In the name of the People!

Why Sofia’s court ruled indoors use of heated tobacco legal?

Richard Alibegov, the co-chair of the Restaurant’s Association in Bulgaria, was triumphant on November 1, 2023 when a District Court canceled a fine, issued to a bar manager in Sofia for allowing his customers to use heated tobacco products. The tobacco industry had greater reasons to celebrate.

The court judgment’s reasoning was solid: heated tobacco products were not covered by the country’s ban on smoking indoors[1]. So there was no legal ground for fining an offender.

The judgment did not cost much – the State Health Inspectorate was to pay back some 400 BGN (Euros 200) for legal costs. Yet, it had major consequences: almost all fines imposed for using smokeless tobacco products in indoor establishments have been lost in court, Alibegov bragged. And justified it in his own words: “Smokeless cigarettes do not harm non-smokers, they have weaned citizens from smoking indoors”[2].

Disregarding scientific accuracy, this crude statement fully coincides with the corporate communication of the tobacco industry. And serves its purpose to portray heated tobacco products as less dangerous and somehow more acceptable for public health, than traditional cigarettes. And legal!

Justice delivered

Judge Pavel Panov at Sofia’s District Court had duly checked the applied laws and submitted evidence on case 20231110213799, before pronouncing a verdict. This is essential, as Bulgaria’s legal system does not rely on precedents, so every case is decided on its own merit.

He established that the case proceedings were in accordance with Art. 59 of Bulgaria’s Law on Administrative Violations and Penalties (LAVP). The plaintiff had complained against a 500 BGN (250 Euros) fine, imposed by the director of the Sofia Metropolitan Regional Health Inspectorate (MRHI) for violation of Art. 56, para. 1 ЗЗ of Bulgaria’s Health Act.[3]

The court heard that back on March 3, 2023 a MRHI chief inspector established that in the Manko Bar in Sofia many customers were using “smokeless tobacco products” – Iqos and Glo. There was no tobacco smoke, smell or smoke coming from the established devices. This is because “in reality, the devices were smokeless tobacco products that did not cause the tobacco to burn, but only to heat it below the combustion temperature and no smoke/smoke was emitted when they were used”, judge Panov explained in his decision.

He ruled out most of the plaintiff’s claims. The court confirmed that the plaintiff was indeed the “salon manager” who carried out official functions of managing the establishment. He had allowed customers to smoke the specified products, which the inspector considered a violation of the Health Act and issued a Penalty Protocol. The premises were closed – in a building, and the health inspector was entitled to perform the check in her official capacity.

The only inconsistency between the testimonies of the questioned witnesses was in relation to what products the visitors used. The judge determined eventually that the plaintiff was punished for the use of smokeless tobacco products.

Between two laws

The Sofia District Court considered information provided by Philip Morris Bulgaria – the official importer of the tobacco products used in the disputed case – that they are smokeless. They heat the tobacco up to 350 degrees, but do not promote combustion and when they are used, no smoke/smoke is formed, the court decision explained. Other documents attached by them from the Ministry of Economy showed that the device used was registered as a smokeless tobacco product.

This was decisive for the ruling. While the court ascertained that the fine was issued within the procedural terms provided by Bulgarian law, it found that the substantive law was violated and the act did not constitute an administrative violation.

Smoking indoors (and in certain outdoor spaces) has been banned in Bulgaria since June 1, 2012, by Art. 56, para. 1 of the country’s Health Act. Violators should be punished with a fine of 300 to 500 BGN, with a pecuniary sanction of 1,000 to 1,500 BGN, when the violation was committed by a sole trader, or with a pecuniary sanction of 3,000 to 5,000 BGN, when the violation is committed by a legal entity. However, judge Panov pointed out, the legislator has only introduced a ban on smoking in closed public places, not the use of tobacco in general.[4]

The court found that the use of the smokeless tobacco products does not fall within the scope of the legislative ban and allowing their use in closed public places is not a violation of the said provision. This is because the additional provisions of the Health Act lack a legal definition and explanation of the concept of smoking. Instead, “tobacco products” are defined by the Additional Provisions of another law – the Act on Tobacco, Tobacco [products] and Related Products (ATTRP).

According §4 of the latter, “Tobacco products” are products that can be consumed and are composed even partially of tobacco. “So, as can be seen from the reference of the official importer of the Iqos and Glo devices, they are a tobacco product, contrary to what is stated in the complaint”, the court said. But Article 56 of the Health Act does not prohibit any use of tobacco products in closed public places, but only smoking.[5]

Respectively the ban applies only on smoking tobacco, but not other forms of its use. Because article §5 of the ATTRP specifically excludes smokeless products from the definition of “smoking tobacco products”. Referring to this legal definition, only tobacco products that are not smokeless, i.e. emit smoke/cigarettes, should be included in the scope of the prohibition under Health Act, whether or not smoke/smoke is emitted from the tobacco product during use, judge Panov concluded.

Article §5e of the ATTRP does not even mention heated products among the examples of smokeless tobacco products6. This is because back in 2016, when the definition in question was added to the law, there were no heated products on the market yet. Instead, the legal text points at chewing tobacco, snuff and oral tobacco. But the list is obviously not exhaustive, but exemplary, judge Panov observed.

The magistrate had no choice but to enact the law. He concluded that allowing the use of devices for heating, but not for igniting/burning a tobacco product, does not constitute a violation of the smoking ban. And revoked the fine.

