Message 002
Communication from the Commission - TRIS/(2022) 02545
Directive (EU) 2015/1535
Translation of the message 001
Notification: 2022/0508/NL
No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.
(MSG: 202202545.EN)
1. MSG 002 IND 2022 0508 NL EN 19-07-2022 NL NOTIF
2. NL
3A. Ministerie van Financiën
Belastingdienst/Douane centrale dienst voor in- en uitvoer
3B. Ministerie van Volksgezondheid, Welzijn en Sport, Directie Wetgeving en Juridische Zaken
4. 2022/0508/NL - X00M
5. Amendment of the Tobacco and Smoking Products Order for regulation of e-cigarette flavours
6. Re: setting rules on additives that create flavours other than tobacco flavour in liquids containing nicotine, nicotine-free liquids and other e-cigarette components
7. - The parts of the Tobacco and Smoking Products Act [Tabaks- en rookwarenwet] and the amendment to the Tobacco and Smoking Products Decree [Tabaks- en rookwarenbesluit], on which this Ministerial Order is based, will be sent along as an annex.
8. The draft amendment to the Tobacco and Smoking Products Decree was notified to the European Commission on 29 September 2021, in accordance with Article 5(1) of Directive (EU) 2015/1535. This did not give rise to any comments from the European Commission or any EU Member State. This amendment to the Tobacco and Smoking Products Decree, which is yet to be published, is intended to make e-cigarettes less attractive by banning e-cigarette flavours other than tobacco. Article 2.4(2) (new) of the Tobacco and Smoking Products Decree states that it is not permitted to use flavouring additives other than those designated by ministerial order as ingredients in liquids containing nicotine, nicotine-free liquids or other e-cigarette components. This draft Ministerial Order exercises the above option by including an exhaustive list of 16 flavouring additives in Article 2.12 of the Tobacco and Smoke Products Order which may be added to liquids for and other components of e-cigarettes, which only allows flavouring additives that provide a tobacco flavour. In addition, Articles 3.9 and 3.10 prohibit packages or accompanying leaflets indicating flavouring additives that do not appear on the exhaustive list. This is to prevent giving the impression that an e-cigarette features a flavour other than tobacco. These provisions may be regarded as technical regulations.
A mutual recognition clause is not provided. By virtue of Article 34 of the TFEU, enforcement of this legislation is justified by an overriding reason in the public interest, namely the need to protect public health. Member States are free to determine their level of protection. The Netherlands opts for a very high level of protection, to achieve a smoke-free generation in 2040, with only 5% of adults still smoking. This high level can only be achieved by means that include new legislation.
9. Mounting scientific evidence indicates that e-cigarettes are harmful, addictive and attractive. E-cigarette use also appears to make young people more likely to start smoking tobacco compared to young people who do not use these products. To make e-cigarettes less attractive, this draft Ministerial Order now bans additives that create flavours other than tobacco flavours in liquids containing nicotine, nicotine-free liquids and other e-cigarette components. This will ban the production and sale of e-cigarettes in flavours other than tobacco. This helps reduce the temptation for young people and former smokers to purchase these e-cigarettes. To enable regulation of flavours other than tobacco in liquids for e-cigarettes, the text now only permits additives that are relatively more common in tobacco-flavoured liquids than in sweet, attractive flavours. The Dutch Government deems this highly likely to make it impossible to place the sweet, attractive flavours on the market. By allowing only certain flavouring additives as ingredients, monitoring for the indicated ingredients can verify compliance with the regulations. Moreover, in cases of doubts as to whether the product meets the regulations, chemical analysis can determine whether unauthorised additives are present in the liquids. Also banning the use of undesignated flavouring additives as ingredients in other components of electronic vapour products prevents the addition of unauthorised flavouring additives by means of cartridges, separate mouthpieces or other e-cigarette components. Due to the harmful effects of inhaling chemicals in liquids for e-cigarettes and the addictiveness of nicotine e-cigarettes, reducing the attractiveness of e-cigarettes offers health benefits. For this reason, regulating flavourings for e-cigarettes is justified by the need to protect public health. Here, the requirements will apply to all e-cigarettes placed onto the market in the Netherlands, meaning that application of this measure is non-discriminatory. The government further deems the measure to be proportionate given that the exhaustive list will only indicate permitted flavouring additives and will not be used to prescribe all ingredients in liquids and other e-cigarette components. Thus, the measure does not go beyond what is necessary. A less restrictive alternative that can achieve the same goal is not conceivable either, making this form of state intervention justified. It is proportionate because it does not ban the sale or use of e-cigarettes, but rather sets rules by ministerial order on the ingredients that can be added to the liquid as flavouring additives. It is therefore still possible to use e-cigarettes as an aid to quit smoking. The measures are also necessary in a democratic society because the legitimate objectives of a smoke-free generation by 2040, in which no young people start smoking, preventing smoking in general and helping current smokers quit are more likely to be achieved if e-cigarettes are less attractive.
10. Numbers or titles of basic texts: Annexes 1a and 1b: amendment to the Tobacco and Smoking Products Order (text and explanatory notes)
Annexes 2a and 2b: amendment to the Tobacco and Smoking Products Decree (text and explanatory notes)
Annex 3: file containing the Tobacco and Smoking Products Act and the Tobacco and Smoking Products Decree, on which this Ministerial Order is based, in the versions in force on 12 July 2022.
11. No
12. -
13. No
14. No
15. Yes
16. TBT aspect
No, the draft in is accordance with an international standard
SPS aspect
No, the draft is neither a sanitary nor a phytosanitary measure.
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European Commission
Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu
