A generational ban on the sale of nicotine products is not possible now for legal and practical reasons, writes outgoing State Secretary Tielen to parliament. However, the legal argument does not hold up, says lawyer Steven Baylis, and 60,000 doctors argue for the introduction of a generational ban. 

By the web editors

Legal and practical objections stand in the way of the introduction of a generational ban on the sale of tobacco and other nicotine products in the Netherlands. This is what outgoing State Secretary Judith Tielen (Prevention, VVD) writes in a letter to the House of Representatives about the progress of the vape and tobacco policy here. Under European regulations, such a national ban is only possible if there is a specific situation in a member state, which there is none, according to Tielen. The proportionality of the measure is also difficult to substantiate, and the measure would probably increase cross-border purchases.

With this answer, Tielen responds to the motion submitted by representatives Harmen Krul (CDA) and Daniëlle Jansen (NSC) during the debate on the citizens’ initiative Nicotinee, in which they asked the government to investigate the possibilities of a generational ban on the sale of nicotine products. Nicotinee was debated in parliament after the citizens’ initiative had gathered over 50.000 signatures (today 76.000). The initiative proposed a generational sales ban for everyone born from 2012 onwards. During the debate, Tielen’s predecessor Vincent Karremans (VVD) already expressed his scepticism about those possibilities. The fact that the outgoing cabinet states that Nicotinee is not possible now therefore does not come as a surprise.

Prohibition with transitional period of human life

Tielen writes that the generational sales ban, whereby the age limit for the purchase of tobacco would be raised by one year every year from 2030 on, in fact amounts to “a total ban on tobacco products and related products with a transition period of a lifetime.” And although the European Tobacco Products Directive (TPD) does not regulate age limits and “Member states are therefore free to take measures in that context, a de facto total ban seems to be at odds with the TPD,” according to the letter.

In this regard, Tielen refers to Article 24(3) of the TPD, which provides that a Member State “may prohibit a certain category of tobacco or related products on grounds relating to the specific situation in that member state, provided that this is justified by the need to protect public health, taking into account the high level of protection of public health established by this Directive.”

This exception is not granted because, according to Tielen, “there is currently no specific situation in the Netherlands compared to other member states.”

No total ban, products remain for sale

Jurist Steven Baylis, a former fellow of the School for Moral Ambition, disagrees with this view. Baylis previously concluded in a report he prepared for the European Respiratory Society that a generational sales ban can legally be introduced by individual member states. In response to Tielen’s letter, he now says: “I fundamentally disagree with the statement that a generational sales ban should be seen as a total ban to which Article 24 of the TPD would apply. It is not a total ban, because the products on the market remain available to people born before a certain limit, in the case of Nicotinee 2012. The number of people in the market will shrink every year, but the products will remain available.”

First reduce youth smoking

Tielen also believes that the proportionality of a generational sales ban is difficult to substantiate. “In order to achieve a smoke-free generation, it is important that the number of young people smoking and vaping is first significantly reduced. To this end, a broad package of (less far-reaching) measures has been and will be introduced before a total ban can be considered.”

Tielen also fears that a sales ban will lead to more cross-border purchases of tobacco and related products. Measures must therefore come from Brussels, and Tielen refers to the letter that her predecessor, together with eleven other member states, sent in March to the European Commission urging a review of European regulations.

Lawyers do see opportunities

In addition to Baylis, other lawyers have previously concluded that individual member states can indeed introduce a generational sales ban under existing European regulations. In January, Professor of Empirical Study of Law and Local Government at the University of Groningen, Albertjan Tollenaar, concluded with students that such a ban is legally feasible. Product rules are allowed if public health requires it, they argue. After all, the government has a duty to protect public health based on the constitution and international treaties.

‘Nicotinee will remain possible in the future’

Wanda de Kanter, chair of Youth Smoking Prevention and one of the initiators of the citizens’ initiative Nicotinee, remains positive. “In itself, I don’t think the tone is very negative,” she says. “There are still openings in the future. There must first be a significant decrease in the number of young people under 18 who smoke or vape. Now such an endgame would certainly not be possible given the numbers. In addition, the TPD will be revised at some point and there is a strong tendency towards an endgame in the EU.”

At the beginning of this month, all 60,000 doctors in the Netherlands appealed to political parties to include Nicotinee in their election programs for the upcoming elections on 29 October.