The perceived safety of e-cigarettes – nicotine administration devices which do not involve combustion – has led to their increased use and, unsurprisingly, regulatory scrutiny.
At the EU level, the revised Tobacco Products Directive 2014/40/EU (“TPD”) introduces new rules to restrict the supply, manufacture and promotion of e-cigarettes. Member States had to transpose the TPD into national legislation by 20 May 2016. The UK has implemented the TPD through the Tobacco and Related Products Regulations (“TPPR”).
The TPD aims to provide consumers with information to enable them to make informed choices and seeks to create an environment that protects children from the use of these products.
The TPD will affect businesses which produce and manufacture e-cigarettes, along with their retailers. Such businesses must:
- fulfil new size limits for e-liquids and their refill containers as well as use child-proof packaging;
- include a health warning on the unit packet and any outside packaging;
- provide information on addictiveness and toxicity on the packaging and accompanying information leaflet, ensuring such information is not misleading or promotional;
- register with the competent authority of an applicable Member State (in the UK, the MHRA) if engaged in cross-border distance sales of electronic cigarette products in such Member State;
- not advertise or promote, directly or indirectly, e-cigarettes and refill containers on certain media platforms, including television, radio, newspapers and magazines; and
- inform Member States before placing new or modified products on the market and notify the competent authority of a range of product information concerning composition, emissions and sales marketing data. Other changes which will apply to all tobacco products include requirements that graphic warnings cover over 65 percent of package surface area, package standardisation (including a ban on 10-packs), and banning certain flavours like menthol, vanilla and candy (for products with a market share greater than 3 percent, such as menthol, this ban will take effect in 2020).
Advertising agencies across the EU will also need to update their guidance. We note that Ofcom in the UK has already amended the Broadcasting Code in line with the TPPR to reflect advertising restrictions, while the Committee of Advertising Practice is expected to release updated guidance shortly.
All products sold to consumers must comply with the TPD from 20 May 2017, subject to certain transitional measures. Retailers have a year to sell stocks of products which do not comply with the labelling and composition requirements of the TPD.