1 The manufacture, presentation and sale
of tobacco and related products
| (34587)
18068/12
COM(12) 788
+ ADDs 1-7
| Draft Directive of the European Parliament and of the Council 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 31 July 2013
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| Previous Committee Reports | HC 83-viii (2013-14), chapter 5 (3 July 2013);
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 | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Committee C
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Background and previous scrutiny
1.1 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. As with previous
EU Directives, it is an internal market measure based on Article
114 of the Treaty on the Functioning of the European Union (TFEU)
and (as required by that Article) takes as its base a high level
of public health protection. A particular concern is to discourage
tobacco consumption by young people. The Commission estimates
that 70% of smokers start before the age of 18. The draft Directive
was published in December 2012 and deposited for scrutiny early
in 2013. Our Thirtieth Report of Session 2012-13, agreed on 30
January 2013, provides a detailed overview of the draft Directive.
1.2 In her Explanatory Memorandum, the Parliamentary
Under-Secretary of State for Public Health (Anna Soubry) broadly
welcomed the draft Directive and indicated that the then Irish
Presidency was keen to secure a general approach within the Council
by the end of June. She also indicated 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 the possible introduction of standardised (or
plain) packaging for tobacco products.
1.3 We expressed our disappointment that the Minister
was unable to provide more information, particularly in light
of the ambitious timetable set by the Presidency, and asked her
to clarify the Government's position on those elements of the
draft Directive introducing new or more stringent regulatory requirements.
1.4 The Minister responded on 3 June, apologising
for the delay in providing the information we had requested and
adding that it had taken some time to secure cross-Government
clearance of the UK's negotiating position. She highlighted
the UK's role as "a European and global leader in tobacco
control" and expressed the Government's support for the proposed
ban on additives and flavourings, the mandatory use of combined
picture and text health warnings, and larger health warnings.
She wrote again on 11 June to announce the outcome of the MHRA's
research on NCPs and its endorsement of the Commission's proposal
to regulate NCPs exceeding a particular dose threshold (in practice,
most NCPs currently on the UK market) as medicines, not least
because this would enable better long term monitoring of their
safety and the imposition of controls on access and advertising
where justified (for example, to protect children). The details
are contained in our Fifth Report, agreed on 12 June.
1.5 The Minister 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 and to
request a scrutiny waiver. She indicated that the Government
would seek further changes (specifically to Article 24) to enable
Member States to maintain or introduce more stringent domestic
tobacco control measures (especially plain packaging) if duly
justified on public health grounds. She also reiterated the Government's
preference for provisions on the tracking and tracing of tobacco
products to be included in EU customs and excise legislation rather
than in the draft Directive. However, her overall assessment
of the Presidency compromise text was that it was "good for
public health" and that UK support for it at the Health
Council could be crucial in securing an acceptable agreement.
Details of the Presidency compromise are described in our Sixth
Report, agreed on 19 June.
1.6 We considered that too many important issues
remained unresolved and that the outcome of the Council appeared
too uncertain to warrant a scrutiny waiver, and asked the Minister
to provide a full report on the Council. Her letter of 1 July
confirmed that the Council had agreed a general
approach and that UK support was "decisive" in forming
a qualified majority. She indicated that UK support for the Presidency
compromise text was "vitally important" and gave the
following reasons for overriding our scrutiny reserve:
- to secure improvements which were beneficial
for the UK (for example, ensuring that the UK could maintain picture/text
warnings on all smoked tobacco products, including cigars, and
increasing flexibility for Member States to implement domestic
public health policies, such as standardised packaging);
- to ensure that the draft Directive was able to
continue to progress; and
- to prevent other Member States securing a general
approach on a different compromise text that might have been less
favourable for the UK.
1.7 The Minister indicated that further compromises
were needed to secure agreement. In particular, the size of the
combined picture and text warnings for smoked tobacco products
was reduced from 75% of the outer front and back surfaces of packaging
in the Commission's original proposal to 65% in the Presidency
general approach. However, the Government succeeded in obtaining
further changes to Article 24 to protect its ability to introduce
plain packaging, should it (or a future Government) choose to
do so. Our Eighth Report of 3 July sets out further details.
