Last week, the Ministry of Health added restrictions on nicotine pouches to the rules being processed concerning electronic cigarettes. The modification aims to prohibit the sale of such products to minors and through the internet, and to require the withdrawal of flavored pouches. Employers of Poland (Pracodawcy RP) assess that in practice this will exclude such products from the market without implementing an official ban on their use. According to the organization, this is a legally inconsistent amendment, so the project should be re-submitted for opinion and even for public consultation.
“At the final stage of work, when the bill on health protection from the consequences of using tobacco and tobacco products is about to go to the Sejm (lower house of Polish parliament), a controversial amendment has been submitted by the Ministry of Health, which introduces very strict rules on nicotine pouches,” says Szymon Witkowski, chief legislator of Pracodawcy RP. “The problem lies in the fact that this amendment has not been consulted at all with market representatives, while regulations clearly state that social partners, employers’ organizations, trade unions, i.e. the Social Dialogue Council, should have at least 30 days to consult and opine on the bill.”
The bill (UD 86) in the version consulted with the market, comprehensively regulates the sale of nicotine-free liquids for electronic cigarettes, including disposable ones. The proposed provisions aim to prohibit the sale of such products to minors, sales in vending machines and on the internet, and advertising of e-cigarettes. The government also wants to limit the places where such products can be used and introduce a requirement for appropriate marking of packages. In turn, the amendment assumes that similar restrictions will also apply to pouches with nicotine, which have been classified as related products.
“When the opinion on the bill had already been completed, there was an amendment that restricts another product. This was not envisaged in the original project, so as representatives of employers, entrepreneurs, we believe that the obligation to consult, opine on this part of the bill has not been kept, and that it is a violation of the law,” explains Szymon Witkowski.
Experts at Pracodawcy RP assess that the amendment significantly changes the previously reviewed draft of the regulation, and it should therefore be submitted again for an opinion and even social consultations. It introduces a new category of products, previously not included in the proposed regulation, and therefore not consulted with the market. Additionally, the added provisions require manufacturers to submit information on products to the President of the Office for Chemical Substances, at least six months before the day of introduction of new or modified nicotine pouches, and also determine the maximum nicotine content at 20 mg/g.
“The bill provides for significant restrictions on nicotine pouches, which would really lead to an economic lack of sense in producing them in our country. In other EU countries such restrictions do not exist, of course in some of them nicotine pouches are regulated and we should take positive examples from there, but we should not completely ban their production, because essentially that is what these regulations are aimed at,” says an expert at Pracodawcy RP.
This includes a provision about the possibility of selling only pouches that contain ingredients giving a tobacco smell or taste. This means that all flavored products will be banned. Nicotine pouches that will not meet the new requirements for labeling or composition, according to the proposals, will have to be withdrawn at most six months from the date of entry into force of the law.
“According to the law, there is no explicit ban, but the restrictions are so great that manufacturers will not produce these pouches. If they do not produce them in Poland, those who will not earn from this will be, among others, Polish tobacco growers, farmers who have grown tobacco for many years. Poland is one of the largest producers and exporters of tobacco products in the world, so this market is very significant for us. The restrictions will unfortunately destroy its significant part. Consumers will have unrestricted access to nicotine pouches from other EU countries,” says Szymon Witkowski.
As he points out, in the cover letter to the amendment, it was suggested to place UD 86 in the agenda of the next meeting of the Standing Committee of the Council of Ministers. Pracodawcy RP appealed to its chairman, Maciej Berka, to return the project to the requesting authority and require them to conduct agreements, especially since there are more legislative errors than just ignoring the need for consultation on new proposals.
“The bill introduces a vacatio legis clause, that in practice prevents Polish entrepreneurs from adjusting to these regulations, as they will enter into force overnight. This contradicts what the government has been promising us for a long time, i.e. at least a six-month vacatio legis for regulations that impose additional burdens, additional obligations on entrepreneurs,” explains the chief legislator of Pracodawcy RP.
As the experts of this organization indicate, the health ministry, proposing the amendment, did not take into account the obligation to notify regulations to the European Commission. It is about the ban on the sale of nicotine pouches of various flavors and scents, i.e. products that have so far legally existed on the market.
“Considering the scale of violations and doubts, Pracodawcy RP critically assesses the way of proceeding this bill. It should be noted, that unfortunately this is not the first such case – lately, there have been many projects that are sent for an opinion in a scandalously short time, when it is difficult for us to conduct a thorough analysis of often very complicated bills. Sometimes these projects are not even sent to us, and sometimes, as in this case, there is a last-minute amendment that completely changes the meaning of the bill and is not discussed with us,” indicates Szymon Witkowski.
Nicotine pouches are tobacco-free products, but contain nicotine, which are placed under the lip where nicotine gradually release into the bloodstream. They are legal and available on the market in Poland, but their sale to minors is prohibited. According to the Ministry of Health, their popularity among young people is increasing, as they can easily buy pouches in stationary shops and online.
