There is growing concern in the general healthcare and regulatory enforcement sectors regarding the increasing availability and use of illegal and potentially dangerous vapes, which are often marketed at young people.

With the popularity of vapes rapidly growing, it appears that a significant number of retailers are selling illegal products that pose real challenges to public safety.

As reported by the BBC, Westminster Trading Standards have recently conducted an operation targeting illegal vape sales, which trading standards officers describe as the “biggest threat” on the UK's high streets. This resulted in large volumes of illegal vape pens being seized, which, in addition to health risks, present significant challenges to disposing of the products safely and sustainably.

Trading Standards across London in particular are on a mission to crack down on non-compliant vapes, and as part of a wider programme are paying unannounced visits to shops to see if they are selling illegal products. In recent operations, The City of London Corporation’s Trading Standards team have seized £40,000 worth of banned vapes. Retail owners have been interviewed under caution, issued with a notice, and are faced with paying hundreds of pounds in destruction costs.

The Regulations

Retailers should refer to the Tobacco and Related Products Regulations 2016 (‘TRPR’), which set out several requirements relating to the sale of e-cigarette and vape products. Some of the key requirements include:

Volumes:

• E-cigarette capacity must not be more than 2ml
• maximum volume of nicotine-containing e-liquid for sale in one refill is 10ml
• Maximum nicotine strength of e-liquids is 20 mg/ml

Packaging:

• Labelling on the front and back to state ‘This product contains nicotine which is a highly addictive substance’
• No features that incorrectly promote its health effects
• No suggestion that it has vitalising, energising, healing, rejuvenating, natural or organic properties or other health/lifestyle benefits
• No reference to taste, smell or other additives (except flavourings)
• No features that resemble a food or cosmetic product
• No suggestion of environmental advantages, such as improved biodegradability
• List of all ingredients in the product, including the nicotine content
• A recommendation to keep the product out of the reach of children
• An information leaflet setting out the instructions for use, possible side effects, warnings for specific risk groups, addictiveness and toxicity and contact details of the producer

It is a criminal offence to breach any of the regulations listed under Part 6 of the TRPR. These regulations cover:

• Electronic cigarettes and refill containers
• Product requirements
• Product information and labelling requirements

Enforcement and Penalties for Breach

My shop has been visited by Trading Standards – what shall I do?

The enforcement process normally starts with a spot-check by Trading Standards in the form of a covert shopping visit, which may be followed by an overt visit by officers and the seizure of illegal goods being sold or stored to the premises.

Generally, the retailer will receive an invitation to attend a voluntary interview under caution (subject to the Police and Criminal Evidence Act 1984), where evidence of the breaches will be put forward.

This can be followed by the issuance of a penalty notice and fine or formal prosecution in the criminal courts, which can result in imprisonment for a term not exceeding three months, or a fine or both.

There is a statutory defence contained within section 50(1) of the TRPR, which states that, ‘in any proceedings for an offence under these regulations brought against a person who supplies any tobacco product or related product in breach of these regulations, it is a defence that the supplier exercised all due diligence to avoid committing the offence’.

It is therefore essential that any business or individual faced with an investigation seek expert legal advice as soon as possible, to mitigate the adverse impact and potentially avoid prosecution.

Time For Tighter Controls? 

According to Cancer Research UK, despite there being no “good evidence” that vaping causes cancer, e-cigarettes are not entirely risk free and the long-term effects are unknown due it being a relatively new product. They are one of a number of organisations sounding the alarm and it is likely that we will see further measures brought in at some point in the future that will introduce even tighter controls on the sale of these of these products.

To tackle the popularity of vaping with those under the age of 18, Action on Smoking Health (ASH) have made numerous recommendations to the Government for additional control measures to help prevent underage vaping. These are:

1. Reducing appeal of vapes to children by:

• Taxing disposable vapes which are the cheapest and most popular vape for children
• Stricter regulation of advertising and promotion, particularly at point of sale in shops
• Stricter regulation of packaging, labelling and product design features (e.g., prohibiting cartoon characters; product names associated with sweets; and design features such as “light up” vapes

2. Reducing underage access to vapes by:

• Better funding for enforcement using MHRA e-cigarette notification fees
• Putting vapes behind the counter
• Mandatory age verification in shops for anyone looking under 25
• Prohibiting free distribution (currently legal to anyone of any age)

Prevention is Always Better than the Cure

In order to keep within the regulations and to protect yourself and your business from possible prosecution, effective risk-management measures relating to the sale of vapes should include the following:

• Consideration of the requirements of the TRPR in relation to product specifications and packaging
• Challenge 21 or 25 policy
• Regular staff training
• Maintain sale refusal logs
• Strategic store/product layout and signage

If you are a retailer who stocks and sells e-cigarettes and you would like any advice or support in this area then please contact our Business Crime & Regulation team, who will be happy to assist.