A matter of political will

In spite of the chilling waves it sent to tobacco control advocates, the Sofia court judgment resolved a years’ long ambiguity and firmly placed the resolution in the field of political decision makers. “If the legislator intended to prohibit the use of any type of tobacco products provided for in the ATTRP, it should have been indicated that it was their use that was prohibited, and not only smoking”, judge Panov reiterated in the court decision.

Just like Alibegov, the tobacco industry and its front groups were quick to denounce the need for legal changes. Philip Morris, the flagship promoter of heated tobacco products, commented for that the court has interpreted the Health Act, which does not explicitly prohibit the use of smokeless cigarettes in indoor establishments. The company warned against legal changes, repeating its claims that its heated products “do not harm the health of non-smokers, which was precisely the purpose of the ban imposed in 2012”.

Dr. Maria Kusheva, an Associate at the Institute of Tobacco and Tobacco Products (ITTP), was much more cautious. In a media interview she justified the court’s ruling and the legal distinction made between “smoking” and “smokeless” products in the law[7]. The ITTP, once created and managed by former tobacco monopoly Bulgartabac, is part of the Agricultural Academy of the Ministry of Agriculture and Food and provides expert opinions which traditionally reflect the industry’s views.

“We believe that the problem is with the implementation of the legal ban on smoking and it cannot be solved by introducing a ban on the use of smokeless products – on the contrary, this would mislead the public and dilute their perception of the dangerous impact of tobacco smoke on the impact of aerosol emissions from smokeless products indoors, she cautioned.

The spirit was out of the bottle. Renowned public health and tobacco control advocate and Member of Parliament Alexander Simidchiev, MD, immediately announced that he would move with a legislative proposal to fix the missing definitions of “tobacco products” and “smoking” in the Health Act. This is where they should have belong in the first place, explained Masha Gavrailova, MD – a senior expert at the Smoke Free Life Coalition (SFLC) and former Head of Non-infectious Diseases Directorate at the MOH[8]. During her tenure as a civil servant she oversaw Bulgaria’s ratification of the WHO’s Framework Convention on Tobacco Control (FCTC) in 2006 and its consequent introduction to national law.

The controversial definition of tobacco products was added to the ATTRPin 2016, in compliance with the amended Tobacco Products Directive of the EU. At the time the definitions were adopted, heated tobacco products were not present in Bulgaria, and had not been considered, Gavarailova explained.

But since 2019 the civic tobacco control coalition has been repeatedly inisting with the Ministry of Health that a definition of smoking in the Health Act needs to be amended, as to include all tobacco control. Unfortunately previous health ministers did not want to deal with Art.56 and change the law, said Gavrailova. Political will to resolve the problem has been lacking, favouring the tobacco industry’s interests, she concluded.

2023 saw a change of climate at the MOH, with the arrival of Prof. Hristo Hinkov as minister, and Associate Prof. Mihail Okoliyski as his deputy. Both had been actively engaged with tobacco control in their previous roles with the National Centre for Public Health and Analyses, and the WHO office in Bulgaria, respectively. During the summer of 2023 the MOH initiated a discussion with the Ministry of Economy over a new definition of smoking which would include all tobacco products. Eventually a decision was made, that this definition should be made in the Health Act.

This was correct, Gavrailova said. But the latest revision of the Health Act in December 2023 failed to resolve the problem.

Now, following the Sofia District Court’s judgment, the MOH is determined to act. Immediate legal changes to bring heated products within the scope of tobacco control were promised by deputy minister Okoliyski[9]. A new proposal by the MOH will replace the term “tobacco smoking” by “smoking tobacco products and water pipe products that do not contain tobacco”. A new article is also created to improve tobacco control – not only by introducing a clear definition of tobacco products, but also by expanding enforcement to labour, food safety directorates, the police and officials appointed by local mayors.

Heated products are tobacco products and should be regulated as such in accordance with WHO guidelines and the relevant decision of the FCTC’s eighth Conference of the Parties (COP8), the deputy minister said. Under the European Union’s Tobacco Products Directive, HTPs are considered new tobacco products, which imposes several regulatory requirements, including before a product is placed on the market. However, the extent of these requirements depends on whether a product is defined as a smokeless or a smoking tobacco product, he explained.

A tobacco control champion by heart and profession, Okoliyski also recognizes the power of tobacco industry lobbyists. The deputy minister fears the strong influence of the informal lobbies of restaurateurs and cigarette companies among MPs.”I am absolutely worried about lobbying Parliament because previous proposals to tighten controls on indoor smoking in bars and restaurants have been rejected,” Okoliyski said to Euractive Bulgaria[10]. ⧫

  1. Sofia City Court. Ruling from 13.11.2023 (in Bulgarian).
  2. An overturned fine for smoking smokeless cigarettes in a bar has opened a debate about a loophole in the law. 23.01.2024 (in Bulgarian).
  3. Sofia City Court. Ruling from 13.11.2023 (in Bulgarian).
  4. Ibid
  5. Ibid
  6. Act on Tobacco, Tobacco [products] and Related Products. (in Bulgarian)
  7. Assoc. Dr. Maria Kusheva: Heated tobacco products have undergone regulatory and scientific evaluation and are classified as smokeless. 01.02.2024.
  8. Masha Gavrailova, MD. 13.02.2024. Personal interview.
  9. Mihail Okoliyski, MD, Assoc. Prof. Deputy Minister of Health and former WHO representative to Bulgaria. Personal interview.
  10. A complete ban on smokeless cigarettes indoors in establishments is proposed. By Krassen Nikolov. EURACTIV BULGARIA. Feb 21, 2024 (in Bulgarian)