Eva Rippe, LLM Student Public International Law, University of Groningen, e.m.rippe student.rug.nl.

Relevant legal provisions

Understanding novel tobacco products

In recent years the tobacco industry has popularized novel products that feed individuals’ desire for nicotine intake. Introduced in the 1980s, especially heated tobacco products (HTPs) and e-cigarettes have become extremely popular in the past 10 years.^[1]

HTPs are smoking tools that contain an element of tobacco. They typically consist of the electronic heating element, holding a tobacco stick which is electrically heated to generate aerosol. However, they do not burn the tobacco, but heat it at a much lower temperature than conventional cigarettes.^[2]

E-cigarettes which are most commonly referred to as ‘vapes’ are non-tobacco products disposing nicotine without an element of tobacco.^[3] They “comprise a battery-powered heating element that is designed to vaporize a solution (“e-liquid”) made of propylene glycol and/or glycerine and frequently flavouring and nicotine. The vapour is then inhaled by the user.”^[4] E-cigarettes can contain nicotine (Electronic Nicotine Delivery Systems (ENDS)) but are also sold without nicotine (Electronic Non-Nicotine Delivery Systems (ENNDS)).^[5]

Both of these product types create regulatory challenges: first, e-cigarettes do not contain tobacco^[6] and therefore raise the question whether they are tobacco products. Second, because neither burns tobacco, the tobacco industry claims that they do not produce smoke but rather ‘vapor’,^[7] meaning that regulation on smoking also faces challenges.

The FCTC and novel tobacco products

The WHO Framework Convention on Tobacco Control (FCTC), when adopted in 2003 was intended to cover a broad variety of tobacco products,^[8] but it is not entirely clear which novel products fall under its scope. The FCTC defines tobacco products as “products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing”.^[9] HTPs have been recognized by the Conference of the Parties (COP) as falling within the FCTC provisions due to their tobacco element.^[10] E-cigarettes are less clear, because they do not contain an element of tobacco nevertheless, the COP invites the parties to prohibit or restrict the manufacture, importation, distribution, presentation, sale and use of ENDS/ ENNDS.^[11]

As it is the case for conventional cigarettes, Article 5 FCTC, on general obligations^[12] can be considered most crucial. It requires effective legislation to prevent nicotine addiction, covering both burning and non-burning tobacco products.^[13] Likewise the obligation under Article 5.3 FCTC to protect public health policies from commercial interests of the tobacco industry^[14] can serve as basis to regulate tobacco companies like Philip Morris International (PMI) who heavily promote novel tobacco products, because Article 5.3 FCTC focuses on the overall commercial sectors and not the individual product.^[15]

Nevertheless, the regulation of the products depends on the scientific classification of novel tobacco products. If they are tobacco products under the scope of Article 1(f) FCTC, advertising and dissemination thereof is likely illegal.^[16] The current scientific state dismisses the idea that novel tobacco products function as cessation tool, they rather function as a gateway to nicotine addiction for new smokers.^[17] However, if these novel tobacco products following future research are considered a tool to reduce conventional cigarette consumption, and thereby lower the health harm done by the tobacco industry, strict regulation could hinder stopping the nicotine epidemic.^[18] Nevertheless, further studies on the long-term effects on human health are necessary in the future.^[19] The COP to the FCTC has taken a similar stance, not accepting HTPs as cessation tools^[20] and declared that a switch from conventional cigarettes to HTPs does not qualify as cessation.^[21]

Human Rights and novel tobacco products

The human rights framework regulating novel tobacco products primarily depends on the right to health as is the case for conventional cigarettes, however the specifics depend on the exact classification of the novel tobacco product.^[22]

The right to the highest attainable standard of health is found in article 12 International Covenant on Economic, Social and Cultural Rights (ICESCR). While the Committee has specifically stated that States should “discourage production, marketing, and consumption of tobacco"^[23] with regards to  ENDS there is merely clarification, that product safety must be guaranteed,^[24] and access to adequate information on health and health related matters shall be ensured by the State.^[25] Both aspects are particularly interesting considering the aggressive advertising of cigarette alternatives by tobacco producers towards consumers.^[26] Moreover, subsection (b) demands “the improvement of all aspects of environmental and industrial hygiene.”^[27] This demand for reduction of exposure to harmful substances covers smoke, but also chemicals contained in vapor, directly or indirectly impacting human health.^[28]

Additionally, Article 12(2)(c) ICESCR requires further consideration for novel tobacco products: One the one hand, necessary prevention of diseases requires the State to combat nicotine addiction irrespective of the source through which it is consumed.^[29] On the other hand, if there were novel tobacco products in the future that help smokers to reduce conventional cigarettes consumption, such products could be considered part of medical service and therefore not enhance a disease, but reduce it.^[30] The latter can especially be applied to ENNDS.

Children’s rights

With regards to children's protection from tobacco products, Article 3 of the Convention on the Rights of the Child (CRC) requires States to always keep the child’s best interest in mind when taking actions concerning children.^[31] However, the provisions on information with regard to health under Article 24(2)(e) CRC and Article 17 CRC are much more relevant, concerning appropriate and diverse sources of information. As specified by the Committee, novel tobacco products, which are often particularly advertised towards the youth^[32] shall be regulated in the same way as other tobacco products when aimed at minors.^[33]

The industry of novel tobacco products has used this weak regulation extensively to target minors with advertising. Bright colors and exciting flavors that are barely regulated make these products much more attractive.^[34] Moreover, the industry uses pop culture and social media to attract minors.^[35] Considering that science neither knows all the risks nor the benefits of novel tobacco products, there is much misinformation being presented to specifically minors, violating their right to information.

Environmental considerations

Novel tobacco products, especially vapes containing small batteries, are often constructed in a way that they cannot be recharged so that the entire tool is thrown away after a single use.^[36] Considering that they consist of plastic covers, often lithium batteries and other chemicals, their disposal creates a heavy impact on the overall ecosystem.^[37] Such environmental impact can be regulated under the various human rights relating to a clean and healthy environment (for example, the right to health) as well as environmental law.

Concluding remarks

Founded in definitional struggles, the regulation of novel tobacco products remains inconsistent and often ambiguous to this day. Moreover, the development of new and diverse products that contain different elements and are often sold separately, make adopting effective regulation more challenging.^[38] Nevertheless, basic human rights can and should function as the basis for reducing the use of any harmful tool. It is however very important to increase legitimate science in the field to properly inform regulation that responds adequately to the reality of tobacco-related products and effectively combats the powerful tobacco industry.

[1] Jankowski, Mateusz, et al. ‘New Ideas, Old Problems? Heated Tobacco Products – A Systematic Review’ (2019) 32.5 International Journal of Occupational Medicine and Environmental Health, 596.

[2] ibid, 596.

[3] Gruszczynsk, Lukasz, et al. ‘The FCTC dilemma on heated tobacco products’ (2020) 16.81 Globalization and Health, 5.

[4] Dusautior, Romain, et al. ‘Comparison of the chemical composition of aerosols from heated tobacco products, electronic cigarettes and tobacco cigarettes and their toxic impacts on the human bronchial epithelial BEAS-2B cells’ (2021) 401 Journal of Hazardous Materials, 2.

[5] Korfei, Martina, ‘The underestimated danger of E-cigarettes – also in the absence of nicotine’ (2018) 19 Respiratory Research, 159.

[6] World Health Organization, WHO Report on the global tobacco epidemic, 2019: Offer Help to Quit Tobacco Use (WHO Regional Office for the Western Pacific, 2020) 52.

[7] Gruszczynsk (2020) 5.

[8] ibid.

[9] WHO Framework Convention on Tobacco Control, (2003), 2302 UNTS 166, art. 1(f).

[10] Gruszczynsk (2020) 11.

