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Despite pushing back in November for regulation of electronic cigarettes as pharmaceutical products, the British Secretary of State for Health, Jeremy Hunt, may have changed his mind about the devices. He recently gave approval for a challenge to the new EU Tobacco Products Directive which would question everything it hopes to do with electronic cigarettes.

The challenge was brought by British electronic cigarette manufacturer Totally Wicked. It argues that controls placed by the proposed Tobacco Products Directive planned to launch in 2016 unnecessarily restrict commerce freedoms of e-cig companies without any due cause. In order for the challenge to be reviewed by the Court of Justice of the EU (CJEU), it first had to be brought against Hunt.

I am by no means a scholar of British and EU law. But here’s my understanding of the situation. A challenge against EU health regulations must first be brought against the local nation’s head of health. It seems that rather than fight the challenge, Hunt had the option to say You have a fair point, and let the challenge through to the CJEU. That’s what Hunt did.

Now while this might not mean anything for Hunt’s views of electronic cigarettes (he may still want them regulated into oblivion), it does mean that Totally Wicked has a reasonable grievance against the directive. Also, Hunt clearly could have gummed up the works and acted as a choke point for the grievance simply by making it go through formal proceedings against him first. That he didn’t suggests either that he is warming up to electronic cigarettes or at least that he believes they should get a fair opportunity to make their case like any other industry.

The Tobacco Products Directive brings sweeping changes to all things tobacco, but also spends ample time outlining how electronic cigarettes (despite not containing tobacco) are to be regulated. This includes (but is not limited to) banning TV and radio ads, requiring new products applications, information leaflets, extensive warnings on packages, and extensive product data tracking. Essentially, the directive applies tobacco level controls to a product research suggests is 99% less harmful.

The challenge from Wicked argues that the Tobacco Products Directive is overreaching and works to demolish an industry’s competitive advantage without due cause. This goes against much of the EU’s commerce sensibilities.

You can read more about Hunt’s possible change of heart here.