The EU regime for e-cigarettes: A rational compromise or regulatory failure?

This article looks at the regulatory framework for e-cigarettes established by the European Union (EU) in its Tobacco Products Directive (TPD). In this context, it argues that overall the EU regime may be regarded as a realistic and reasonable compromise between proponents and opponents of the new technology. The TPD treats e-cigarettes as neither medicinal nor a tobacco product, but rather as a sui generis category that requires its own regulatory response. Although some of its solutions are clearly inspired by traditional tobacco control measures, they have also been modified in order to account for the harm reduction potential of e-cigarettes. At the same time, it also creates mechanisms, such as the notification and reporting requirements, that will facilitate its revision as our knowledge on e-cigarettes develops. Finally, the TPD leaves a certain regulatory space to the EU Member States, allowing them to reflect on particular national risk preferences and providing room for regulatory experimentation within the Union. Consequently, as an overall approach (but not necessarily with respect to its specific obligations), it may serve as a potential regulatory model for other countries, at least until more complete data on e-cigarettes become available.