A report by the European Respiratory Society (ERS) states that a generational sales ban on tobacco products can legally be introduced by individual EU member states, without the EU being able to stop it. The report also offers a step-by-step plan for this.

By the web editors 

In principle, EU member states can introduce a generational ban on the sale of tobacco products at national level. That is the conclusion of a legal study commissioned by the European Respiratory Society (ERS), which was published last month. The author, former fellow of the School for Moral Ambition Steven Baylis, presented his findings last week in Dublin during the Global Tobacco Endgame Summit of Action on Smoking and Health (ASH) on the eve of the World Conference on Tobacco Control (WCTC).

The report Adoption of Tobacco Endgame Policies in the EU: Can Member States introduce a generational sales ban? starts with the words “The answer is yes”. The power to introduce a generational ban on the sale of tobacco products “lies firmly within the competence of the Member States.” With such a ban, tobacco products may never again be sold to anyone born after a certain date. To achieve this, the age limit for the purchase of tobacco and related products will be raised by one year every year.

The United Kingdom, no longer an EU member, currently has such a generational sales ban in the works for everyone born from 2009 onwards. The Dutch government is investigating the possibilities for the introduction a generational ban, after the discussion of the citizens’ initiative Nicotinee in the House of Representatives. Nicotinee proposes a ban on the sale of all nicotine products to anyone born from 2012 onwards.

Much support among young people

A ban on sales is different from a ban on the possession or use of tobacco and other nicotine products, as opposed to the American alcohol ban during Prohibition, Baylis explains in a recent interview. The aim is to prevent young people from starting with cigarettes or other nicotine products, so that they can be spared a deadly addiction.

Baylis not only argues that there are strong legal foundations for introducing a generational sales ban, but also outlines a concrete step-by-step plan for how governments could best achieve this.

According to the report, there is a lot of support among young people for endgame strategies that can end the tobacco epidemic for good. About seven out of ten adolescents and young adults would be in favor of it. The ERS sees this public support as a sign that now is the right time to introduce such a policy. According to the report, this is already possible, because member states do not have to wait for the EU for approval, but have the power to introduce a generational ban themselves. The report states: “Member States have primary competence for the responsibility for health protection and in determining domestic sales arrangements and applicable age limits.” Earlier, students from Groningen University came to the same conclusion.

The right to health

The primary legal basis for the ban is therefore the fundamental right to health, that is enshrined in a whole list of international treaties that almost all EU member states have already signed. Since Member States are responsible for guaranteeing this right, it is only necessary to demonstrate that the sale of tobacco products is incompatible with this right to “the highest attainable standard of physical and mental health”, as it is expressed in many treaties. According to Baylis, this is very realistic. As the Danish Institute for Human Rights (DIHR) wrote, “There can be no doubt that the production and marketing of tobacco is incompatible with the human right to health.” After all, the tobacco industry is the only industry whose product, when used exactly as intended, kills about half of its regular consumers.

The power lies with the member states

According to Baylis, there is therefore no barrier within EU law to introduce such a sales ban on the basis of public health, because it can be demonstrated that this policy is both proportionate and necessary to achieve a legitimate goal. The policy also does not place restrictions on the marketing of tobacco products, but only limits the size of them, as the number of legal buyers will gradually decrease. Raising the age limit to 21 years reduces the number of buyers in a similar way.

What are the steps to get there?

According to Baylis, existing case law offers examples for member states on how best to introduce a sales ban. The first step would be to clearly formulate the purpose of the law. The EU itself has already formulated the endgame goal in the Beating Cancer Plan to get below 5 percent tobacco use by 2040.

It would then be necessary to demonstrate by means of scientific modelling that the existing anti-tobacco policies that have already been introduced or are about to be introduced are inadequate to achieve this ultimate goal and that a ban on sales would be both more effective and less restrictive for trade.

Finally, the proposal should include continuous monitoring of the impact of the legislation after its introduction, in order to gather sufficient evidence of its effectiveness and any side effects that can then be used in expected lawsuits from the industry.

Member States can potentially make a mistake by proposing a sales ban too quickly without having sufficiently implemented or complied with the measures recommended in the WHO Framework Convention on Tobacco Control (FCTC), as it will be difficult to prove that a sales ban was proportionate and necessary.

A smoke-free generation

According to Baylis, a sales ban can realistically lead to a smoke-free generation where less than 5 percent of people still smoke. If it becomes difficult enough for young people to get tobacco, there will be far fewer addictions, and once over the age of 25, almost no one starts smoking anymore according to scientific research. Although the percentage of European young people who start smoking is decreasing, it is still far too high at 21 percent.

That is why Baylis concludes that the European Union should put public health first and support member states that would like to impose a generational ban on the sale of tobacco products. At the very least, the EU should not hinder these member states in their efforts and create barriers by wanting to put the single market above public health.