A change in legislation for vape products

Introduction

During its autumn session, the Parliament has just approved the Tobacco Products and Electronic Cigarettes Act (TPAb), which is based on the European Tobacco Products Directive (TPD). If the law is not opposed, it will be implemented in mid-2023.

Previously, the electronic cigarette had the legal status of a "common object" and was subject to the Foodstuffs Act (FSA). This status of common object allowed the e-cigarette not to be subject to the legislation on tobacco products. By a decision of the Federal Administrative Court of 24 April 2018, Switzerland, under the Cassis de Dijon principle, had authorised the free sale of e-cigs containing nicotine if they were already sold in an EU or EEA member state.  

What's going to change

With the LPTab Act, everything will change. The Federal Council includes the sale of electronic cigarettes with nicotine in the legislation. Good news ? Not really, by assimilating the e-cigarette to tobacco products, although not containing tobacco, the Federal Council will be able to set requirements and restrictions similar to tobacco products.  

In reality, what are we talking about ? Limitations on the sale, advertising, labelling or use of vape products.  

Therefore, the electronic cigarette falls within the scope of the Law on Protection against Passive Smoking. It will now be impossible to smoke in all enclosed public places where smoking is already prohibited. A concession has nevertheless been made to vape professionals. The use of the electronic cigarette will be "authorized in specific areas of specialized shops". It would seem, in fact, complicated to advise and support customers seeking an alternative to tobacco without being able to test the product. But what do we call a "defined area" ? Well, it's basically a smoking room. It’s safe to assume that shops specialising in vaping products will not have the means to finance such zones. So, you’ll have to try the products outside or not at all.   

The new LPTab law sets the sale of ecigarettes at 18 years. It should be mentioned that the representatives of the industry, the Association Romande des Professionnels de la Vape (ARPV), did not wait for this law to become aware that protecting young people was a necessity and, as of 2019, they have banned access to their shops to minors as well as the advertising that could be aimed at them, advertising that will be prohibited under the same conditions as for tobacco products.  

Under the terms of the LPTab, and as is already the case in Europe, the maximum nicotine concentration will be set at 20mg/ml in bottles of maximum 10ml. At a time when climate change is a major issue, opting for the multiplication of plastic packaging to meet this small capacity requirement is an ecological aberration. Moreover, economically, it can only lead to higher prices for the consumer.   

Vape products will be subject to different regulations about warnings and safety requirements, in order to remind people of the addictive potential of nicotine and the absence of long-term studies. This differentiation in the message content for vape products compared to tobacco products can be seen as an implicit recognition of the lesser harmfulness of vaping, which is good news in the fight against tobacco.   

That leaves the taxation issue of vape products. They are currently only taxed under the VAT at 7.7%. The new law will change all that by subjecting the electronic cigarette to specific taxation, in the same way as traditional cigarettes. Again, the Federal Council seems to make a difference by proposing that vape products are taxed less than tobacco products. It seems essential to preserve the status of the e-cigarette distinct from that of the traditional cigarette, and even to encourage smokers to turn away from tobacco, thanks to financial attractiveness through more advantageous taxation.  

Vaping : the most effective smoking cessation tool

Out of 36 European countries, Switzerland is second to last in the implementation of measures to regulate tobacco consumption. Today in Switzerland, only patches, chewing gums, inhalers and other nicotine tablets are offered as part of a smoking cessation program. A different regulation from that of tobacco products must be put in place so that ecigs can remain a possible option in quitting smoking. And why not, like in the UK, consider vapes on medical prescription as a real tool for risk reduction.  

According to Jean-Felix Savary, General Secretary of the Groupe romand d'étude des addictions (GREA), "with vaping, we can significantly reduce the damage caused by tobacco". In Switzerland, the number of tobacco smokers has not dropped in 10 years, the health costs exceed 214 million francs per year, and there are still 9500 people who die from tobacco. It's time for a change ! 

It is necessary to legislate on the population’s protection, and in particular the protection of young non-smokers, but the regulation should be differentiated and adapted to the harmfulness and usefulness of the products.  

Under the pretext of establishing a precautionary principle for vaping products, the tools of a policy to reduce the risks of smoking should not be minimised.