15.03.2024 |News
The authorities' inexplicable and culpable negligence regarding the millions of illegal disposable electronic cigarettes now on the Swiss market
The Confederation is not enforcing the law.
The idea is that the law is both followed and enforced; therefore when people break the law, the authorities are expected to take action to put a stop to it. However, when it comes to smoking, and electronic cigarettes in particular, this expectation is entirely ignored. An alarming number of disposable electronic cigarettes, more commonly known as "puff bars”, that contain huge quantities of nicotine salts have illegally flooded the Swiss and European markets since their emergence. In Switzerland, this scourge is experiencing exponential growth and the public authorities appear to be gripped by inertia in combating it. Millions of these disposable devices are readily available on the market, enabling young people to get hold of them with a simple click, and with with no checks whatsoever. Despite being fully aware of the calamitous situation, the Confederation is simply sitting on its hands.
The Legal Situation
According to the law as it stands, the volume of e-liquid in closed-system electronic cigarettes, sold as capsules and disposable units, may not exceed a limit of 2 ml, and the nicotine concentration may not exceed 20 mg/ml. These standards were established in a 2014 European Directive that also applies in Switzerland. We already pointed out in 2023 that this legal framework existed in 2023, and loudly criticised the high circulation rates of these products.[i] The new Tobacco Products Act (LPTab) will simply restate these limits.
Electronic cigarettes holding 2ml of e-liquid can provide around 800 puffs at the most. Consequently, any product that claims to provide more than 800 puffs obviously holds more than 2ml. We are seeing regular increases both in the volumes of e-liquid and the number of puffs these devices offer. To date, we estimate that more than half of all disposable e-cigarettes available on the market exceed the legal standard.
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Image 1: Puff Turbo 16000, 30ml, available in around 10 different flavours: https://www.wevappy.ch/cigarette-electronique/puff-jetable-e-cigarette-jetable/puff-turbo-16000-strawberry-coolplay -e-cigarette-disposable (accessed 02/28/2024)
Electronic cigarettes providing 1,500 and 2,500 puffs are readily available both on websites and in stores, but products advertised as offering over 10,000 puffs are now appearing as well. One striking example of the trend towards ever more powerful - and potentially more dangerous - products, is the new “Puff Turbo 16000 Strawberry Coolplay - 16,000 Puffs – Disposable”, available for CHF 26.90 on wevappy.ch. This product contains 30 ml of liquid, i.e. 15 times the legally permissible limit. For comparison, a 600-puff Elfbar usually sells for around CHF 8. This means you would have to spend around CHF 214 on 600-puff Elfbars to get the same amount of nicotine provided by a single Puff Turbo 16000. It is easy for young people to see that the more highly concentrated product is a much better deal.
Table 1: This table shows some of the products available on the wevappy.ch website ordered by tank size. The e-cigarette section on wevappy.ch lists 339 products, the majority of which exceed the legal standard of 2ml (website visited on 28/02/2024). * The Elfbar 800 is on sale on the vape.ch website (visited on 28/02/2024).
If the Elfbar 800 holds the same amount of nicotine as 60 cigarettes, according to the company's own statements,[ii] a disposable electronic cigarette that can provide 16,000 puffs would be the equivalent of 1,200 cigarettes.
Image 2: comparison of the Elfbar 600 (legal) and the Coolplay Turbo 16000 (illegal) in equivalent cigarettes and the retail price on wevappy.ch (visited on 28/02/2024).
Big Money Behind Illegal E-cigarettes
Financial dynamics are driving the growth in this market. We analysed the profit margins retailers are earning. By sourcing products directly from Chinese factories, which are responsible for almost the entirety of global production, retailers can avoid distributors' costs. This enables them to make net profits of between 80 and 90%. For certain products, this can mean profits of up to CHF 19,000 for every 1,000 units sold. We estimate that some outlets easily sell 1,000 disposable units per week. The idea that an outlet specialising in puff bars could achieve net profits of close to a million francs a year is not at all far-fetched, not forgetting that these products are largely illegal. So what about inspections, tax assessments, and fines? According to the information we have received, they never take place.
The Ongoing Problem of Excessive Nicotine Concentrations
The same 2014 European directive that limits volumes in closed-system electronic cigarettes, also imposes maximum limits on the nicotine concentrations of e-liquids, which must not exceed 20 mg/ml (often misleadingly shown on the packaging as a figure of “2%”), a dose which is already considered to be high. As early as March 2022, AT Suisse issued an alert regarding the circulation of products containing illegally high concentrations of nicotine salts (up to 60 mg/ml) in Switzerland.[iii] According to our information, some cantons have actually reacted to the problem and have forced certain stores to withdraw these types of products. However, these items are still available on the internet and in those cantons that have failed to perform checks.
