EU BARRISTER

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The inside of our lungs contain very thin, delicate membranes designed to allow for oxygen and carbon dioxide to cross between the air sac alveoli and the blood capillaries running in the lung tissues. On the approach to the alveoli, inhaled air is filtered by specialist hair-like fibres – cilia – which catch particles of dirt, bacteria and unwanted substances, whilst a system of cells secretes sticky mucus to further trap the invading crap, enabling the clever cilia to waft the debris back towards the mouth for excretion and away from the lung membranes, keeping the lungs clean by a clever sort of biological conveyor.      

Cloud of smoke
Image by StockSnap from Pixabay

Appreciating something of how the lungs function means that it is counter-intuitive that vaping and e-cigarettes do not irritate lung tissues given the complex, delicate physiological system designed to deliver clean air to the alveoli. As e-cigarettes release “smoke” which is a combination of chemical flavour molecules tied to chemical carrier molecules that are breathed into the lungs, it is hard to believe that inhaling such chemical substances would not annoy or overwhelm this complex physiological protective system, causing it to malfunction or fail, and thus cause long-term damage to the health of the respiratory system.

Therefore, I have not been surprised to read of information this month coming out of the States where there is a mounting body of evidence regarding deaths and lung disease thought to be connected to vaping. In September 2019 the Observer and Guardian newspapers have reported on the evolving evidence that vaping causes lung disease and can even result in death. The picture is complicated, however, by the fact that e-cigarettes have been considered to be a lot less harmful than smoking nicotine cigarettes and e-cigarettes have in fact been promoted as a tool to assist people wishing to stop smoking “regular” nicotine cigarettes. In the USA the phenomenon of large numbers of children using e-cigarettes, allegedly attracted by their flavours, is such that even President Trump, normally famous for his liberal approach to, and lack of interest in, State regulation of personal choices, plans to ban children from vaping.  

The Observer newspaper reports that the plethora of scientific papers on the subject reach contradictory and confusing conclusions. One research associate at the University of Calgary has observed, however, that the studies published by the e-cigarette and tabaco industry are around 90% more likely to find that e-cigarettes cause no harm compared to other scientific papers published without such conflict of interests.

In the UK, the Observer report that in 2015 Public Health England advises that vaping is 95% less harmful than smoking traditional cigarettes. This view is supported by Professor Britton who supports electronic cigarettes as a healthy smoking reduction strategy. The Observer also notes that some other countries have a very different, critical stances towards e-cigarettes, citing examples from Israel, India and Denmark. The newspaper also gives an example of an e-cigarette brand which is being prosecuted in the state of North Carolina whilst also being subject to a congressional committee investigation.

The Tobacco Products Directive (2014/40/EU) sets out safety and quality requirements for e-cigarettes, rules regarding packaging, labelling and health warnings and requires the monitoring and reporting of developments related to e-cigarettes. The Directive is brought into UK legislation by the Tobacco and Related Products Regulations 2016. Regulation 36(5)(d) of the 2016 Regulations says that e-cigarettes must not include ingredients (except for nicotine) which pose a risk to human health in heated or unheated form. The Regulations set out requirements for health warnings and labelling, including warnings that nicotine is addictive. However, a cursory reading of the Regulations show that the focus is on nicotine, rather than associated substances in the e-cigarettes.

As an expert in respiratory disease litigation this raises three important topics in my mind. Firstly, the evolution of lung-damage evidence against a background of vested interests (the cigarette industry) and in the context of a wonder product providing protective properties (in this case protections from the now well-known dangers of nicotine smoking) spookily mirrors the evolution of knowledge of the dangers of asbestos in the 1960s and 1970s. Even in 1945 when Mr Garret (HM Chief Inspector of Factories) wrote his famous letter to the ship building and ship-repairing industry stakeholders regarding the dangers of asbestos insulation on board ships the dangers of asbestos as a substance were well-known. The two-page letter said, inter alia, that “whilst asbestos dust may not have any apparent effects at first, experience shows that, particularly if workers are exposed to the dust in substantial concentrations, serious results are apt to develop later”. Hale LJ considers the issue of unknown future risk associated with a known dangerous substance at para 52 Jeromson [2001] EWCA Civ 101. The Garret letter alluded to the unknown dangers associated with asbestos inhalation, and yet asbestos continued to be used and use of asbestos increased in the 1950’s and 1960’s, being incorporated in a myriad of ways in construction projects, for example, as the magical fire protection and insulation material. However, it was not until the famous Sunday Times publication in October 1965 that the information that even very small quantities of asbestos could trigger malignant changes in lung cells, that the message started to get out that even limited exposure to small amounts of asbestos could cause mesothelioma and fatal lung cancer. Whilst respiratory disease experts still argue on a daily basis about dates of knowledge and how this is reflected in legal standards on causation, the truth is that the very lucrative asbestos industry continued to ply its trade and ordinary workers or people living or working in buildings containing asbestos did not have the information to query the risks to asbestos that they were facing. In the context of asbestos disease litigation, the legal burden is still on disabled and dying claimants to prove tortious events decades previously even if a paymaster can be traced.        

Secondly, given the now well-known risks of lung disease associated with general air pollution, particularly in large cities, and given the evidence which points to the subtle effects of e-cigarette chemicals on the lungs from the non-nicotine substances, it raises the question of the reliability of warnings about the health effects of e-cigarettes and whether the overall irritant and pollution is factored into the evidence relating to the health warnings. Presumably the rationale behind the directive does not factor in someone using e-cigarettes whilst also living in a dangerously polluted city atmosphere which exceeds known safe levels for respiratory irritants. Nor have I delved into neuro-psychology of addiction, particularly in children with developing, perhaps more neuroplastic brains and the allure of flavours.  

Thirdly, the issue of Brexit and status of EU law raises its ugly head. After Brexit the UK government would not be obliged to implement any tightening of any future EU regulations. Further, it would be more difficult to challenge any UK government which decided to loosen the regulation of e-cigarette products by use of “Henry VIII powers” or secondary legislation. Also, in the anticipated flurry to clip (or decimate, as some fear) the features of the acquis communautaire which currently protect individuals, there would be a risk that a watering down of even the existing regulation would not be noticed, except by the grateful tobacco industry who also seem to have invested in promoting vaping as an alternative to smoking.  

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About Abigail Holt

Abigail Holt is a Barrister based in Manchester with expertise in negligence/tort cases, health, disease, medical issues and EU law as it applies to UK and EU citizens alike. She is passionate about bolstering the rule of law via European and international norms and standards, enhanced by increased diversity in the legal professions. She builds resilience by endurance swimming and switches off by learning Spanish and French. She is part of several networks of European lawyers and judges.