Where Market and Health Collide: The Limits of Policy Experimentation in EU Prevention of Non-Communicable Diseases and Tobacco Control

European Union (EU) policy on non-communicable diseases (NCDs) is primarily conducted through Article 114 Treaty on the Functioning of the European Union (TFEU). This contribution submits that the use of this provision to regulate unhealthy consumptions – tobacco, food, and alcoholic beverages – gives rise to a number of constitutional tensions and malfunctions, regarding in particular the principles of subsidiarity, conferral and the use of minimum harmonisation. This is due both to the economic nature of the EU’s internal market powers and the characteristics of lifestyle-related health risks as a regulatory object. This affects, as a result, the clarity and legitimacy of EU action in the field, as well as undermines the quality of the legislation and the level of public health protection. To tackle these problems, a Treaty change would be the best way forward, which could be paired to the broader reforms necessary to the building of a strong and balanced EU Health Union.