[11] Conference of the Parties to the WHO FCTC, ‘Electronic Nicotine Delivery systems and Electronic Non-Nicotine Delivery Systems (ENDS/ENNDS)’ (August 2016) FCTC COP/7/11 (COP 7/11); Conference of the Parties to the WHO FCTC, ‘Electronic Nicotine Delivery Systems and Electronic Non Nicotine Delivery Systems’ (12 November 2016) FCTC/COP/7/9 (COP 7/9); Conference of the Parties to the WHO FCTC ‘Progress Report on regulatory and market developments on electronic nicotine delivery systems (ENDS) and electronic non-nicotine delivery systems (ENNDS)’ (27 June 2018) FCTC/COP/8/10 (COP 8/10).

[12] FCTC, art. 5.

[13] FCTC, art. 5(2)(b).

[14] FCTC, art. 5.3.

[15] Jankowski (2019) 596.

[16] Russel, Andrew, et al. ‘Means and ENDS – e-cigarettes, the Framework Convention on Tobacco Control, and global health diplomacy in action’ (2016) 31.1 Global Public Health, 93.

[17] S. Gallus, et al. ‘Use of electronic cigarettes and heated tobacco products during the Covid-19 pandemic’ (2022) 12.1 Scientific reports, 2 and S. Gallus, et al. ‘Eletrocnic Cigarette Use in 12 European Countries: Results from the TackSHS Survey’ (2023) 33.6 Journal of Epidemiology, 277.

[18] ibid.

[19] Gruszczynsk (2020) 3.

[20] Secretariat of the WHO Framework Convention on Tobacco Control, ‘Comprehensive report on research and evidence on novel and emerging tobacco products, in particular heated tobacco products, in response to paragraphs 2(a)–(d) of decision FCTC/COP8(22)’ (FCTC/COP/10/10, 19 May 2023)

[21] Secretariat of the WHO FCTC, FCTC/COP/9/21 ‘Report of the Ninth Session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control’ (WHO, 30 December 2021) 8-9.

[22] Gispen, Marie and Veraldi, Jacquelyn, ‘A Human Rights Approach to the Regulation of Electronic Cigarettes’ in L Gruszczynski (ed), The Regulation of E-cigarettes: International, European and National Challenges (Edward Elgar Publishing 2019) 99-100.

[23] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health (Art. 12). UN Doc E/C.12/2000/4 (2000) para 15.

[24] ibid, para 42, 55.

[25] CESCR General Comment 14, paras 11, 34.

[26] Bialous, Stella, et al. ‘Heated tobacco products: another tobacco industry global strategy to slow progress in tobacco control’ (2018) 27 Tobacco Control,111 and Jankowski (2019) 622.

[27] International Covenant on Economic, Social and Cultural Rights (adopted 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art. 12(2)(b).

[28] ICESCR, art 12.2(b); CESCR GC 14, para 15.

[29] Mishra, Aseem, et al. ‘Harmful effects of nicotine’ (2015) 36.1 Indian Journal of Medical and Paediatric Oncology, 24–31.

[30] ICESCR, art 12.2(d); CESCR GC 14, para 17.

[31] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) art 3.

[32] World Health Organization, ‘WHO Report on the Global Tobacco Epidemic, 2021: Addressing new and emerging products’ (World Health Organization 2021) 5, 23.

[33] CRC Committee, ‘General Comment No 4’ (1 July 2003) UN Doc CRC/C/GC/20023/4 para 21.

[34] White, David, et al. ‘Why and how should children be protected from the deluge of vaping related media and marketing overexposure?’ (2023) 19.4 Breath, 5.

[35] ibid, 5-6.

[36] Bauer, Simon, ‘Disposables’, (2023) in H. Stöver Die Zigarette liegt in den letzten Zügen. Alternative Formen der Nikotinaufnahme (Fachhochschulverlag, 2023) 185.

[37] Green, Dannielle, et al. ‘Disposable e-cigarettes and cigarette butts alter the physiology of an aquatic plant Lemna minor (Lemnaceae)’ (2023) 892 Science of The Total Environment, 1.

[38] Lempert, Lauren, and Glantz, Stanton, ‘Heated tobacco product regulation under US law and the FCTC’ 27 Tobacco Control (2018) 119 -122.