The Department for Health has published proposed regulations to restrict the sale of e-cigarettes to under 18s in England and Wales. The government has felt the need to act on the sale of such products in light of their increasing popularity across the population, including within the demographic of those aged between 11 and 18.

The proposed Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations are being put forward to Parliament under the Secretary of State's power to introduce new regulations under the Children and Families Act 2014. As the title of the regulations suggests, the area of concern to Government is the sale of nicotine inhaling devices to under 18s as well as the potential for proxy purchases to be made by adults on behalf of under 18s.

The Proposals

Broadly speaking, the regulations seek to extend the restrictions applicable to the sale of tobacco to the sale of e-cigarettes and other nicotine inhaling devices. This will mean the minimum age a person can buy an e-cigarette or one of its component parts will be 18. Component parts in this instance will mean replacement cartridges or refills containing nicotine, but not items such as batteries or chargers.

In addition, the proposals seek to extend the restriction on proxy purchases to e-cigarettes. This will make it an offence for anyone over the age of 18 to buy an e-cigarette or component part on behalf of someone under the age restriction.

The Offences

The proposals seek to introduce a criminal offence against persons who do not comply with the proposed age restrictions. The proposed offences are:

  • For the sale of nicotine inhaling products to someone under the age of 18 – a fine not exceeding level 4 on the standard scale (currently £2,500 but may increase to £10,000 under proposals being considered by the Government)
  • For repeat offenders found to be selling nicotine inhaling products to persons under 18 – a Restricted Sales Order or a Restricted Premises Order preventing the named individual or retail outlet from selling nicotine inhaling products or tobacco to anyone for up to a year.
  • For proxy purchasing – a fixed penalty notice fine of £90 (reduced to £60 if paid within 15 days)

Enforcement

Trading Standards will be the body responsible for enforcement of the new regulations, which will also fall into the scope of the Primary Authority Scheme. Finally, the age restrictions and proxy purchases offences will be added to the list of offences found in the Regulation of Investigatory Powers Act 2000 (RIPA).

The Exemptions

Certain exemptions are proposed to be incorporated into the new regulations. These are predominantly linked to the licensing of specific nicotine products as medicines. Products which will be exempt from proposed regulations will be:

  • Any nicotine inhaling product with is licensed as a medicine by the Medicines and Healthcare Products Regulatory Agency (MHRA)
  • Any product sold in accordance with a valid prescription by a pharmacist
  • Any product sold as a non-prescription medicine but authorised and sold as a specifically indicated treatment for under 18s

Other products which will be exempt from the regulations include nicotine replacement products such as chewing gums and patches.

The Department of Health are seeking responses from individuals, retailers, and other organisations by 23:45 on 28 January 2015. Parties responding who hold an interest in the tobacco industry are asked to make this clear when responding.

The consultation document can be accessed here

The topic of e-cigarettes continues to provoke debate and split opinion within the UK. What remains to be seen is whether the current proposals will form the last piece of government regulation of the products in question, or whether further regulation of e-cigarettes and associated products will be considered going forward.