Vaping Enforcement Difficult as Taiwan May Use Consumer Protection Law

The Taiwanese e-cigarette market is facing policy challenges again.

According to reports from the "Shang Bao", as the new session of the Legislative Yuan is about to begin, the Ministry of Health and Welfare has decided to resend the draft amendment to the "Tobacco Harm Prevention Act" to address the regulatory needs of various new tobacco products.

To this end, the Ministry of Health and Welfare invited experts and scholars to hold a "Consultation Meeting on E-cigarette Related Regulations" on January 31. The meeting's agenda included discussions on the amendment of the "Tobacco Harm Prevention Act" and also included the possibility of using the "Consumer Protection Act" to address regulatory issues concerning e-cigarette products.

Of course, this has caused extreme backlash from industry players.

Using the Consumer Protection Act to address regulatory loopholes

In Taiwan, the so-called "Consumer Protection Act" is actually an abbreviation for the "Consumer Protection Law".

The Consumer Protection Act was established to clarify whether products indeed harm consumers' lives, bodies, health, or property. If there is a risk of harm, the authorities can order improvements, recalls, or destruction within a specified period; if necessary, they can order business operators to immediately stop the design, production, manufacturing, processing, import, distribution, or provision of services related to that product or take other necessary measures.

It is understood that due to the delay in passing the draft amendment to the "Tobacco Harm Prevention Act", the Ministry of Health and Welfare plans to use the relevant provisions of the Consumer Protection Act to fill the legal gaps in regulating e-cigarettes, and investigations will be conducted by the Ministry of Health and Welfare or local governments.

In other words, as soon as the Ministry of Health and Welfare or local governments confirm that e-cigarettes harm consumers' health or pose a risk of harm, they can require businesses to recall or destroy e-cigarettes.

Currently, Taiwan mainly regulates e-cigarettes under both the "Pharmaceutical Affairs Act" and the "Tobacco Harm Prevention Act". If e-cigarettes contain nicotine, they can be regulated as controlled substances under the "Pharmaceutical Affairs Act"; while nicotine-free e-cigarettes are regulated under Article 14 of the "Tobacco Harm Prevention Act", which governs products that resemble cigarettes or have similar core structures and usage methods.

However, according to a report from the New Taipei City Health Bureau, it is difficult to achieve regulatory effects on physical e-cigarette stores under the "Tobacco Harm Prevention Act". Not only can they not force businesses to remove products from shelves, but the likelihood of appeals being rejected is also quite high. In 2019, a total of 70 cases were banned, but out of the 6 appeals filed, 4 were dismissed.

This has created regulatory dilemmas for local governments and law enforcement personnel.

Therefore, the Ministry of Health and Welfare believes that if e-cigarettes can be regulated under the "Consumer Protection Act" in the future, by announcing harmful substances, as long as products are found to contain announced substances, not only can penalties be increased, but also the provisions of Article 36 of the Consumer Protection Act can be applied to require stores to remove or destroy products.

Chen Zai-jin, director of the Health Welfare Policy Research Center at Taipei Medical University, also believes that if the administrative agency considers e-cigarettes to be prohibited products, there is no need for testing; the "Consumer Protection Act" can be directly applied.

Chen stated that according to Articles 33 and 36 of the Consumer Protection Act, although local government regulatory actions are case-by-case, the current regulation of e-cigarettes is a national issue. "According to Article 38 of the same law, e-cigarettes should be directly regulated by the competent authority or the competent business authority, rather than being individually determined by local governments."
 
Scholars: No need to announce harmful substances

According to Chen Zai-jin, director of the Health Welfare Policy Research Center, administrative agencies do not need to test e-cigarettes; they only need to act according to Article 33, Section 2, Item 3 of the Consumer Protection Act.

This means that the Ministry of Health and Welfare can directly prohibit e-cigarettes and require businesses to provide proof of harmlessness. If businesses find it difficult to prove that e-cigarettes are not harmful, the administrative agency can require businesses to remove them from shelves according to Article 36 of the Consumer Protection Act.

Even if businesses can provide evidence that e-cigarettes are less harmful than traditional tobacco products, they still fall under the category of harmful substances and cannot evade the applicability of the Consumer Protection Act.

However, Wu Quan-feng, a deputy researcher at the Academia Sinica, stated that according to the current regulatory situation of the Ministry of Health and Welfare, e-cigarettes containing nicotine are classified as pseudo-controlled drugs regulated by the "Pharmaceutical Affairs Act"; while nicotine-free e-cigarettes fall under the regulation of Article 14 of the "Tobacco Harm Prevention Act".

Therefore, regardless of whether they contain nicotine, they are considered prohibited products. If they are to be regulated under the "Consumer Protection Act" and an investigation into their harmfulness is to be conducted, it may lead to further complications.

Wu explained that the testing of harmful substances should be separated from the applicability of the Consumer Protection Act and does not need to be synchronized. If it is necessary to explain the potential health risks based on the Consumer Protection Act, it does not require the announcement of harmful substances; it only needs to prove that there is a risk of health harm, not limited to announced items.

