TPD2's legality is iffy for a number of other reasons too – see the PDF of the judicial referral to the ECJ, where the case is concisely summarised in par 62:
The EU legislature appears to have proceeded under an implicit assumption that [e-cigarettes] pose an equivalent risk to public health and should therefore be regulated. The assumption is significantly flawed.
As Public Health notes, in its understated way: "The TPD certainly raises the barrier for bringing EC products to market or continuing to market existing products, and will undoubtedly constrain the EC market."
The impact on British vapers is likely to be significant, because the choice of regulator of e-cigs in the UK is most likely to be the MHRA, which is part-funded by the pharmaceutical industry. (The taxpayer pays for the regulation of equipment, while pharma pays fees for the regulation of medicine.) The drugs industries' own inferior NRT products (such as gum and patches, or varencline-based drugs such as Champix) have been comparatively ineffective in reducing smoking. What's the betting that the MHRA's interpretation of the directive becomes extremely demanding – demanding enough, say, to drive suppliers out of business?
We can already guess what regulation might look like, for the UK has had an opt-in regulatory regime for vaping suppliers for some time. This scheme permits a supplier to qualify their wares as medical product. In five years only one e-cigarette product – from tobacco giant BAT – has gained approval. As Public Health notes, the cost of bringing your manufacturing up to meet this standard costs millions. A startup selling juice or a new atomiser can't hope to find such funding.
With cross border trade prohibited, e-cigarettes would rapidly become a black market product, leading the surreal situation of police and customs agencies being required to "bust" traffic in the most effective smoking cessation technology the UK has ever seen. As if they haven't already got anything better to do. ®
E-cigarettes are already restricted in Wales, and banned at the BBC. But what on Earth compels people to do this?
Perhaps there's indignation and envy amongst the health professionals that a successful technology became widely adopted without their involvement, making them look redundant? Perhaps they simply can't stand people enjoying nicotine?
"Moral indignation towards pleasure-giving ‘vices’ may well be a motivation for some of those working in the tobacco control industry," suggests Chris Snowden. What makes nicotine vaporisers effective – and the gums and patches ineffective – is that one is pleasurable, and the other is not.