The puffbar.eu website is still offering puff bars containing illegal nicotine concentrations of 50 mg/ml for delivery to Switzerland. Similarly, disposable electronic cigarettes can be easily ordered directly from Chinese websites for delivery to Switzerland, with no restrictions in terms of volumes or nicotine concentrations.
Image 3: 50 mg/ml nicotine products on sale on https://puffbar.eu/de/puff-flow/48-cool-mint.html (accessed 28/02/2024)
The new Tobacco Products Act (LPTab) is a weak piece of legislation that will come into force years too late, and even then it simply restates the European standards already stipulated in 2014. But if no serious efforts are made to enforce the standards currently in force, the LPTab will not improve the situation at all, contrary to what the Confederation seems to believe.
The Problem Extends to Hundreds of Websites, One of Which is Galaxus!
Given the growing scale of the phenomenon and the glaring inaction of the federal authorities, we sent a letter to the consumer protection body of every canton in March 2024, asking them to look at the issue as well. To assist them in implementing the necessary measures, we were highly specific in providing the exact names and addresses of the companies selling these products.
We conducted a survey of the websites offering electronic cigarettes exceeding the legal limit of 2 ml of e-liquid. Almost all the websites we visited sold them. One might have expected these to be small companies, but this was far from the case, some of these websites have thousands of different products and, surprisingly, one of them, was Galaxus, the Swiss e-commerce giant belonging to Migros, which claims not to sell either alcohol or cigarettes.
Galaxus’ disposable e-cigarette section lists 348 items, the vast majority of which have tanks larger than 2ml, meaning that they are illegal. The website proudly published an analysis of its 2023 bestsellers on 31 January , 2024: Best-selling products of 2023.[iv] Here Galaxus pointed out that one of the most important consumer trends was the increasing number of people buying e-cigarettes online. Using the emotive title “A Cloud of Vape Smoke Descends”, Galaxus declared that “one trend that is reflected in the figures is the increasing popularity of vaping – the use of electronic cigarettes - advertised as an alternative to conventional tobacco. "Last year, vapes and vape liquid shot up more than 500 places in the list of some 2,500 product groups available on Galaxus. Galaxus sold almost three times as many vapes in 2023 as in the previous year, despite the health risks of e-cigarettes”. Further down, the article states that sales of these products increased by 291%, but nowhere do they mention that the majority of them are entirely illegal.
Figure 4: examples of some of the illegal products sold on Galaxus: the Elfbar 2500 with an 8ml tank, and a Wotofo Nexbar 10000 with a 20ml tank. (visited on 28/02/2024)
What can be more shocking than Galaxus, which belongs to Migros, selling products containing nicotine, something that goes completely against the ideals of Gottlieb Duttweiler, the founder of Migros who banned the sale of tobacco and alcohol. But it also sells a large selection of entirely illegal products. We are asking Migros and Galaxus to cease selling these harmful toxic products altogether.
The companies described are highly specialised in the retail of these types of products and they are perfectly aware that closed-system e-cigarettes with thanks exceeding 2 ml are illegal, both in Switzerland and throughout the European Union. We are also asking the cantonal authorities to take urgent action to have all illegal products removed from the market immediately. Furthermore, we also demand that these companies be given significant fines; no one should be allowed to ignore the law, these companies are highly specialised in the retail of these types of products; they are perfectly aware that closed-system e-cigarettes with tanks exceeding 2ml are illegal, both in Switzerland and throughout the European Union.
The Responsible Parties: Parliament and the Confederation
The authorities are well aware that these products are illegal, but sales are increasing despite this, and in full view of anyone who has their eyes open.
