‘E-cigarettes’ and Vaping | Protection Against Illegal Products
Vaping is the inhaling and exhaling of vapour produced by an electronic device called a vape or e-cigarette. Vapes are battery-operated devices that heat a liquid often containing nicotine and flavouring that creates a mist that users breathe in.
These vaping devises which come in various forms such as ‘e-cigarettes’, ‘vapes’, ‘vape pens’, ‘vape bars’ and ‘cigalikes’, all refer to the same class of products.
An e-cigarette allows nicotine to be inhaled in vapor form. Since e-cigarettes do not burn tobacco, they do not produce tar or carbon monoxide, which are two of the most harmful components associated with smoking traditional tobacco, cigarettes or cigars.
Accordingly, whilst not totally risk free, the NHS states that “nicotine vapes are one of the most effective stop smoking aids.”
In the UK, nicotine vaping products are regulated to ensure safety and quality. All products must be reported to the Medicines and Healthcare Regulatory Agency (‘MHRA’) disclosing details of all ingredients.
Vaping has become extremely popular amongst individuals trying to quit tobacco smoking and among segments of the younger generation. Inevitably, this surge in popularity has resulted in many illegal and inferior products entering the market, which have been produced solely for profit, without regard for health and safety risks.
As a result, Trading Standards officials regularly inspect retail outlets to ensure all products associated with vaping comply with strict UK regulations. Retailers violating the regulations often face prosecution.
It was reported that in the second half of 2022, over 1.4 tonnes of illegal vapes were seized from shops in the North East of England. While in Kent, over 300,000 counterfeit vaping products were seized at Channel ports in December alone.
Amandeep Murria of KANGS sets out the statutory requirements.
UK Rules on Vaping
The Regulations state:
- only those aged 18 and over can buy vapes and e-cigarettes,
- caffeine, taurine and certain other ingredients are banned,
- packaging should be childproof,
- all e-cigarette and e-liquids containing nicotine have to be notified to the MHRA and listed on its website,
- any product not listed should be returned to the seller or Trading Standards,
- each vape should have a maximum tank size of 2ml,
- each vape should contain a highest nicotine strength of 20 mg/ml (or 2%),
- each vape should provide a maximum of about 600 puffs.
- a refill bottle should have a maximum volume of 10ml,
- nicotine ingredient warnings must appear on the packaging.
Nicotine-free e-cigarettes do not have to be certified by the MHRA. They are subject to product safety regulations by Trading Standards.
The Relevant Legislation
The requirements outlined above appear in The Tobacco and Related Products Regulations 2016 as follows:
Product requirements
36. (1) No person may produce or supply an electronic cigarette or refill container unless it complies with paragraphs (2) to (8), so far as relevant to the product concerned.
(2) Nicotine-containing liquid which is presented for retail sale must be in—
(a) a dedicated refill container in a volume not exceeding 10 millilitres; or
(b) a disposable electronic cigarette, a single use cartridge, or a tank, in a volume not exceeding 2 millilitres.
(3) The capacity of the tank of a refillable electronic cigarette must not exceed 2 millilitres.
(4) Nicotine-containing liquid which is presented for retail sale in an electronic cigarette or refill container must not contain nicotine in excess of 20 milligrams per millilitre.
(5) Nicotine-containing liquid in an electronic cigarette or refill container—
(a) must not contain any additive referred to in regulation 16 (no vitamins, colourings or prohibited additives in tobacco products);
(b) must be manufactured using only ingredients of high purity;
(c) must not contain substances other than the ingredients notified under regulation 31, unless present in trace levels, where such trace levels are technically unavoidable during manufacture; and
(d) must not include ingredients (except for nicotine) which pose a risk to human health in heated or unheated form.
(6) An electronic cigarette must be able to deliver a dose of nicotine at consistent levels under normal conditions of use.
(7) An electronic cigarette or refill container must be—
(a) child-resistant and tamper-evident; and
(b) protected against breakage and leakage.
(8) An electronic cigarette or refill container must have a mechanism for ensuring re-filling without leakage (unless it is a disposable electronic cigarette).
Sentencing Upon Conviction
An offence will be dealt with as an ‘either way’ offence, meaning that it can be tried either in the Magistrates’ Court or the Crown Court.
Upon conviction, a defendant will face in the:
- Magistrates’ Court: a fine, up to six months imprisonment or both.
- Crown Court: fine, a term of imprisonment not exceeding two years or both.
Ancillary Orders
Additionally, the following may also be imposed:
- Confiscation Orders under the Proceeds of Crime Act 2002
- Forfeiture – section 97 of the Trade Marks Act 1994
- Deprivation Orders
Who Can I Contact for Advice and Help?
The Team at KANGS providing robust legal defence for individuals and businesses being investigated or prosecuted for Regulatory offences by Trading Standards. If you have been accused of selling counterfeit vapes or illegal products, our experienced team is here to safeguard your rights and guide you through every step of the legal process.
Depending upon the prevailing circumstances, we may be required to:
- formulate a reply to any Notice received from Trading Standards.
- provide representation at a Dawn Raid and interviews.
- negotiate with Trading Standards to secure the most favourable outcome and avoid Prosecution proceedings.
- defend formal Prosecution brought by Trading Standards.
Our Team is nationally renowned for providing the highest quality service to clients, both individual and corporate, regardless of location. If we can be of assistance, our Team would be delighted to hear from you.
Please get in touch using the contact details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
Top ranked by leading legal directories Chambers UK and the Legal 500.
