Spotlight on issues surrounding vaping products

Jane Parsons looks at the current regulatory landscape and gives an overview of issues with enforcement

An e-cigarette (or vape) is: ‘a device that allows a user to inhale nicotine in a vapour rather than smoke. They work by heating a liquid that typically contains nicotine, propylene glycol, vegetable glycerine and flavourings’ (NHS)

Illicit vapes are the products trading standards professionals are most concerned about on the UK’s high streets, according to research published by the Chartered Trading Standards Institute (CTSI) research in January 2023. Large scale seizures of vaping products that don’t comply with legal standards include City of London Corporation’s Trading Standards seizing £40,000 worth of banned vapes from a Square Mile retailer, and Heart of the South West Trading Standards seizing £20,000 illicit tobacco and vapes from a Taunton shop, both in February 2023.

Concerns over underage vaping have been widely reported. NHS figures for 2021 showed that 9% of 11 to 15 year old children used e-cigarettes, up from 6% in 2018. The government ran a call for evidence on youth vaping to:

• identify opportunities to reduce the number of children accessing and using vape products
• ensure they are easily available as a quit aid for adult smokers.

Legal definition and regulation

The legal name for vapes is ‘nicotine inhaling product’. There are two main elements to their regulation — the manufacture of the product itself and restrictions on their sale.

Manufacture

Part 6 of the Tobacco and Related Products Regulations 2016 (TRPR), as amended, sets out the requirements for manufacture of nicotine inhaling products.

Although this is not an exhaustive list, the headline requirements are:

• vapes and e-cigarettes must have tanks with with a capacity of no more than 2ml
• dedicated refill containers must have a volume not exceeding 10ml
• the nicotine-containing liquid in an e-cigarette or refill container must not contain nicotine in excess of 20 mg per ml
• an e-cigarette must be able to deliver a dose of nicotine at consistent levels under normal conditions of use
• an e-cigarette must be child-resistant and protected against breakage and leakage. It must be tamper evident, meaning it should be obvious that the product or packaging has been opened
• the liquid in an e-cigarette must not contain certain ingredients, including colourings, caffeine and taurine (an amino acid)
• all e-cigarettes and e-liquids must be notified to and published by the Medicines and Healthcare products Regulatory Agency (MHRA) before they can be sold

These regulations don’t cover nicotine-containing products that are authorised as medicines.

Restrictions on sale

Products aren’t legally compliant for supply until a notification is published by the MHRA on the MHRA publication home page. It’s producers who must notify the MHRA. A producer is anyone who manufactures or imports e-cigarettes or refill container products and anyone who re-brands them as their own.

Retailers should check that e-cigarettes or e-liquid products they sell have been notified to the MHRA. Consumers should only buy nicotine-containing e-cigarette products that are listed on the MHRA publication pages. The MHRA has published advice for consumers and advice for retailers and producers. It explains how to view information about products notified to the MHRA using the MHRS publication home page. Selecting the ‘ECIG’ tile gives direct access to the Great Britain notified products list.

The Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015 introduced a minimum age of 18 for sales of nicotine inhaling products. However, there are currently no restrictions on giving free vape samples to under 18s, or for selling nicotine-free vapes to under 18s. This is because the law prohibiting free tobacco samples only applies to tobacco products and e-cigarettes don’t contain tobacco (Tobacco Advertising and Promotion Act 2002 s9).

The vaping landscape in practice

So in the most simple terms — nicotine inhaling products must be notified to the MRHA and not sold to under 18s. However, the landscape is more complex than a single sentence summary.

The first complicating factor is the supply and sale of illegal vapes. These products are manufactured and supplied by individuals and groups who have no intention of manufacturing them in compliance with the TRPRs. They are distributed to general retail premises such as mobile phone shops and convenience stores.

The CTSI has raised concerns that these illegal, non compliant products are being marketed specifically to children with packaging that mimics confectionary brands. This packaging in itself is a potential infringement of the intellectual property rights of well-known brand holders. Retail premises who choose to sell products that haven’t been notified to the MHRA will be less likely to have concerns about breaking the law over underage sales. However, this doesn’t mean that regulated products are not also being supplied to underage children by retailers.

The second complication factor is the withdrawal from sale of products notified to the MHRA. This is because certain batches of high street branded vapes which are legally manufactured and distributed, tested above the legal limits for nicotine strength. To clear up any confusion, although withdrawn products don’t conform to the MRHA standards, they are not to be compared to the illegal vapes that were never manufactured with the intention of any compliance to regulations. Certain batches of some branded disposable vapes were withdrawn early in 2023 as they were found to be non-compliant. It was reported that they contained 3ml nicotine liquid rather than the 2ml allowed by TRPRs.

The manufacture of illegal vapes results in products that often have more nicotine than the regulations allow, and chemicals that shouldn’t be there in any amount at all. To put this in perspective the legal limit of nicotine in disposable e-cigarettes must not exceed 2ml in capacity — around 600 ‘puffs’. Illegal vapes seized by Brighton and Hove City Council Trading Standards on 5 July 2023 had capacities varying between 3,500 puffs and 9,000 puffs.

So, in short, we have a multi tiered landscape

• products that are in themselves non-compliant and possibly infringing intellectual property rights and which should not be on the market at all
• underage sales of non-compliant products
• underage sales of notified products
• notified products which have been found to be non-compliant and have been withdrawn from the marketplace

What does the future hold?

The government’s call for evidence on youth vaping is focusing on the following themes:

• building regulatory compliance: ensuring only adult smokers can access legally compliant vape products
• the appeal of vape products: how the appearance and product characteristics of vapes may attract children
• marketing and promotion of vape products: how the marketing and promotion of vapes may attract children
• the role of social media: the impact of social media on the uptake and use of vaping by children
• effective educational approaches to prevent the uptake of vaping by children
• the impact of vapes on the environment, particularly disposable products
• understanding the vape market

There has also been an announcement by the government of their intention to review the sale of nicotine free vapes to under 18s, and to legislate to prevent under 18s being given free vape samples.

CTSI is calling for:

• vaping products to be out of reach of children and out of sight behind the counter
• a registration scheme for retailers who sell tobacco and nicotine products
• reform of the penalty for selling to people under the age of sale.

CTSI has also created a vaping hub with a collection of resources including recent media coverage.

What should advisers know?

The following should be reported to trading standards via the Citizens Advice consumer helpline:

• sales of any vaping product to anyone underage
• sales of any suspected illicit vaping product
• faults with any notified vaping products

Jane Parsons is a Consumer Expert at Citizens Advice.

The information in this article is correct as of the date of publication.

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