A parliamentary interpellation was tabled on 15 June, 2023 by Laurence Fehlmann Rielle, a National Councillor (PS/GE) who is also the President of AT Suisse. Ms Fehlmann Rielle's paper openly addresses the problem of the large number of illegal products on the market and asks a series of equally clear questions.[v]
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23.3879 Interpellation Disposable Electronic Cigarettes with Illegal Volumes of E-Liquids Sold on the Swiss Market What will the Federal Council do? Text Submitted: One can observe that there are currently a large number of disposable electronic cigarettes on the market with e-liquid tanks that far exceed the authorised limits. I would therefore ask the Federal Council to answer the following questions: - Will it take immediate action to remove all products exceeding the maximum authorised volume from the market and to prosecute the offenders? - Does the Federal Office of Customs and Border Security carry out systematic checks on the conformity of imported electronic cigarettes before they enter the market, as it does for imported medicines on behalf of Swissmedic? - What checks are carried out on disposable electronic cigarettes after they are placed on the market? - Given the specific risks these products pose for public health and the environment, does the Federal Council not believe that the public interest would be better served by banning the sale of disposable electronic cigarettes in Switzerland? |
The Federal Council's reply to the interpellation was incomplete and entirely unsatisfactory raising the question of whether the Federal Council even takes the matter seriously. A critical analysis of the Council's reply indicates that it has not answered these questions exhaustively, although it does address certain aspects relating to the regulation and control of electronic cigarettes in Switzerland.
- Immediate withdrawal of non-compliant products and the prosecution of offenders: The reply does not specifically mention whether the Federal Council intends take action to remove products exceeding the maximum authorised volumes from the market and to prosecute the offenders. It mainly focuses on future regulations under the federal law on Tobacco Products and Electronic Cigarettes (LPTab) and the current standards which apply under the Cassis de Dijon Principle.
- Systematic import checks performed by the Federal Office of Customs and Border Security: Although the reply mentions that the competent enforcement authorities (the consumer protection authorities in each canton) do check the conformity of electronic cigarettes, the Federal Council does not specify whether systematic import checks are performed before they are placed on the market, as with medicinal products by Swissmedic.
- Post-marketing checks: The reply addresses this issue by stating that the consumer protection authorities in each canton carry out compliance checks and take samples depending on the level of risk. However, the Council cannot provide details about the frequency, extent and criteria associated with these inspections, leaving a great deal of ambiguity regarding their effectiveness.
- Ban on disposable electronic cigarettes: The reply refers to measures already implemented to limit their impacts on public health and the environment, including a ban on sales to minors, advertising restrictions, and recycling measures. The Council also mentions the possibility of banning single-use products under certain circumstances. However, it does not take a clear position on the total ban on disposable electronic cigarettes in Switzerland.
In conclusion, although the Council's reply provides some information about existing and future regulations covering electronic cigarettes in Switzerland, it does not respond directly and comprehensively to the specific questions asked in the interpellation, particularly those concerning immediate actions to be taken against non-compliant products, details of systematic import checks, and the position of the Federal Council regarding the ban on disposable electronic cigarettes. Why did the Federal Council not provide full answers to the questions it was asked?
Another Example of Inaction by the Confederation: Warnings on Snus Boxes
The public authorities' negligence is not limited to allowing a tsunami of disposable electronic cigarettes to enter the Swiss market. Another example of delay and inaction include missing health warnings on certain tobacco products, particularly boxes of snus.
AT Suisse had already reported the absence of health warnings on packets of snus in 2021, firstly in a letter to the Confederation in August 2021, then by publishing it on our website. These packages blatantly violate Art. 15, para. 1 of the Federal Tobacco Ordinance (OTab).[vi]
As with the circulation of illegal electronic cigarettes, Ms. Fehlmann Rielle filed a parliamentary interpellation on 17 March 2022.[vii] In its reply, the Federal Council stated: “On November 5, 2021, the Federal Office of Public Health (FOPH) informed the enforcement authorities in each canton that snus, containing tobacco and not meeting the legal labelling requirements, was being marketed in Switzerland. Following these observations, some cantons inspected companies established in their territories, as well as their products.” And then that “At the end of March 2022, the FOPH carried out a market survey in its capacity as supervisory authority and found that the warnings on snus packages still appeared on the back rather than the front. It was for this reason that the FOPH drew the attention of the cantons to this practice, one which is still non-compliant.” The responsibility for this is still always placed on the cantons.
As a result of this, snus packages are freely on sale in Coop, in kiosks and on the web with none of the health warnings required by law. We have not seen a single snus packet with compliant health warnings.
Given that the stores selling snus products are failing to make changes, Ms. Fehlmann Rielle was forced to file a new interpellation in December 2023, to which the Federal Council gave a reply (February 2024), one which was unsatisfactory to say the least.[viii] The Council stated that, due to the arrival of the new LPTab, which includes minor changes in the requirements for health warnings, "it is not immediately pressing for the FOPH to issue a directive to the cantons regarding the labelling changes, especially given that the problem has already been brought to their attention and they are now starting to work on the matter.” Producers will also then be given a transitional period until summer 2025 to adapt the packaging to the new standards. Even though AT Suisse raised the issue in August 2021, the authorities still believe today that it is... urgent that we wait!
