With smoking prematurely killing almost a quarter million Europeans a year, cigarettes are the top cause of preventable death in the EU. The fight against smoking is a priority and revision of the Tobacco Products Directive (TPD) has potential to save lives. However, the process that brought us to this point has been a tragedy of errors and the TPD does more harm than good.
The TPD continues the EU-wide ban on snus, the least harmful form of tobacco. As a result, European smokers outside of Sweden are denied the dramatically lower and well-documented tobacco-related disease rates for Swedes, where snus is popular.
As usual, bad policy is often preceded by flawed process. It isn't just 'Dalli gate'. That case was just a symptom of the broader lack of transparency and betrayal of regulatory procedures meant to ensure sensible policy making that benefits citizens.
Central elements of the consultation process have been disregarded in a rush to produce a directive that blindly punishes tobacco users, rather than achieves the more nuanced goal of improving health.
The proposal relies on cherry-picked conclusions from the expert consultation summary, rather than the actual scientific findings. For instance, the 2008 report concluded that while complete tobacco abstinence is best, pragmatically, "substitution of snus for smoking may be beneficial to individual and public health". Instead, the Commission simplistically concluded that snus is not 100% safe and should thus be banned. The report also found snus use in Sweden is not a significant predictor of future smoking. Yet the proposal justifies a ban based on the unsupported hypothesis that snus is a gateway to smoking.
The DG received over 85,000 comments, more than in any other consultation. According the the DG's analysis, a "vast majority" wanted to see the ban lifted, EU-wide," and "several respondents were concerned that the Commission's approach was too simplistic and overstated". Commenters pointed to the scientific evidence that showed that "smokeless products were much healthier alternatives to smoking".
Yet, instead of taking into account the overwhelming response, the DG delegitimised public opposition, painting comments as the result of citizen "mobilisation campaigns" organised by tobacconists. You've got to ask yourself: if pro-ban activists had been effective at encouraging the opposite response, and in such strong numbers, would the DG have treated that exercise in democracy as dismissively?
Interservice consultations provide a last chance for vetting a proposal for unintended consequences throughout society. So it is mind-boggling that President Barroso instructed DGs not to issue a negative opinion so the proposal could sail through the process without internal criticism.
Instead of the snus ban, the EU should consider adopting a coherent framework taking into account the varying risk of differing tobacco products. Regulations should reflect the continuum of risk of different products. Lower risk products should be less restricted, not the other way around, as the current proposal demands.
For a process bogged down over an 18-month period, that Barroso became so suddenly intent on rushing to publish Dalli's tainted proposal in an unusually quick 12 days, raises troubling questions about the credibility of the process and the proposal itself.
The mockery of the consultation process deprives the TPD of credibility and legitimacy. And the TPD deprives European smokers of a less harmful tobacco alternative to cigarettes. The proposal even bans e-cigarettes, a clearly less harmful alternative that appeals to many smokers.
Sadly, regulators tend to object to innovative market-generated solutions which have potential to address problems like smoking that governments have been ineffective at solving. After all, market success undermines the justification for the vast authority citizens give governments.
This is one reason safeguards like the consultation process are used; because they cause regulations to be developed in a more deliberative, democratic and coherent manner.
By short-circuiting the process, the Commission has proposed regulations that undermine, rather than protect, public health and fomented distrust of an otherwise sound policy making system.
(*) Jeff Stier is a senior fellow at the National Center for Public Policy Research in Washington DC, and heads its Risk Analysis Division. Dr Karine Caunes is a scholar in residence at the Columbia European Legal Studies Center and is the associate editor of theEuropean Journal of International Law .