5 The manufacture, presentation and
sale of tobacco and related products
| (34587)
18068/12
+ ADDs 1-7
COM(12) 788
| Draft Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products
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| Legal base | Article 114 TFEU; co-decision; QMV
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| Department | Health |
| Basis of consideration | Minister's letter of 1 July 2013
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| Previous Committee Reports | HC 83-vi (2013-14), chapter 1 (19 June 2013);
HC 83-v (2013-14), chapter 5 (12 June 2013);
HC 86-xxx (2012-13), chapter 3 (30 January 2013)
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| Discussion in Council | Political agreement reached on 21 June 2013
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
5.1 The draft Directive would replace the existing regulatory
framework for tobacco products, which has been in force for more
than a decade, and introduce a number of changes which are intended
to take account of scientific, market and international developments,
including the entry into force of the World Health Organisation
Framework Convention on Tobacco Control in 2005. Our Thirtieth
Report of Session 2012-13, agreed on 30 January 2013, provides
a detailed overview of the draft Directive.
5.2 Whilst broadly welcoming the draft Directive,
the Government told us that many of the changes proposed by the
Commission would require further detailed examination and highlighted,
in particular, research being undertaken by the UK's Medicines
and Healthcare products Regulatory Agency (MHRA) on the regulation
of non-tobacco nicotine-containing products (NCPs), such as e-cigarettes,
as well as the Government's consultation on standardised or plain
packaging for tobacco products.
5.3 The Parliamentary Under-Secretary of State
for Public Health (Anna Soubry) wrote to us on 3 and 11 June setting
out in some detail the Government's position on the main elements
of the draft Directive and informing us that the Irish Presidency
was likely to seek a general approach on a compromise text before
the end of June. The details are contained in our Fifth Report,
agreed on 12 June. She wrote again on 17 June to confirm that
the Council would be invited to agree a general approach on a
Presidency compromise text at the Employment, Social Policy, Health
and Consumer Affairs (EPSCO) Council on 21 June. Details of the
Presidency compromise are described in our Sixth Report, agreed
on 19 June.
5.4 Whilst noting the Minister's view that the
Presidency compromise text was "good for public health"
and her desire to signal UK support, not least because it might
be a significant factor in securing a general approach within
the Council, we concluded that it would be premature to grant
a scrutiny waiver, given that the outcome of the Council appeared
uncertain and a number of important issues remained unresolved.
In particular, the Government only announced its approach to
the regulation of the rapidly expanding market for NCPs, including
e-cigarettes, shortly before the Council itself, and has yet to
conclude its internal deliberations on packaging of tobacco products,
in light of responses to its public consultation on plain packaging.
Moreover, the Presidency compromise text did not address the
Government's concern that tracking and tracing systems for tobacco
products should be dealt with in EU customs and excise legislation
or through domestic enforcement mechanisms.
5.5 We asked the Minister to provide us with
a full report on the outcome of the Council, highlighting any
additional changes made to the Commission's original proposal
as well as any legal, policy or financial implications for the
UK which had not already been addressed in the information provided
to us. We also asked her to continue to provide progress reports
on further discussions within the Council, and to produce a summary
of the key changes she expects the European Parliament to seek
(and the Government's position on them) before trilogue discussions
with the Council and Commission begin, at which point we indicated
that we might wish to recommend the draft Directive for debate.
The Minister's letter of 1 July 2013
5.6 The Minister (Anna Soubry) confirms that
the EPSCO Council agreed a general approach on the basis of a
revised Presidency compromise text, a copy of which she encloses
with her letter. She continues:
"The UK secured a number of key changes to address
our policy priorities including: the ability to maintain picture
warnings on all types of smoked tobacco; a more flexible approach
to cross-border distance sales; adequate freedom for Member States
to take forward domestic public health policies in certain key
areas, aimed at a higher level of health protection where this
is justified, through a revised wording of Article 24; and reductions
in numbers and breadth of delegated powers. The UK supported
the general approach. Only four Member States were unable to offer
their support, which meant that the UK vote was decisive in forming
a qualified majority."
5.7 Turning to the reasons for overriding our
scrutiny reserve, she adds:
"While I understand and respect the Committee's
decision not to grant the UK Government a scrutiny waiver ahead
of EPSCO, I thought it vitally important that the UK supported
the general approach at that meeting in order to secure negotiated
improvements in the measure and to prevent the adoption of a measure
disadvantageous to the UK. I also wanted to ensure that a measure
of benefit to the UK should continue to progress. Without the
UK's support, agreement to a general approach to a Directive which
I believe to be very good for public health may not have not have
been achieved, meaning that the proposal may have been seriously
derailed, and ultimately stopped altogether. Furthermore, had
we not taken part in a fulsome way at EPSCO, it was possible that
the group of Member States who opposed the UK's amendments might
have prevailed, and a general approach may have been agreed on
a different version of the proposal, which would not have provided
the freedoms for Member States to take forward domestic public
health policies in certain key areas, that we have been working
hard to secure. As set out in earlier correspondence to the Committee,
securing these flexibilities for Member States has been my priority."
5.8 The Minister tells us that the Presidency
compromise text includes two substantial changes to those outlined
in her earlier correspondence. These are:
- a reduction in the size of
the combined picture and text warnings for smoked tobacco products
— under the agreed general approach, these would cover 65%
of the outer front and back surfaces of packaging, whereas the
Commission had proposed 75% and the pre-Council Presidency text
70%; and
- flexibility for Member States to determine whether
or not they wish to ban cross-border distance sales of tobacco
products.
5.9 The Minister says that the Government will
continue to seek changes to the draft Directive, including the
provisions on tracing and tracking and security features, once
trilogue negotiations between the Council, Commission and European
Parliament begin later in the year. She undertakes to write before
then with information on the amendments proposed by the European
Parliament.
Conclusion
5.10 When we last considered the draft Directive,
we expressed disappointment that the Minister was unable to clarify
the Government's position on some of the key elements (notably,
the provisions on packaging and product description) and had only
recently announced its approach to the regulation of non-tobacco
nicotine-containing products, such as e-cigarettes, leaving little
time for Parliament to consider the implications of the draft
Directive for UK policies in these areas. We therefore concluded
that it would be premature to grant the scrutiny waiver requested
by the Minister.
5.11 We note that the Minister indicated in
her letter of 17 June that she was disposed to support a general
approach if a vote were to take place at the EPSCO Council on
21 June. However, given that we declined the Government's request
for a scrutiny waiver for the reasons set out in our last Report,
we are concerned by the Minister's decision to override scrutiny
and we therefore ask her to appear before us to give oral evidence
as soon as possible.
5.12 Meanwhile, we note the Minister's comments
that the Government will seek to secure further changes to the
draft Directive during trilogue negotiations which address its
concerns regarding the proposed tracking and tracing system for
tobacco products. We agree that it will be important to follow
developments in the European Parliament closely and, given the
different interests involved, anticipate that a successful outcome
before the European Parliament elections in May 2014 is far from
assured. We look forward to receiving information on the key
changes sought by the European Parliament (and the Government's
position on them) before the trilogue process begins, at
which point we will wish to recommend a debate. In the meantime,
the draft Directive remains under scrutiny.
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