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Thursday
Apr122018

Bad day for advocates of choice

Well, that was sadly predictable.

Following a challenge by Swedish Match, the Advocate General of the European Court of Justice today announced that, in his opinion, the EU-wide ban on snus is ‘valid’.

Can't say I was surprised.

The ECJ has yet to make a final decision on the matter but it’s rare, apparently, that advice from the Advocate General is ignored so don't expect any change to the status quo.

Truth is, we’re living in a risk averse age and on issues like this judges and politicians rarely stray from an anti-tobacco consensus.

Prohibition (especially when the product is banned already) is much easier to support than a more radical (and liberal) approach to consumer choice.

The Swedish Match challenge reminds me of an earlier case concerning tobacco vending machines. This 2011 Forest press release sums it up:

The UK Court of Appeal has dismissed an appeal over legislation to ban sales of tobacco from vending machines in the UK.

The ruling upholds a decision by the High Court in December 2010 to reject a legal challenge by Imperial Tobacco's cigarette vending machine subsidiary Sinclair Collis.

Two of the three Court of Appeal judges agreed that the High Court's decision should be upheld. The view of the third judge was that a ban on tobacco vending sales was disproportionate.

The Master of the Rolls, Lord Neuberger, admitted the DoH's arguments were "not very convincing" [my emphasis] but said tobacco's health risks meant courts should not interfere with Government restrictions.

He added that given the health risks posed by tobacco, "virtually any measure [my emphasis] which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere".

Although statistics used by the DoH to justify the ban were "little more than guesses" [my emphasis], Lord Neuberger said they did "not appear fanciful" and the ban was "lawful" and "proportionate".

Imperial won the original challenge but the Labour government appealed and the Appeal Court judges voted 2:1 in favour of upholding the ban.

According to the presiding judge, if the ban saved a single life [my emphasis] he had to support it.

For me that comment is as ridiculous today as it was then but the thinking behind it is instructive because it explains many of the paternalistic laws that have been passed since the introduction of the seat belt law in (I think) 1982.

The ban on snus makes even less sense when the product is evidently 'safer' than other products that are already on the market, but when did common sense dictate legislation?

Of course I applaud Swedish Match for challenging the ban but I would like to have seen the court case accompanied by a high profile, consumer-driven PR campaign to raise awareness of the product and the issues.

As I suggested a couple of weeks ago, it's important to win over public opinion and to win that battle you have to engage with more than a handful of like-minded people. You've also got to have a loud voice in the media and if you can't get it through editorial you buy it through advertising and advertorial.

Yes, it costs money – a lot of money – but legal challenges don't come cheap either. It's not one or the other, the battle has to be fought on both fronts.

Apart from a handful of articles by Chris Snowdon and Clive Bates, however, consumers and advocates of snus have been largely invisible in the UK.

I'm not having a go at anyone, by the way. I know how hard it is to organise any sort of campaign, let alone motivate people to support a niche product like snus.

Nevertheless the PR battle was there to be fought and I don't understand why so little effort has been made to challenge the ban in the court of public opinion.

I don't underestimate the difficulties. Snus may be a genuine harm reduction product but it's not part of British culture in the way it is in Sweden or Norway.

In fact, I'd wager that most people in the UK have never heard of snus and the majority of those that have (including smokers) are dubious about its appeal.

Anecdotally, in my experience, most people find the idea of a moist tobacco pouch in the mouth quite unpleasant. I don't know why, given the popularity of chewing gum (for example), but there it is.

Meanwhile opponents of snus are quick to raise the grim spectre of oral cancer. The risk may be small, as advocates claim and evidence seems to suggest, but images of that horrible disease are pretty gruesome and, once you've seen them, hard to forget.

What I'm saying is, if the advocates and manufacturers of snus want the ban to be lifted it will take more than a legal challenge.

Without an educational, well-funded, consumer-driven PR campaign that gives equal weight to choice and pleasure, harm reduction and risk, the sale (if not the consumption) of snus will almost certainly remain illegal in Britain.

Even then the odds on legalisation are small but, post Brexit, why not give it a go?

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Reader Comments (5)

Yeah the Advocate General just exists to do whatever they are told to do by their paymasters and the ECJ is exactly the same. The document is a sick joke with some token attempt to appear to justify it all by ignoring real world evidence and rely on good old ideology and rhetoric.

