The Helvetic Vape Association is an independent Swiss non-profit organization for vapers, financed by contributions and donations from its members and from selling articles related to vaping products. The association is in favour of reasonable and fair vaping regulations, and is focused on the principle of harm reduction.

Last week, on the 25th of May, the association sent an open letter to the LFV containing 7 important questions, in order to clarify the situation around a judgment that the FAC took on the 24th of April 2018.

Federal Office of Food Safety and Veterinary Affairs, LFV Schwarzenburgstrasse 155 3003 Bern
info@blv.admin.ch
Lausanne, May 25, 2018
OPEN LETTER
Re: vapotage products, new administrative regulation?

Dear Sir/ Madam,

Following the judgment of the Federal Administrative Court (FAC) of 24 April past, many questions arise concerning the import and placing on the Swiss market vapotage products containing nicotine. Our association was informed of communications from your office on the topic in the media and on your website whose content has been modified many times in a month.

These papers leave many questions open. To clarify the situation, thank you kindly answer the legitimate questions of users vapotage products, essential tools for minimizing damage related to nicotine consumption.

  1. What is the legal basis of your performance on the placing on the market Swiss vapotage of bottles of liquid containing nicotine?

You reaffirm that the placing on the Swiss market vapotage products containing nicotine is prohibited on the basis of regulations on foodstuffs and consumer products while it is only an administrative interpretation. We wish to have more details on your interpretation of legal texts concerning vapotage liquid bottles. This is a specific category of goods that can not be summarized in the abstract “electronic cigarette”, as clearly specifies stopping the TAF.
Subsidiary question: for an administrative interpretation has some consistency, a simple little clear communication on a website, editable at any time is not enough. Are you planning to make a new administrative decision to endorse your interpretation of the rules?

2. What is the legal basis to implement a European directive in Switzerland?

You use the Cassis de Dijon principle, to continue to restrict the placing on the Swiss market vapotage products containing nicotine. You even extrapolate this principle to implement de facto Switzerland Tobacco Products Directive (TPD) European who has not been the subject of bilateral negotiations between Switzerland and the European Union (EU) because it is part the health of European regulations pane. Your extrapolation going to apply PDT to products manufactured in Switzerland and are obviously not imported. We wish to have more details on legal bases that allow you the administrative implementation of EU law in Switzerland.
Subsidiary question: for an administrative interpretation has some consistency, a simple little clear communication on a website, editable at any time is not enough. Are you planning to make a new administrative decision to endorse your application of PDT in Switzerland?

3. If PDT could be implemented in Switzerland, what interpretation would prevail and what the technical requirements?

In practice, PDT has been transposed into EU countries with different national interpretations. For example, the French interpretation differs from the German interpretation. In addition, the new draft law on tobacco Federal Council, although incompatible with vapotage products, is critical of some aspects of PDT, such as the capacity of vapotage liquid bottles. This draft is therefore already a kind of “Swiss interpretation” of PDT. You also state that vapotage products that are sold in our country must meet the technical requirements of a country of the EU or the European Economic Area (EEA) without specifying exactly what you mean by “technical requirements” . We wish to have more details on how you consider administrative implementation of PDT and “technical requirements” national extra in our country.
Subsidiary question: for an administrative interpretation has some consistency, a simple little clear communication on a website, editable at any time is not enough. Are you planning to make a new administrative decision to approve the details of your eventual implementation of PDT and its “technical requirements” in Switzerland?

4. What rules apply in practice today on  imports private of vapotage products for personal use?

The old newsletter No. 146 of the Federal Office of Public Health (BAG), which imposes limits on quantities importable, suffers from the same defects that the administrative decision quashed by the TAF in that it generalizes a decision an entire product category, “electronic cigarette” is an abstract generalization. In addition, the BAG no longer in charge of the case, it’s your office to take any decisions regarding the private import of vapotage products for personal use. If we follow your logic on professional imports, there should be differential treatment for the products that are on the market of the countries of the EU / EEA and products marketed in other countries. We want to hear your views on this very important point for users vapotage.
Subsidiary question: for an administrative interpretation has some consistency, a simple little clear communication on a website, editable at any time is not enough. Are you planning to make a new administrative decision to specify your private import rules vapotage products for personal use?

5. What are the specific instructions you have sent to the Administration Federal Customs(FDA) concerning imports of vapotage products, both professional and private for personal use?

AFD is in charge of import controls, clear guidelines they are needed. However, as explained throughout this open letter, the information you have given so far are not very precise. For example, sales and satisfactory products to “technical requirements” in a country of the EU / EEA but imported from another country should be accepted by Customs. We want to know the control procedure in place and hope it is simplified to prevent possible prohibitive administrative obstacles.

6. What are the scientific bases that allow you to inform the public about the benefit / risk balance of vapotage products on public health?

Your current website does link reference in an old report of the risk assessment German Institute (BfR) dating from 2012 and on obsolete products long time. In 6 years numerous scientific reports, and provided more accurate than BfR, have been produced in several countries do not seem to be known to your office. You indicate, however, be examining the effect of vapotage products on health (products that are on the market for 15 years). We want to know how is the scientific watch and how you select your sources of information.

7. What are the internal guidelines of the Federal Department of Home Affairs (DFI) of respect by the administration of judicial decisions and the guidance provided by Parliament?

Your current web site continues to categorize all vapotage products as “electronic cigarettes” without any differentiation. Yet the TAF, in its judgment of 24 April, condemned as a grave error on the basis of solid case law, this kind of abstract generalization by the administration. Your website also states that vapotage products will be treated as tobacco products and will be marketed as conventional cigarettes by the future law on tobacco products. Yet in 2011, the Parliament decided not to consider the vapotage products like tobacco products excluding the tax on tobacco. This has led to a change in the ordinance on the tobacco tax (OITab) effective April 1, 2012. Subsequently, Parliament clearly reaffirmed in 2016 its commitment to a differentiated regulations for product vapotage rejecting the first bill on tobacco products (LPTab).

Finally, in a precision worries benevolent, we urge you to change the definition of what are vapotage products and how they work on your website. The current definition ready to laugh and does not demonstrate your seriousness about the issue: “Electronic cigarettes sold in Switzerland are not all identical, but they have something in common: they are all composed of a mouthpiece, a rechargeable battery , an electric vaporizer and a cartridge containing the liquid to be vaporized. When pulling on the nozzle, the liquid is heated or sprayed before being inhaled. There are liquid with or without nicotine.

Waiting for your reply, I am available for further information and I present to you, Madam, my best regards.
The president of the association
Olivier Théraulaz

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