E-cigarettes continue to make the headlines with stories of exploding devices to debate regarding their risks and regulation. In this article we summarise the recent domestic and European developments regarding the regulation of e-cigarettes and issues that will impact upon businesses in the hospitality and leisure sector.

What are e-cigarettes?

E-cigarettes are electronic devices that heat a liquid solution (e-liquid) containing nicotine to create a vapour that is inhaled by the user (commonly referred to as “vapers”).

Concerns

The recent growth in the sales of e-cigarettes has sparked debate across the world regarding the potential risks they pose and how, if at all, they should be regulated. Supporters argue that e-cigarettes should be actively promoted as a healthy alternative to smoking. Others, however, argue that the use of e-cigarettes glamorises smoking and may act as a gateway to smoking traditional tobacco products. There are also concerns regarding the safety of the devices as there is currently insufficient evidence regarding their long term effects on health.

EU position

The revised Tobacco Products Directive (the Directive) allows Member States to regulate e-cigarettes as either medicines or under the requirements set out in the Directive.

From 2016, the Directive introduces new rules across the EU regarding the safety, quality and packaging of non-medicinal e-cigarettes and e-liquids. The Directive, for example, sets a maximum nicotine concentration level and maximum volumes for containers of e-liquids, and places manufacturers notification and reporting obligations. A number of issues will be left to the Member States including the regulation of flavours and age limits.

UK position

E-cigarettes are becoming increasingly more popular in the UK. Latest figures suggest that around 1.3 million Britons now use the devices.

E-cigarettes are currently regulated under general consumer protection laws unless medicinal claims are made regarding the product in which case they will be regulated as a medicine. However, the Medical Health and Regulatory Authority (the MHRA) has announced that it will regulate all nicotine containing products, such as e-cigarettes, as medicines from when the Directive comes into force in 2016. Manufacturers of e-cigarettes will be required to obtain a licence from the MHRA for their products or they will be banned. The move followed concerns regarding the quality and safety of the products currently on the UK market. The MHRA found, for example, that nicotine levels can considerably vary from the level stated on the label and from one batch to another. UK Trading Standards have also raised concerns regarding the safety the electrical components of the devices, such as battery chargers, with the relevant safety standards.

The future - will vaping be treated like smoking?

The Directive will bring e-cigarettes more in line with tobacco products across the EU, but this is by no means the end of the debate. There are likely to be further changes in the future, particularly as more evidence becomes available regarding the health effects of using e-cigarettes.

One issue that is currently being debated is whether or not the current ban on smoking should be extended to vaping. The Welsh Government has, for example, launched a consultation on proposals to address a number of public health issues in Wales which includes a proposal to extend the current ban on smoking to vaping. The deadline for responses to the consultation is 24 June 2014.

The Licensing Board at Scottish Borders Council was also asked to consider a request from the Royal Environmental Health Institute of Scotland to ban the use of e-cigarettes in licensed premises. The Board declined to make a decision on the basis that they did not have enough information as to why a ban should be introduced.

What should businesses do?

There are currently no restrictions on the use of e-cigarettes and businesses are free to decide upon their own policy.

A number of bars, cafes and stadiums have voluntarily imposed a ban on vaping due to concerns that unrestricted use of e-cigarettes may make it more difficult to enforce the current ban on smoking. However, businesses may consider other factors when developing a policy such as:

  • Brand protection – do you want to portray a ‘clean’ and ‘healthy’ image?
  • Feedback from customers – for example, are customers comfortable with people vaping in a restaurant whilst they are eating?
  • Does allowing vaping in smokefree areas encourage people to smoke in these areas?

If vaping is prohibited like smoking, thought also needs to be given to where people can go to use e-cigarettes. Vapers, particularly those who use e-cigarettes as a way of giving up smoking, are likely to complain about being exposed to second hand smoke. A way around this is to provide designated “smoke-free”, smoking and vaping areas but this may not always be possible in practice.