ECMA, the European Cigar Manufacturers Association, is the trade association of cigar and cigarillo manufacturers established in the European Union (EU). ECMA represents 26 cigar/cigarillo companies with 24 manufacturing plants in the EU. Together these companies directly employ close to 6,000 persons in their cigar/cigarillo businesses in the EU (mainly in Germany, Belgium, Italy, Spain, and Hungary) supporting a supply chain of 42,000 people in Europe and close to 500,000 workers abroad. ECMA boasts 19 family-owned companies as part of its membership with 11 falling under the EU definition of small and medium sized enterprises - from all across Europe, all with strong regional roots. None of the so-called ‘Big Four’ are members of the association.
On 24 January 2025, the Spanish government notified a Draft Royal Decree amending Royal Decree 579/2017 of 9 June 2017 regulating certain aspects relating to the manufacture, presentation and marketing of tobacco and related products(“the notified measure”). The standstill period runs until 28 April 2025.
The purpose of this submission is to point out an error in drafting of single article, Two, section "as)", of Draft Royal Decree XXXX amending Royal Decree 579/2017, of 9 June 2017 regulating certain aspects relating to the manufacture, presentation and placing on the market of tobacco products and related products.
Specifically, we refer to the inclusion of the term ‘cigar" in the following definition:
" Heated herbal product": means a tobacco-free product, with or without nicotine, used for inhalation of an aerosol, consisting of an electronic device and a refill in stick, cigar, capsule or other format containing a substrate of herbs or other vegetable fibres, either dry or with very low humidity, whether or not containing artificially added nicotine.’
Term ‘cigar’ is clearly defined in art. 4.1 of COUNCIL DIRECTIVE 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco on Excise Duties, as a product composed exclusively of tobacco and with specific morphological features, as follows:
‘1. For the purposes of this Directive the following shall be deemed to be cigars or cigarillos if they can be and, given their properties and normal consumer expectations, are exclusively intended to be smoked as they are:
(a) rolls of tobacco with an outer wrapper of natural tobacco;
(b) rolls of tobacco with a threshed blend filler and with an outer wrapper of the normal colour of a cigar, of reconstituted tobacco, covering the product in full, including, where appropriate, the filter but not, in the case of tipped cigars, the tip, where the unit weight, not including filter or mouthpiece, is not less than 2,3 g and not more than 10 g, and the circumference over at least one third of the length is not less than 34 mm.’
Definitions above are replicated in paragraphs a) and b) of Article 59 of Spanish Law 38/1992, of December 28, on Taxes.
Then, ‘cigar’ is a tobacco product with differentiated regulatory treatment due to its specific characteristics in composition (always made of tobacco) and morphology, reasons for which it constitutes a specific category within tobacco products.
Considering the above, we consider use of the term ‘cigar’ within definition of ‘heated herbal product’ may generate confusion and legal uncertainty and does not comply with current regulations.
Furthermore, we understand it makes no sense making use of term ‘cigar’ (always made of tobacco) to refer a possible shape or format of the rechargeable device part of an ‘heated herbal product’ as this is expressly ‘tobacco free’.
For all the above, we deem convenient removal of term ‘cigar’ from the definition of ‘heated herbal product’ included in Royal Decree XXXX amending Royal Decree 579/2017, of 9 June 2017 regulating certain aspects relating to the manufacture, presentation and placing on the market of tobacco products and related products, resulting in the definition being worded as follows:
‘as) “heated herbal product” means a tobacco-free product, with or without nicotine, used for inhalation of an aerosol, consisting of an electronic device and a refill in stick, capsule or other format containing a substrate of herbs or other vegetable fibres, either dry or with very low humidity, whether or not containing artificially added nicotine.’