1.8 We reiterated our concern that the Government's
inability to clarify its position on some key elements of the
draft Directive (such as the provisions on packaging and product
description and the regulation of NCPs) left insufficient time
for Parliament to consider the implications for UK policies in
these areas and invited the Minister to explain in person the
reasons for deciding to override scrutiny. A transcript of the
Minister's oral evidence is available on our Committee website.[1]
The Minister's letter of 31 July 2013
1.9 The Minister (Anna Soubry) provides further information
on two issues raised during the evidence session. First, the
Minister told us that UK support for the Presidency compromise
text was "absolutely critical" in securing a general
approach. We asked her whether the outcome would have been different
if the UK had abstained:
"As I set out in my letter to the Committee
of 1 July 2013, four Member States — Bulgaria, Czech Republic,
Poland and Romania — were unable to offer their support,
which meant that the UK's support was decisive in forming a qualified
majority.
"My understanding of likely Member State voting
intentions on the morning of the meeting was that, without the
UK's support, it was possible that agreement would have been reached
on a different version of the proposal that would have watered
down the important public health measures in the proposal, perhaps
even removing some of the tobacco control measures we currently
have in place, and would not have been in keeping with our agreed
negotiating position. For example, by supporting a General Approach,
the UK secured the flexibility in the current Council compromise
text to apply picture warnings to all smoked tobacco (including
cigars), and also not to apply a ban on cross border distance
sales.
"Most importantly, the fact that the UK offered
its support for a General Approach meant that we could secure
freedom for Member States to take forward domestic public health
policies in certain key areas in the current Council compromise
text. As set out in earlier correspondence to the Committee, and
as I reiterated during my oral evidence, securing these flexibilities
for Member States has been my priority, hence my decision to offer
the UK's support. I should be clear that this is not just about
retaining flexibility for the current or any future UK Government
to go further than the Directive in the area of standardised packaging
but also retaining similar flexibilities in some other areas within
scope of the Directive, for example on additives.
"I would also wish to emphasise the UK's position
of leadership around the world on tobacco control. I felt it
very important to be seen to be supporting the progress of the
proposed Directive, of which the Government is broadly supportive.
The use of tobacco remains one of the biggest public health challenges
that we have. Given our reputation for leadership in this area,
I was very concerned about what the longer-term consequences for
effective tobacco control across Europe in the future would have
been, had the UK not taken a supportive approach at EPSCO."
1.10 The second issue concerns the delay in responding
to the Committee's first Report of 30 January, for which the Minister
offers her apologies and adds:
"The Government agreed its position on almost
all of the provisions in the proposal on 23 May 2013. I subsequently
wrote to the Committee on 3 June 2013, on all aspects of the proposal
other than packaging and nicotine-containing product (NCP) provisions,
on 11 June 2013, on NCPs, and on 17 June 2013, requesting a scrutiny
waiver. I acknowledge that those letters arrived with the Committee
in the days and weeks leading up to the EPSCO meeting, which is
regrettable, but without an agreed Government position on the
Directive, it was not possible for me to write any earlier with
any great clarity.
"I understand that throughout the period from
January to June 2013, Department of Health officials were in very
regular contact with the Committee clerks, explaining the delay
in securing cross-Government clearance, providing updates on progress
and discussing handling. The Department's officials agreed with
the Committee clerks that, on balance, it may be preferable to
await cross-Government clearance before I wrote to you again.
At the oral evidence session, the Committee made it clear that
it would have preferred me to provide more frequent updates on
progress in relation to the Government's position on the Directive.
With hindsight, I can see that this may have been preferable,
even when there was little progress to report and I am happy to
commit to writing earlier in the future."
1.11 The Minister indicates that she wishes to make
two corrections to the transcript of the oral evidence session
held with the Committee. The first concerns the regulation of
non-tobacco nicotine-containing products, such as e-cigarettes,
which the Minister suggested had "fallen out" of the
draft Directive. She requests the addition of the following footnote
to the corrected transcript:
"In fact, Article 18 of the proposal
for a revised Tobacco Products Directive which addresses nicotine-containing
products remains in the General Approach compromise Council text.
The text foresees all but the very lowest dose nicotine-containing
products (NCPs) being regulated as medicines and appropriate
health warnings for the low dose NCPs under the medicines threshold."