"As long as the administrative agency believes that e-cigarettes pose a risk of harm and businesses cannot provide evidence, the provisions of that article can be applied. Therefore, testing for harmful substances in e-cigarettes does not need to be linked to the Consumer Protection Act," Wu Quan-feng stated.

In addition, a lawyer representative participating in the "Consultation Meeting on E-cigarette Related Regulations" also believes that in discussing whether e-cigarettes are applicable under the Consumer Protection Act, it should be explained with current international research literature, such as the current fatal cases in the US, to indicate that the administrative agency has completed relevant investigations.

If sampling tests show that the vast majority of e-cigarettes in Taiwan also have similar harmful characteristics, then regardless of what harmful substances the e-cigarettes contain, they are considered harmful products.

E-cigarette devices are also considered harmful

On the other hand, Dr. Guo Fei-ran from National Taiwan University pointed out that under Taiwanese law, e-cigarettes do not fall under the category of tobacco products but are defined as consumer products, thus they should be regulated under the Consumer Protection Act.

Dr. Guo pointed out that since many studies leaning towards harmlessness come from tobacco companies, the duration of testing e-cigarettes is also relatively short, making it impossible to derive accurate harm data; and the UK government itself strongly supports the use of e-cigarettes for smoking cessation, emphasizing that e-cigarettes are 95% less harmful than traditional tobacco products.

Therefore, if businesses are only required to provide proof of harmlessness, it may be difficult to achieve effective regulation. It is still recommended to conduct tests for harmful substances to prove the harmfulness of e-cigarettes.

As for the regulation of smoking devices, Dr. Guo used guns and bullets as an example.

Although a gun without bullets does not possess lethality, it is still considered a prohibited item, even if it must be combined with bullets to be lethal. "E-cigarettes and their devices are the same; even if the device itself does not harm life, it can still be used with e-liquids, so selling e-cigarette devices is equivalent to selling harmful substances," Dr. Guo added.

Currently, the Consumer Protection Department of the Executive Yuan and the Ministry of Health and Welfare have not reached a consensus on the applicability of Articles 33 and 36 of the Consumer Protection Act. The Consumer Protection Department's position remains only a suggestion, and this regulation is an administrative supervision norm, applicable to individual cases rather than general cases.

Moreover, since the above regulations do not have clear legal basis, it may not be appropriate to announce them.

The Consumer Protection Department suggests that to achieve effective regulation of e-cigarettes, relevant scientific evidence should be provided to indicate what harmful substances e-cigarettes contain, and necessary measures should be taken according to the relevant provisions of the Consumer Protection Act after confirming that they will cause harm to consumers' lives, bodies, or health.

However, officials from the Ministry of Health and Welfare hold a different view. The official pointed out that even if the Consumer Protection Act cannot solve the issue in one go, as long as one case can be investigated, other cases can be handled similarly.

As for whether to announce the harmful substances of e-cigarettes, it is considered an administrative measure that the Ministry of Health and Welfare should be able to implement based on professional considerations, as long as it is clear that it is not based on the provisions of the Consumer Protection Act.
 
In summary, the new forces believe that using the Consumer Protection Act to regulate e-cigarettes is nothing more than a trick, as the regulation itself lacks legal basis, and the greatest responsibility lies with the relevant legislative bodies for their administrative negligence in regulating e-cigarette products.

The Ministry of Health and Welfare submitted the draft amendment to the "Tobacco Harm Prevention Act" as early as 2017 and submitted it to the Legislative Yuan that year. However, the Legislative Yuan has ignored the issue of regulating e-cigarettes, neither approving nor providing suggestions for amendments, resulting in the bill being left untouched for three years.

It should be noted that the Legislative Yuan takes three years to review amendments. In other words, once the draft amendment to the "Tobacco Harm Prevention Act" is submitted to the Legislative Yuan, it has simply been left to expire.

Therefore, rather than saying that the emergence of the Consumer Protection Act is a crisis for Taiwan's e-cigarette industry, it is more accurate to say that the Ministry of Health and Welfare is trying to give a way out for regulating e-cigarettes while also helping the legislative body "clean up its mess"?

The longer the problem drags on, the more distorted the market's regulatory policies will become. From the early "Pharmaceutical Affairs Act" to the expanded interpretation of Article 14 of the "Tobacco Harm Prevention Act", and now possibly the "three laws working together", all regulations are piled onto the industry, making those involved in e-cigarettes not only wronged but also a shield for regulatory failures.

According to local industry players, this may be what is meant by "ugly eating"?

If Taiwan passes the Consumer Protection Act to regulate e-cigarettes in the future, it may also lead to many issues, such as excessive sugar being harmful to health, and excessive alcohol consumption causing cardiovascular diseases. These issues will not only prompt e-cigarette operators to be serious about "regulatory balance", but also the policies of over-regulation or under-regulation may pose greater challenges for frontline law enforcement.

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