In recent months, the safety and regulation of electronic cigarettes (commonly known as "e-cigarettes" or "vapes") has come under public scrutiny internationally by governments and the media following a series of e-cigarette related deaths and lung injuries reported in the United States ("US"). In particular, flavoured e-cigarette products which mimic the taste of popular sweets and desserts have been criticised for allegedly encouraging teenagers to try e-cigarettes.
In response, several states in the US have banned the sale of flavoured e-liquids (the liquid used in e-cigarettes) including the State of New York which banned such liquids with immediate effect from 17 September. New York retailers were required to remove the offending merchandise from store shelves within two weeks.
In the same month India, the second largest smoking population in the world after China, announced a complete ban of e-cigarettes citing a rise in vaping amongst young people as the basis for the ban. China’s National Health Commission has also announced plans to issue legislation for the industry in the near future.
As other jurisdictions turn up the heat on e-cigarette regulation, the UK's promotion of e-cigarettes as an effective smoking cessation aid has come under fire. Should e-cigarette manufactures and retailers brace themselves for new stricter regulations in the UK too?
Brief overview: Regulation of E-Cigarettes in the UK
In May 2016, the UK Tobacco and Related Products Regulations 2016 ("Regulations") came into force implementing the EU Tobacco Directive. The Regulations apply to electronic cigarettes, e-liquids and refill containers which can be used for the consumption of nicotine containing vapour and have not been authorised as medicines.
Measures introduced by the Regulations include:
- restrictions on the nicotine strength and quantity of e-liquids per container;
- mandatory notification to the Medicines and Healthcare Products Regulatory Agency ("MHRA") before any e-cigarettes and e-liquids are sold on the UK market;
- a ban on advertising e-cigarettes in the press, radio, online and on television, unless the e-cigarette is licensed as a medicine by the MHRA; and
- specific safety, presentation and labelling requirements.
General product safety legislation is also applicable to e-cigarettes and e-liquids in the UK which covers safety specifications for batteries and chargers alongside general marketing and labelling requirements for the import and sale of products sold in the UK.
What is the UK's policy position on the use of e-cigarettes?
In 2017 the Department of Health published a policy paper entitled "Towards a Smoke Free Generation: A Tobacco Control Plan for England" setting out the UK Government's five year plan to create a smoke free generation. The paper identifies e-cigarettes as an effective way for smokers to quit tobacco and positions the backing of such innovations as a key pillar of the strategy:
"The evidence is increasingly clear that e-cigarettes are significantly less harmful to health than smoking tobacco. The government will seek to support consumers in stopping smoking and adopting the use of less harmful nicotine products."
Separately, in 2015, Public Health England ("PHE") published an independent review on the safety of e-cigarettes concluding that e-cigarettes are 95% safer than cigarettes. Since then, this figure has been widely publicised by the UK government and health bodies, such as the NHS, to promote e-cigarettes as a tool to quit tobacco. The UK Government asked PHE to update its 2015 independent review of e-cigarettes (referenced above) on an annual basis until 2022, the next annual review expected to be published in February 2020.
Has the UK changed its position following recent events in the US?
Put simply, no. The UK has remained firm in its belief that e-cigarettes should be promoted as an effective tobacco cessation aid. Amid criticism, PHE issued a statement on Twitter confirming that its' "advice on e-cigarettes remains unchanged - vaping isn't completely risk-free but is far less harmful than smoking tobacco."
In response to calls on the UK Government to ban flavoured e-liquids, Martin Dockrell (Tobacco Control Programme Lead at PHE) warned that "banning flavours would likely provoke vapers to relapse back to smoking, leading to more adult smoking role models for young people, which we know is the key driver in young people starting smoking."
Mr Dockrell noted that the US reports suggested most cases had been linked to people using illicit vaping fluid, bought on the streets or homemade, some containing cannabis products, like THC. He went on to draw a distinction between US and UK e-cigarette products highlighting that, unlike in the US, e-cigarette products in the UK are tightly regulated for quality and safety.
Overall on the basis of PHE's response to recent criticism, there is no indication that the UK Government intend to tighten the regulatory framework surrounding e-cigarettes in the near future.
In fact, the Tobacco Control Plan for England policy paper suggests that the UK Government may have an appetite to relax e-cigarette regulations following Brexit. The paper states that the UK Government will "use Brexit an opportunity to review the current legislation" and "look to identify where [it] can sensibly deregulate without harming public health." However, the Department of Health will continue to monitor available evidence on the safety of e-cigarettes and this will ultimately inform public policy.