0 32.1 C. Furste, Submission by Cynthia Furste British American Tobacco, undated, accessed April 2015
  33. 33.0 33.1 J.M Decourchelle, Submission SEITA Imperial Tobacco France, undated, accessed April 2015
  34. S. Reingrabner,Submission Japan Tobacco International (JTI)/ Austria Tabak, undated, accessed April 2015
  35. Minutes of 7 December 2011 meeting between tobacco industry reps and DG SANCO, accessed 4 January 2012
  36. S. Peeters, H. Costa, D. Stuckler et al, The revision of the 2014 European tobacco products directive: an analysis of the tobacco industry’s attempts to ‘break the health silo’. Tobacco Control, published online first 24 February 2015, accessed April 2015