NL Niederlande

Re: setting rules on additives that create flavours other than tobacco flavour in liquids containing nicotine, nicotine-free liquids and other e-cigarette components

Amendment of the Tobacco and Smoking Products Order for regulation of e-cigarette flavours

The draft amendment to the Tobacco and Smoking Products Decree was notified to the European Commission on 29 September 2021, in accordance with Article 5(1) of Directive (EU) 2015/1535. This did not give rise to any comments from the European Commission or any EU Member State. This amendment to the Tobacco and Smoking Products Decree, which is yet to be published, is intended to make e-cigarettes less attractive by

banning e-cigarette flavours other than tobacco. Article 2.4(2) (new) of the Tobacco and Smoking Products Decree states that it is not permitted to use flavouring additives other than those designated by ministerial orderas ingredients in liquids containing nicotine, nicotine-free liquids or other e-cigarette components. This draft Ministerial Order exercises the above option by including an exhaustive list of 16 flavouring additives in Article 2.12 of the Tobacco and Smoke Products Order which may be added to liquids for and other components of e-cigarettes, which only allows flavouring additives that provide a tobacco flavour. In addition, Articles 3.9 and 3.10 prohibit packages or accompanying leaflets indicating flavouring additives that do not appear on the exhaustive list. This is to prevent giving the impression that an e-cigarette features a flavour other than tobacco.

These provisions may be regarded as technical regulations.

A mutual recognition clause is not provided. By virtue of Article 34 of the TFEU, enforcement of this legislation is justified by an overriding reason in the public interest, namely the need to protect public health. Member States are free to determine their level of protection. The Netherlands opts for a very high level of protection, to achieve a smoke-free generation in 2040, with only 5% of adults still smoking. This high level can only be achieved by means that include new legislation.