EXPLANATORY MEMORANDUM
Honorable Members of Parliament,
The Kingdom of Belgium has undertaken, within the framework of its prerogatives in matters of public health and in accordance with European directives relating to tobacco control, a proactive and ambitious policy to reduce smoking, with a clearly defined objective: to build a society in which every citizen, and particularly every minor, benefits from effective protection against the health, social and economic risks inherent in tobacco dependence.
Nevertheless, despite the substantial progress achieved in this matter, it must be noted that a worrying reality persists: loose tobacco and rolling papers constitute, de facto, a privileged vector of initiation and maintenance in tobacco consumption for the most socio-economically vulnerable categories, namely persons with limited financial resources who are, as a result, more exposed to mechanisms of nicotine dependence.
These products, marketed at prices significantly lower than those charged for manufactured cigarettes due to differentiated taxation and less industrial processing, generate a structural and systemic inequality in access to health. Indeed, while households with comfortable incomes have increased means to progressively reduce or even definitively cease their tobacco consumption, households in situations of economic precarity find themselves trapped in lasting dependence on an admittedly cheap product, but whose health harmfulness remains at least equivalent — if not superior — to that of conventional cigarettes.
It is neither legally nor morally acceptable for loose tobacco to become, in practice and implicitly, "tobacco for socio-economically disadvantaged categories."
This is an insidious discrimination, certainly not enshrined in the letter of the law, but nevertheless deeply rooted in fact and liable to infringe the constitutional principle of equality of all citizens in matters of public health.
Furthermore, and subsidiarily, roll-your-own tobacco raises an additional epidemiological and regulatory problem: the material impossibility of quantifying with precision and scientific rigor the dose of tobacco actually consumed by the user. Indeed, unlike manufactured cigarettes, which present a standardized, normalized and easily quantifiable character in terms of grams of tobacco, nicotine content and toxic substances, cigarettes made manually using loose tobacco present considerable heterogeneity from one consumer to another, or even from one cigarette to another for the same individual, concerning: the quantity of tobacco introduced, the packing density, the cylinder length, the mode of combustion and the duration of inhalation.
The legal, health and social consequences of such an absence of standardization are patent and multiple:
- the consumer finds himself objectively unable to accurately assess his actual daily consumption, which hinders any conscious approach to reduction or cessation,
- the medical profession experiences manifest difficulties in establishing a precise diagnosis of the degree of nicotine dependence and in prescribing appropriate therapeutic treatment,
- public health policies based on quantified epidemiological data see their efficiency and relevance substantially reduced,
- and health risks are significantly increased, particularly due to deeper inhalation of toxic fumes, less controlled combustion rate and often higher concentration of carcinogenic and mutagenic substances.
This structural deficiency in traceability and quantification contributes, paradoxically and counterproductively, to perpetuating and reinforcing tobacco dependence mechanisms, whereas the objective pursued by the legislator and health authorities is, quite the contrary, to substantially reduce them, or even eradicate them in the long term.
The legal prohibition of the placing on the market, commercialization and distribution of loose tobacco and rolling papers therefore in no way constitutes a purely symbolic or demagogic measure. It is on the contrary a substantial legislative measure, consistent with public health objectives defined at national and European levels, based on the cardinal principles of social equity and health protection.
This normative provision aims, as a priority and imperative, to protect categories of the population who suffer disproportionately and inequitably from the health, social and economic consequences of smoking, while guaranteeing all citizens a clear, transparent, legible and non-discriminatory legal framework.
This bill falls fully within the logical and legal continuity of pre-existing normative provisions regarding tobacco control, while taking a decisive and structural step to achieve the strategic objective — now widely shared and supported by a substantial majority of our fellow citizens as well as by competent scientific and medical authorities — consisting in the advent of a generation free from all forms of tobacco dependence, in accordance with the recommendations of the World Health Organization and the international commitments subscribed to by the Kingdom of Belgium.
For all these legal, health, social and ethical considerations, we respectfully seek your benevolence and urge you to grant your support to this bill, by voting favorably for its adoption.
BILL TEXT
Article 1 — Purpose and scope of application of the law
The purpose of this law is to prohibit, throughout the territory of the Kingdom of Belgium, the manufacture for commercialization purposes, importation, exportation, professional placing on the market, retail or wholesale sale, as well as distribution, free of charge or for payment, of roll-your-own tobacco, loose tobacco in all its forms, rolling papers and any product, accessory or device intended primarily or exclusively to enable the manual manufacture of cigarettes by final consumers.
