Continued battle: can the Netherlands really enforce e-cigarette flavour ban?

The Netherlands Food and Consumer Product Safety Authority (NVWA) is the Dutch agency, an independent part of a self-managed ministry, whose core task is to supervise companies and institutions for compliance with laws and regulations. For instance, this authority also oversees compliance with the ban on the sale of flavoured vapes. That, according to Buijsen, is where a tricky point lies. "It is far too much work for the NVWA to monitor and, in the case of a foreign company, it is even impossible to fine it", the professor said.

Undermining the Dutch prohibition

Late last year, Martin Buijsen wrote that neighbouring countries, which do not have such a ban on flavourings, have a negative impact on the effectiveness of the Dutch ban. Moreover, Buijsen explained that it is legally impossible to attach legal consequences to urging Dutch consumers to stock up on the goods just across the border and that it is necessary for surrounding countries to be on par with Dutch policy. "If the rules are different in Belgium or Germany, you can still order online in those countries. Producing on Dutch soil is prohibited and having sales outlets on Dutch soil is prohibited, but what the Netherlands cannot do is prevent sales from abroad." Indeed, the point according to Buijsen is that public health and healthcare are not really topics for the European Union to address. "The European Union only takes that on when the member states view a health problem more or less in the same way. That is not the case for the time being."

With the Netherlands fighting the battle alone for now, the Ministry of Health, Welfare and Sport is expanding the powers for the NVWA. It is also looking at whether fines can be increased for violating the ban.

6 November 2024, District Court of The Hague handed down its judgment in the proceedings on the merits brought by major vaping and tobacco producer British American Tobacco (BAT) against the Dutch state because it considers the flavour ban unlawful.

BAT versus the State
BAT claimed before the court in civil proceedings that the flavour ban on e-cigarettes be declared unlawful and non-binding, because the ban would violate the free movement of goods within the EU, the ban would not be proportionate and would not contribute sufficiently to public health, the implementation period was too short and the publication of the ban was too late, and that the ban would violate European and international regulations, such as the Tobacco Products Directive and World Trade Organisation rules.

In contrast, the State argued that the flavour ban was necessary to protect public health, especially for young people. Indeed, sweet flavours would encourage young people to use e-cigarettes, which in turn could be a stepping stone to regular smoking. In addition, the State argued that the ban is in line with the goal of a smoke-free generation by 2040. 

The court recognised in the ruling that the taste ban infringes the free movement of goods. However, this infringement can be justified if the ban is necessary and proportionate to protect public health. The judges ruled that the State has sufficiently demonstrated that the ban serves a legitimate purpose and is suitable to discourage young people from starting smoking. It is also sufficiently established that e-cigarettes are harmful and that flavours, especially sweet ones, attract young people. This justifies the flavour ban.

The flavour ban was also found to be proportionate. Although the ban may have adverse effects on adult somkers trying to stop, such as relapse to regular cigarettes, the interests of public health and the protection of young people outweigh the impact.

BAT's suggestion that less intrusive alternatives were possible, such as exclusive sales in speciality shops, was rejected. The court found that the State was allowed to opt for a total ban on flavours within its policy space. Moreover, data showed that hundreds of tobacco-flavoured e-cigarettes were still available, which refuted that the ban amounted to a de facto ban on e-cigarettes.

Why education is the key to success

Buijsen explains that the ban is quite effective because some entrepreneurs will weigh up the chances of being caught and may stop as a result. Buijsen continues: "Other sellers will no longer dare to sell online. A flavour ban is better than doing nothing at all." A tougher remedy will not solve the problem either, according to the professor, because there are all kinds of snags in, for example, a general ban. This is partly because the Dutch vaping rules fall under the European Tobacco Products Directive and European countries cannot independently decide to ban vaping. According to Buijsen, current efforts should focus on: "making young people more resilient to addictive substances".