Message 001
Communication from the Commission - TRIS/(2023) 1372
Directive (EU) 2015/1535
Notification: 2023/0244/NL
Notification of a draft text from a Member State
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MSG: 20231372.EN
1. MSG 001 IND 2023 0244 NL EN 23-05-2023 NL NOTIF
2. Netherlands
3A. Ministerie van Financiën, Dienst Douane Noord, CDIU.
(cdiu.notificaties@belastingdienst.nl 050 5232135)
3B. Ministerie van Volksgezondheid, Welzijn en Sport
Directie Wetgeving en Juridische Zaken
4. 2023/0244/NL - X00M - GOODS AND MISCELLANEOUS PRODUCTS
5. Amendment to the Tobacco and Smoking Products Act regulating non-tobacco nicotine products and nicotine devices.
6. Non-tobacco nicotine products (including nicotine pouches) and nicotine devices intended for the consumption of non-tobacco nicotine products.
7.
8. With this Bill, non-tobacco nicotine products [nicotineproducten zonder tabak - NZT] are brought under the Tobacco and Smoking Products Act [Tabaks- en rookwarenwet - Trw] and NZT for oral use is completely banned.
More specifically, the purpose of this Bill is to:
1. Bring NZT that can be used as an alternative to tobacco products under the scope of the Trw, which will, inter alia, impose the advertising ban, age limit and other sales restrictions on these products. and
2. Completely ban NZT for oral use, like tobacco products for oral use, and place them under the advertising and smoking bans.
3. Bring refillable devices that can be used to consume NZT under the application of the Trw, which will, inter alia, impose the advertising ban, age limit and other sales restrictions on these products.
9. In accordance with the objectives of the National Prevention Agreement, the aim is to achieve a smoke-free generation by 2040. This also means that children should be protected from non-tobacco nicotine products that contain enough nicotine to cause and maintain nicotine addiction. In order to achieve the objectives of the Prevention Agreement, a broad set of measures will be introduced. Regulation of NZT under the Act is appropriate because this allows harmful products that can initiate or maintain nicotine addiction and which can be used as an alternative to tobacco products to be regulated in the same way as tobacco products and related products.
Prohibition of discrimination
The proposed ban is applied without discrimination. No distinction is made between products manufactured in the Netherlands or in other countries. Therefore, no distinction is made on the basis of nationality or Member State of origin
Necessity
The proposed ban or regulation is justified in view of an overriding reason in the public interest, namely: the protection of public health. The necessity and proportionality of the ban or regulation are discussed separately for each section below.
- Oral NZT
Nicotine pouches and the already prohibited snus have striking similarities in terms of the appearance of the product, the way it is used, the way it works, and its invisibility when used. The presence of flavours and attractive packaging also contribute to the appeal of both products to young people. Both products also contain harmful and addictive nicotine. The Government assesses nicotine pouches in line with the way in which the Court weighs up the risks of snus, and believes that nicotine pouches should be prevented from further increasing in popularity, especially among young people. In addition to the ban on tobacco for oral use (and with it, snus), it is therefore reasonable to impose a ban on nicotine pouches. If the ban were to apply only to nicotine pouches, then perhaps it would be possible for a modification of the product to not fall under the ban. By extending the ban to NZT for oral use, this can be prevented.
The use of snus is already banned in places where smoking is banned. It is difficult for those responsible for ensuring compliance with the smoking ban to determine whether someone is using snus or a nicotine pouch. This also applies to the Netherlands Food and Consumer Product Safety Authority [Nederlandse Voedsel- en Warenautoriteit] (hereinafter: NVWA) which must monitor whether the smoking ban is enforced by the manager of that location. Bringing nicotine pouches under the smoking ban as well shall improve the enforceability of the smoking ban on this point. Furthermore, it is not in line with the aim of a smoke-free generation that there are products on the market (which are not smoking cessation products) that can maintain nicotine addiction in places where smoking is not allowed. This would counteract one of the objectives of introducing smoking bans, namely to encourage smokers to quit smoking.
Less radical measures such as the introduction of an age limit, health warnings and a ban on flavours are insufficient for the Government to protect public health.
-Other NZT
For NZT that are not used orally, such as nicotine spray, there is currently no ban. Instead, these products are regulated in the same way as related products. Because these products also contain nicotine and therefore use is not without risk, regulation is required. The Government finds it undesirable that NZT that are not used orally are increasing in popularity, especially among young people. The present Bill therefore includes the age limit, advertising ban and sales restrictions, and sets packaging requirements for NZT.
-Nicotine devices
By regulating nicotine devices, the Government wants to prevent these products from being offered for sale on the Dutch market without being subject to the rules of the Act. Without regulation, advertising nicotine devices
can indirectly promote the use of NZT. Because these devices cannot be separated from the nicotine products themselves that can be consumed with them, it is important that these devices also fall under the scope of the Tobacco and Smoking Products Regulations.
Proportionality
The proposed measures are suitable for the protection of public health and do not go beyond what is necessary. The National Prevention Agreement agreed to have a smoke-free generation in the Netherlands by 2040. This requires a coherent package of measures, including a substantial increase in excise duties, a display ban, neutral packaging, an extension of the advertising ban, an extension of the smoking ban and a reduction of the number of points of sale, in combination with intensive campaigns.
-Oral NZT
Due to the appeal, harmfulness, addictiveness and manner of use, the Government considers that the ban on the marketing of NZT for oral use does not go beyond what is necessary to achieve the objective of ensuring a high level of public health protection. The Government considers that introducing an age limit, health warnings and a ban on flavours is insufficient to protect public health.
-Other NZT
The present proposal to regulate NZT is an appropriate means of achieving the above-mentioned objective, as the regulation places the same restrictions on the use of NZT as those which exist for tobacco products and related products. Currently, there are no restrictions on the selling and use of NZT, even though NZT, like tobacco products, are harmful to public health and can cause nicotine addiction. Therefore, the Government sees regulating NZT in the same way as tobacco products and related products as an appropriate means to reduce the appeal of NZT and nicotine products. The method of regulating NZT also does not go beyond what is necessary, because if NZT continue to be subject to less stringent rules than tobacco products and related products, NZT will remain a more appealing product and can continue to pose a high risk to public health.
-Nicotine devices
The Government considers that the regulation of nicotine devices is proportionate and meets the requirements of subsidiarity, because it does not prohibit the sale or use of these devices, but only imposes rules on such products. These rules ensure that the product is subject to requirements which can highlight the harmful effects on public health and restrict producers in their ability to advertise such harmful products. This protects public health.
Like previous measures, the proposal is part of a coherent package of measures needed to achieve a smoke-free generation by 2040.
10. Numbers or titles of basic texts:
11. No
12.
13. No
14. No
15. No
16.
TBT aspects: No
SPS aspects: No
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European Commission
Contact point Directive (EU) 2015/1535
email: grow-dir2015-1535-central@ec.europa.eu