1.12 The second correction concerns the position
of the Lithuanian Presidency and its willingness to take forward
negotiations on the draft Directive if the Irish Presidency had
failed in its attempt to secure a general approach. The Minister
explains:
"We can never be absolutely certain of the voting
intentions of other Member States and another very possible scenario
at EPSCO was that, without the UK's support, a General Approach
would not have been reached at all. The Committee asked me what
I thought was likely to happen to the Directive had that been
the case. While this would not have immediately killed off the
Directive, which I believe will bring important public health
benefits to the UK, it would almost certainly have represented
a serious set-back. It would have re-opened the debate across
all aspects of the Directive, possibly bringing back into debate
provisions which were not in the interest of the UK. It would
also have made it very unlikely that the revised Directive would
have been adopted by Council and the European Parliament within
the terms of the current European Parliament and the European
Commission.
"I am sorry that I did not accurately reflect
the position of the Lithuanian Presidency on the Directive in
my evidence and I would be grateful if a footnote, using the following
wording, could be included in the corrected transcript at an appropriate
place:
'During my evidence, I may have given the impression
that the Lithuanian Presidency was not planning to prioritise
the Directive. I have learned that the Lithuanians are keen
to maintain the excellent progress on the Directive in Council
made by the Irish. The point I was wanting to make about the importance
of agreeing a General Approach was that I considered this to be
vital so that the Lithuanians could pick up a version of the Directive
in Council that had broad agreement from all Member States rather
than one that could be completely re-opened which may have jeopardised
the future of the Directive.'"
1.13 The Minister concludes:
"I will ensure that the UK Government will continue
to seek to prevent a watering down of the Directive, an important
public health measure, in the second half of 2013. I will write
again to the Committee later in the summer setting out the Government's
views on the recent vote in the European Parliament's ENVI Committee,
ahead of the vote in Plenary in the European Parliament and the
trilogue process in the autumn."
Conclusion
1.14 We note that the general approach agreed
at the EPSCO Council on 21 June was based on an expression of
Member States' voting intentions rather than the outcome of a
vote. We accept, on that basis, that the Irish Presidency would
have been two votes short of the threshold of 255 votes required
to secure a qualified majority, had the Government indicated that
it intended to abstain, and that UK support was therefore decisive
in reaching an agreement on the Presidency compromise text.[2]
1.15 As the Minister herself acknowledges, "we
can never be absolutely certain of the voting intentions of other
Member States", and it would be fruitless for us to speculate
on what might have happened if the UK had abstained. The Minister
suggests that re-opening the debate on all elements of the draft
Directive would have represented a step backwards, but it is also
possible that more prolonged debate and public scrutiny might,
for example, have prevented the reduction in the size of health
warnings from 75% in the Commission's original proposal to 65%
in the Council's general approach. In any case, we consider the
Minister's suggestion, in her oral evidence, that the draft Directive
would have "fallen" or been "lost for a very long
time" to have been somewhat rash. We welcome the correction
she has made to reflect the position more accurately. We also
note the correction she has made to her oral evidence on the status
of non-tobacco nicotine containing products (NCPs) in the draft
Directive.
1.16 The Minister alludes in her letter (and in
her oral evidence) to the delay in securing cross-Government clearance
for the UK's negotiating position on the draft Directive. We
are in no doubt that this delay has significantly impeded our
ability to scrutinise the Government's approach to the draft Directive
and is the reason why we were unwilling to lift our scrutiny reserve.
Whilst we accept the Minister's apology for the delay, and her
undertaking to write sooner in the future, we also wish to underline
the need for Government to engage with the substantive issues
at a much earlier stage in the scrutiny process. Sending us a
holding response which does not address the concerns we have raised
is unlikely to advance our consideration of important legislative
proposals.
1.17 In light of the agreement reached by the
Council, we are recommending the draft Directive for debate in
European Committee C. Before the debate takes place, we ask the
Minister to provide a summary of the key changes sought by the
European Parliament, and the Government's position on them.[3]
We think that the debate should consider how effective the draft
Directive is likely to be in discouraging tobacco consumption
by young people, tackling illicit trade (through the inclusion
of new provisions on the tracking and tracing of tobacco products
across the supply chain) and ensuring appropriate regulation of
the rapidly expanding e-cigarette market.
1 See http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/uc591-i/uc59101.htm. Back
2
The qualified majority threshold has been raised to 260 votes
following the accession of Croatia to the EU on 1 July 2013. Back
3
We understand that the September plenary session of the European
Parliament will vote on the amendments which various Parliamentary
Committees have proposed to the draft Directive. Back
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