Article 2 — Legal definitions
For the purposes of this law and its implementing decrees, the following definitions apply:
- "loose tobacco": any tobacco-derived product, within the meaning of the Law of 24 January 1977 on the protection of consumer health with regard to foodstuffs and other products, presented in a form not packaged in prefabricated individual consumption units, intended to be rolled manually by the consumer or using a tubing machine, regardless of its nicotine, tar or other addictive or aromatic substance content;
- "rolling papers": any paper, cellulose film or similar support, with or without an incorporated filter, specifically designed, marketed or presented as intended to enable the artisanal or domestic manufacture of cigarettes by manual rolling of tobacco;
- "product for rolling": any article, utensil, machine, device or accessory, including manual rolling machines, electric or mechanical tubing machines, pre-packaged empty tubes and specific carrying cases, whose design, commercial presentation or main purpose is to facilitate or enable the manual manufacture of cigarettes from loose tobacco.
Article 3 — Principle of prohibition and specific bans
From the entry into force of this law, the following are formally prohibited throughout the territory of the Kingdom of Belgium, without prejudice to criminal and administrative sanctions provided for in Article 4:
- industrial or artisanal manufacture, importation from Member States of the European Union or third countries, exportation to national or international destinations, offering for sale, retail or wholesale sale, commercial or free distribution, as well as storage for commercialization purposes of loose tobacco as defined in Article 2, paragraph 1;
- manufacture, importation, exportation, offering for sale, sale, distribution and commercial storage of rolling papers as defined in Article 2, paragraph 2;
- any form of direct or indirect advertising, commercial promotion, sponsorship, product placement, digital or traditional marketing, distribution of free samples, as well as any commercial communication action, in any form, by any means and on any medium whatsoever, having as its object or effect, directly or indirectly, to favor the commercialization or consumption of the products covered by the preceding paragraphs of this law.
Article 4 — Administrative and criminal sanctions
Without prejudice to the application of criminal sanctions provided for by the Criminal Code in case of related offense, any natural or legal person, operator, manufacturer, importer, distributor or retailer in breach of the prohibitions enacted in Article 3 of this law incurs the following administrative sanctions:
- a proportional and dissuasive administrative fine the amount of which is between one thousand (1,000) euros and fifty thousand (50,000) euros, the quantum of the fine being determined according to the seriousness of the offense, the volume of products concerned, the intentional or unintentional nature of the violation, the degree of cooperation with control authorities, as well as the economic and financial situation of the offender;
- in case of recidivism noted within three years from a first offense having been subject to a final administrative sanction, the doubling of the aforementioned fine, together with an optional additional sanction which may consist of temporary suspension or final revocation of the authorization to exercise the commercial activity concerned, for a maximum duration of twelve months, as well as confiscation and ex officio destruction, at the offender's expense, of all stocks of prohibited products.
The practical terms of control, recording of offenses, adversarial procedure, notification of sanctions, collection of fines and execution of additional measures are set by Royal Decree deliberated in the Council of Ministers, after opinion of the Council of State, within six months from the entry into force of this law.
Article 5 — Transitional regime and temporary derogatory measures
By derogation from the prohibitions set out in Article 3 and in order to preserve the legitimate economic interests of operators in good faith, commercial establishments, wholesalers and retailers having, on the date of entry into force of this law, regularly constituted stocks of now prohibited products, benefit from an incompressible grace period of five (5) calendar days to proceed with the commercial disposal of said stocks, subject to strict compliance with the following cumulative conditions: absence of any additional supply subsequent to the entry into force of the law, formal prohibition of any advertising or promotional campaign, and obligation of prior declaration of quantities held to the competent inspection services designated by the Royal implementing decree referred to in Article 4.
Notwithstanding the provisions of the preceding paragraph, the economic operators concerned may apply, on an exceptional and derogatory basis, for an extension of the initial grace period up to a maximum of three hundred (300) calendar days, subject to prior and mandatory completion of a dematerialized registration procedure in the National Transitional Register of Tobacco Operators (hereinafter referred to as "NTRTO"), accessible exclusively by telematic means via the official digital portal of the competent authority. This registration imperatively requires reinforced and multi-factor authentication of the requesting operator, in accordance with the technical standards defined by Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation), including in particular verification of digital identity by qualified electronic certificate, biometric validation or dual-factor cryptographic device. The application for extension must be justified by objective and duly substantiated economic circumstances, and remains subject to discretionary approval by the competent administration, which shall rule within fifteen (15) working days from receipt of the complete application.
Upon expiration of the initially granted period or, as applicable, the extended period in accordance with paragraph 2, any residual stock of products covered by this law must be subject, within an additional period of thirty (30) calendar days, to definitive and irreversible material destruction, carried out either voluntarily by the operator concerned, or, failing that, ex officio by the competent authorities, according to technical procedures guaranteeing environmental harmlessness and in accordance with the prescriptions set by ministerial decree. The costs relating to this destruction are fully borne by the holder of the stocks.
Article 6 — Entry into force and final provisions
This law enters into force on the first day of the sixth month following that of its publication in the Belgian Official Gazette, with the exception of the provisions of Article 5 relating to the transitional regime, which produce their effects from the day following said publication. The King is authorized to take, by Royal Decrees deliberated in the Council of Ministers, all regulatory measures necessary for the execution and effective application of this law.