Business is concerned about the possible growth of the shadow tobacco market

27/ 11/ 2020

Before September 1, in Ukraine, there were several draft laws related to the protection of public health from the harmful effects of tobacco (№ 2813 and its alternative drafts № 2813-1, 2813-2, 2813-3 and 2813-4). At the same time, to develop a common position (after all, none of the above documents suited the market), it was proposed to create a Working Group, which would include representatives of the business. Thus, the chairman of the Subcommittee on Epidemiological Safety, HIV / AIDS, and Socially Dangerous Diseases was instructed to prepare a draft law implementing the requirements of the European Parliament Directive on the production, presentation, and sale of tobacco and related products. However, the Working Group was established only formally, and its members, including the EBA experts, participated just in the discussion, not in the drafting of the law, and were not acquainted with its text before its registration in the Verkhovna Rada. The announcement about the draft registration was only made during the online meeting of the Committee on November 4, 2020. It is worth noting that even the representatives of the Ministry of Health, who voted for it during the meeting of the profile committee, did not see the document. The efforts of the Working Group resulted in the draft Law № 4358 On Amendments to Certain Laws of Ukraine on Public Health Protection from the Harmful Effects of Tobacco. After analyzing the document, it should be noted that the wording of the draft Law № 4358 is almost completely similar to the one of the draft № 2813 with all the shortcomings remained although the Working Group had worked on their elimination and finalization. In fact, this is the same draft law that should have been finalized, but, as we can see, this was not done, and the Working Group, which was created for this purpose, was a kind of spectacular for business and the public for the simulation of the work on the draft law. Thus, the draft law still contains major flaws. First, the terminology used in the draft law (tobacco products, “emissions”, “packaging”, etc.) does not correspond to the meaning of these terms established by Directive 2014/40 / EU, and the definition of “electronic cigarettes” is not in line with current legislation. Besides, a significant number of term definitions provided for in the Directive and are necessary for the harmonization of the national regulatory system of the production and circulation of tobacco products with the regulatory system established in the EU are not included. Secondly, the draft law does not contain provisions on the adaptation of Ukrainian legislation to the requirements of Directive 2014/40 / EU, which relate to the rules of labeling of smokeless tobacco products, regulation of cross-border distance selling of tobacco products, the procedure for determining the characteristic taste and aroma of a tobacco product. , provided that in the EU such a procedure is provided and the relevant acts must be issued by the European Commission, etc. As a result, the model of regulation of the tobacco products market proposed by the draft law № 4358 differs significantly from the model of EU regulation and does not ensure the fulfillment of Ukraine’s commitments. A selective and fragmentary approach to the implementation of the Directive will not have any positive effect, as the application of common approaches for Ukraine and the EU to the categorization of tobacco products, their definition criteria and requirements for production and circulation (technical regulation) is a prerequisite for the smooth Ukraine - EU trade, the application of the free trade regime between Ukraine and the EU and the expansion of the export potential of domestic enterprises. Therefore, the European Business Association calls on MPs to finalize the draft law №4358, considering the proposals of business, to have effective rules that help retain opportunities for international trade. Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.

At the same time, to develop a common position (after all, none of the above documents suited the market), it was proposed to create a Working Group, which would include representatives of the business. Thus, the chairman of the Subcommittee on Epidemiological Safety, HIV / AIDS, and Socially Dangerous Diseases was instructed to prepare a draft law implementing the requirements of the European Parliament Directive on the production, presentation, and sale of tobacco and related products. However, the Working Group was established only formally, and its members, including the EBA experts, participated just in the discussion, not in the drafting of the law, and were not acquainted with its text before its registration in the Verkhovna Rada. The announcement about the draft registration was only made during the online meeting of the Committee on November 4, 2020. It is worth noting that even the representatives of the Ministry of Health, who voted for it during the meeting of the profile committee, did not see the document.

The efforts of the Working Group resulted in the draft Law № 4358 “On Amendments to Certain Laws of Ukraine on Public Health Protection from the Harmful Effects of Tobacco”.

After analyzing the document, it should be noted that the wording of the draft Law № 4358 is almost completely similar to the one of the draft № 2813 with all the shortcomings remained although the Working Group had worked on their elimination and finalization. In fact, this is the same draft law that should have been finalized, but, as we can see, this was not done, and the Working Group, which was created for this purpose, was a kind of spectacular for business and the public for the simulation of the work on the draft law.

Thus, the draft law still contains major flaws. First, the terminology used in the draft law (tobacco products, “emissions”, “packaging”, etc.) does not correspond to the meaning of these terms established by Directive 2014/40 / EU, and the definition of “electronic cigarettes” is not in line with current legislation. Besides, a significant number of term definitions provided for in the Directive and are necessary for the harmonization of the national regulatory system of the production and circulation of tobacco products with the regulatory system established in the EU are not included.

Secondly, the draft law does not contain provisions on the adaptation of Ukrainian legislation to the requirements of Directive 2014/40 / EU, which relate to the rules of labeling of smokeless tobacco products, regulation of cross-border distance selling of tobacco products, the procedure for determining the characteristic taste and aroma of a tobacco product. , provided that in the EU such a procedure is provided and the relevant acts must be issued by the European Commission, etc.

As a result, the model of regulation of the tobacco products market proposed by the draft law № 4358 differs significantly from the model of EU regulation and does not ensure the fulfillment of Ukraine’s commitments. A selective and fragmentary approach to the implementation of the Directive will not have any positive effect, as the application of common approaches for Ukraine and the EU to the categorization of tobacco products, their definition criteria and requirements for production and circulation (technical regulation) is a prerequisite for the smooth Ukraine – EU trade, the application of the free trade regime between Ukraine and the EU and the expansion of the export potential of domestic enterprises.

Therefore, the European Business Association calls on MPs to finalize the draft law №4358, considering the proposals of business, to have effective rules that help retain opportunities for international trade.

Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.