Thursday, April 12, 2018 at 19:45 | Unregistered Commentervereybowring

I agree this was sadly predictable. It also shows that in tobacco-related issues the influence of public opinion often outweighs scientific data and legal precedent. This demonstrates the power of persuasion and propaganda that has been marshaled by he tobacco control cartel. This also reinforces the need for pro-choice advocates and especially smokers to stand pup and get vocal against this systematic persecution.

Thursday, April 12, 2018 at 23:04 | Unregistered CommenterVinny Gracchus

While I deplore the ECJ's preliminary decision for ignoring the aged old premise that everyone is entitled to go to hell in a handcart of their own choice and if people want to suck on a waste of good tobacco then that should be their business alone, I find myself experiencing some schadenfreude (that's German for 'Schadenfreude' btw) as the snus advocates seem to be following the vapers playbook of 'harm reduction' and even claiming that lives will be lost as a result of this pre-judgement.

Sorry baccy chewers, snorters and those who like their tobacco converted to a homeopathic fluid before heating but 'free choice' can only be won by not throwing others,who don't share your particular choice of delivery system, under the big red bus of a million lies.

Thursday, April 12, 2018 at 23:26 | Unregistered CommenterThe Blocked Dwarf

I agree with the blocked dwarf. It always made sense to me that in order to save everyone's choices, we must all fight for the most attacked, smoking tobacco and cigarettes, and then the antis get no further with any bans .

Screeching that one choice is better than another or God Forbid, more healthy, just means the bullies in public health and their health obsessed stooges get to pick us off one at a time.

I am just at the point now where I am watching it happen and the lot, from ecigs to snus, sugar and alcohol, begin to fall like dominoes.

Friday, April 13, 2018 at 11:58 | Unregistered Commenterpat nurse

It’s the old “First they came for .... ” theme, though, isn’t it, Pat? The fact is that one of the basic lessons learned from the anti-tobacco movement was that before you can really go to work on a consumer group and get away with it, you’ve got to do whatever you can within your power to make that consumer group quite a significantly small minority in pure numbers. I don’t know what the “accepted” ratio is, but I’d imagine it’s probably around 60/40 percent, because, first and foremost, you can then start every piece of your propaganda by saying that you are “speaking on behalf of” or “seeking to protect” the majority of the public; but secondly – and perhaps more importantly – the anti-smoking movement discovered that a hard fact of human nature is that, basically, most people don’t give a flying fart about anything which doesn’t affect them personally. Not really. One or two of them might witter on about how much they “care” about this group or that group, to which they don’t happen to belong, but when it comes to actually doing anything which involves sticking their heads even slightly above the parapet or – perish the thought – actually doing anything about it, they’ll vanish into the night like phantoms.

Hence the current push to get everyone “cutting down” on alcohol consumption. It’s only “cutting down” at the moment, of course, but we all know where that will lead, don’t we? Ever-decreasing weekly guidelines, ever-increasing hype about the “associated” illnesses and – the holy grail of them all – the poor little “innocent bystander” who is also being harmed. They’re not there yet, but watch this space.

Which, of course, is the main reason why vapers and drinkers and sugar-eaters and salt-lovers and, yes, snus-users (snusers??) - if they just took a few short moments to cast their mind back not so many years (it’s within living memory for most people, after all) to the way in which smoking was demonised and artificially morphed from a perfectly normal and acceptable habit into the worst evil ever to have affected the world - would see how it first started by bringing smoker numbers down using the very same tactics as they’ve now started using against these newly-emerging “enemies of health.” And they would see, too, that by joining forces with smokers and all the other competing “new sinners,” our numbers would swell and we would all then be “the majority” – thus closing off to the new prohibitionist groups (and the old ones) their most favoured, and palatable-sounding, opening gambit for each and every bit of their propaganda and junk research stats.

They won’t see it, of course, because it would involve a great loss of face to suddenly have to start working with a group that you’ve hitherto greatly enjoyed criticising and looking down on, which in essence means that their own indulgences are doomed, too, no matter what they, as isolated, self-protectionist little groups, try to do or say. But it would work, if they could only swallow their own pride. Silly them.

Saturday, April 14, 2018 at 3:49 | Unregistered CommenterMisty

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