Regulatory Restriction of E-Vapor Products Under International Human Rights Law

Bottom Line: E-cigarette policymaking is increasingly running up against human rights law -- specifically the right to human health. The obligation of governments around the world to provide health for their citizens enshrined in human rights treaties may preclude nations from introducing overly restrictive regulations on e-cigarettes, which are less harmful than traditional smoking. This conclusion suggests complete bans or stringent fiscal measures on e-cigarettes may be a human rights violation.

The right to health is a prerogative inherent to every human being. The protection of the human right to health requires nations to take into consideration this objective in the design and implementation of their laws and policies, including those regarding taxation and trade. Governments must examine the data showing that e-cigarettes are relatively safe and that there is a growing number of consumers using them as an alternative or substitute to smoking.

Despite evidence that shows a reduction in health risks for individual smokers who switch entirely from smoking conventional cigarettes to e-cigarettes, some nations have set up direct or indirect bans on sales and possession of these products. Today, roughly twenty-seven countries have entirely banned the introduction of e-cigarettes into their territories. In nine others, the sale of nicotine-containing e-cigarettes is prohibited. Others are considering following suit.

The implications of such policies are that a conscious decision is being made not to financially incentivize smokers to switch to reduced-risk e-cigarettes. Such a policy is likely to have a particular impact on those in disadvantaged socioeconomic groups, as they are more likely to be price-sensitive and already suffer health inequalities.

In pursuit of ensuring the right to health, e-cigarettes should be taxed less and subject to less-strict regulations in order to allow a wider group of current smokers to access them. Adopting tax measures that allow wide consumer affordability of EVPs may empower people to take individual responsibility to protect their own health. Imposing the same tax burdens on e-cigarettes and conventional cigarettes fails to take into consideration the harm reduction derived from the use of these new products. Such an approach appears inconsistent with the duty to protect human health.

By creating economic incentives for the use of lower-risk e-cigarettes, governments can encourage people to switch away from smoking, thereby complying with their duty to respect the human right to health. 

Read the full study HERE.