No! AT Suisse believes that this total lack of respect for the law is not acceptable, and that simply waiting is equally unacceptable.
Political Responsibilities at All Levels
The main culprit in the mismanagement of electronic cigarettes is the Parliament, in which right-wing parties under the direct influence of the “big tobacco” lobby have always hindered effective measures to address smoking. It should not be forgotten that the PLR and the UDC received campaign contributions from Philip Morris International during the federal elections of October 2023[ix], that the President of Swiss Tobacco actually sits in Parliament on the benches of the UDC, [x]and that Damian Müller (PLR/LU), State Councillor and President of the Health Commission, said, in front of the cameras of the RTS show “Temps Présent”, that around 300 deaths are caused by smoking each year, while this figure is closer to 10,000. This was either a lie or incompetence on the part of a politician who, given that he sits on the Health Commission and is a rapporteur for the majority party, should be very well informed about the issues surrounding smoking.[xi]
The delays in adopting effective anti-tobacco laws and the aggressive tactics that the tobacco lobby is employing against the Parliamentary initiative known as “Enfants Sans Tabac” (Stop Child Smoking)[xii], are striking proof of the harmful and toxic power of this lobby.
The Federal Council is completely neglecting the fight against smoking. Why is the administration feigning blindness to the explosion in the sales of these illegal products, as we are highlighting? Because there is no market surveillance system in place! This is also part of the general trend in ignoring the role of tobacco in public health strategies, one which has been adopted in recent years. Aside from some attractive declarations of intent, we should actually be asking the Confederation whether it is genuinely concerned about smoking?
What role are the cantons playing in all this? As indicated in the Council's response to Ms. Fehlmann Rielle's interpellation, it is the consumer protection bodies of the cantons which are responsible for implementing control measures. Can they afford to do this? Post-marketing checks cannot take the place of inspections and bans applied before the products are placed on the market, but the Federal Council has clearly “forgotten” to respond to this issue. Furthermore, who is responsible for monitoring the market and informing the cantons’ consumer protection bodies when action needs to be taken? Why, moreover, is it left to the same consumer protection bodies to take action when it is stated on the packaging of these products, and even on the websites selling them, that they are illegal when they contain more than 2 ml of e-liquid? They do not even need to be chemically analysed, the sellers simply need to be forced to remove them from sale. Placing the responsibility on the cantons without even bothering to answer the questions asked of it seems to be just a cavalier way for the Confederation to shirk its own responsibilities.
Conclusions
Several countries (including France) have completely banned the sale of disposable electronic cigarettes, given the enormous risks they pose for young people and the environment. However, Switzerland is happy to allow even those that have already een banned to be sold.
Once again we ask the Confederation to act urgently to counter the surge in the use of disposable electronic cigarettes by young people!
Once again, we expect that the Confederation will do absolutely nothing.
Luciano Ruggia, Director of AT Suisse, 15 March 2024
[ii] https://www.at-schweiz.ch/blog-at/elf
[iv] https://www.galaxus.ch/en/page/our-best-selling-products-of-2023-31363 (visited on 27/02/2024)
[v] Fehlmann Rielle L. 23.3879 Interpellation: Cigarettes électroniques jetables avec des volumes illégaux d'e-liquides vendues sur le marché suisse. Que va faire le Conseil fédéral? June 15, 2023 (https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20233879)
[vi] https://www.at-schweiz.ch/fr/news-media/news?id=93&Snus-les-emballages-enfreignent-la-loi
[vii] Fehlmann Rielle L. 22.3212 Interpellation : Vente de produits snus ne respectant pas les prescriptions légales de risques pour la santé. March 17, 2022 (https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20223212)
[viii] Fehlmann Rielle L. 23.4514 Interpellation : Mises en garde concernant le snus. Pourquoi la Confédération accepte-t-elle des infractions?. December 22, 2023 (https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20234514)
[x] https://www.swiss-tobacco.ch/ueber-uns/
[xi] Episode of Temps Présent broadcast on February 8, 2024: https://www.rts.ch/play/tv/temps-present/video/les-nouveaux-pieges-de-lindustrie-de-la-nicotine?urn=urn:rts:video:14688268. Mr. Damien Müller’s remarks appear at minute 45 of the programme.