So it’s finally happened. On the 1st of January, 2021, the United Kingdom left the European Union. While there has been a lot of talk about tariffs, trade agreements, and fishing deals, some of us have been left pondering more significant questions, like “How will Brexit affect vaping regulations?”
Currently, the UK’s vaping rules come are governed by the Tobacco Products Directive (TPD). These are a set of rules agreed by the European Union member states that deal with tobacco control, including vaping products and e liquid.
But if Brexit means Brexit™, does that mean there will be a new set of tobacco laws governing the vaping industry drawn up in the House of Commons?
The European Tobacco Products Directive — also known as the TPD — is a guidance by the European Union that relates to the sale and merchandising of tobacco and related products within the EU. This is relevant for vapers because “tobacco-related products” covers e liquid, electronic cigarettes, nicotine strength and other vape products.
As part of the EU’s broader commitment to health and social care, the first TPD was a set of public health regulations designed to cover the smoking industry in 2001 — particularly aspects like cigarette yields, tobacco product labelling and advertising restrictions. However, by 2014, the rise of vaping led the EU health commission to devise a new set of regulatory rules and practices around not just e cigarettes and e liquid but other aspects of the vaping industry like packaging and public health warnings.
These new rules — update to include article 20 that dealt with e cigarettes and the vaping industry— came into effect in 2017, with the allowance of a transitional period of six months.
While the EU and Brussels do have a reputation among some for excessive bureaucracy, it should be noted that these regulatory changes were put in place in the interests of public health. The main aims of the tobacco control plan were:
For many, the implementation of these rules led to a restriction of choice and a level of inconvenience, but broadly the rules were received without too much fuss. Overall, TPD regulations have made for a more controlled and safer environment for vapers, with stricter checks on the quality of electronic cigarettes and e liquids.
While the industry wasn’t exactly the Wild West before these regulations, those who want to stop smoking do so in the interests of harm reduction, and the TPD provides an environment for safer products and better education when doing so.
Now that these regulations have been in place for several years, most vapers will be reasonably familiar with the effects on vape products and liquids. Here is a brief rundown on the main points that effected vapers.
The EU regulations dictate that the maximum bottle size for a product containing nicotine is 10ml. For recent vapers, this will seem entirely normal. But vapers who started years ago will remember the days of purchasing e liquids in 50 or even 100ml quantities. Especially memorable are the times where you didn’t particularly like the flavour and were stuck with a large bottle of juice you weren’t inclined to use.
However, the vaping industry is known for being innovative, and it soon found a workaround in the form of shortfill e-liquids. For this, vapers can buy a nicotine shot of 10ml and a 60ml bottle that contains 50ml of juice. From there, the bottle can be filled with the nicotine shot resulting in a 50ml bottle of e liquid.
One notable criticism of this policy is that reducing the bottle size limit to 10ml causes a tremendous amount of excess plastics and packaging, which has a negative environmental effect.
Nicotine strength was another aspect covered by TPD. This limited the concentration of nicotine in e-liquids to be capped at no more than 20mg or 2%. While these limits didn’t affect most vapers, the eventual arrival of nicotine salt e-liquids was somewhat hampered by these levels because nic salts allow users to vape much higher concentrations like 45mg’s comfortably.
However, between nicotine shots and the improvement in vaping devices — including the emergence of an excellent generation of pod devices — the vaping community have been able to enjoy these nic salts regardless.
Perhaps the least popular aspect of this regulatory framework was the restrictions on tank sizes. To this day, many vapers still bemoan the rule that tanks and replacement pods can contain no more than 2ml of liquid. With former tank capacities at around 5ml, re-filling was far less frequent.
The upside of reduced tank sizes was that devices shifted toward being lighter and more mobile. Before 2017, the trend had been for mods that were unwieldy as deep tanks and extra battery life were seen as coveted advancements. The EU restrictions may have had an influence in slimming devices down and making them more discrete and portable, which for me, is a big plus.
One of the other features of this regulatory change was the directive to display public health information on boxes and packaging. These warnings will have been familiar to smokers, with a large bold Helvetica typeface warning users that nicotine is an addictive substance.
While this would not be news to most of us, this is part of the larger EU labelling stance that stops companies from preying on people by giving them the information to make more informed choices.
While the directive instructing 9mm bottle nozzles didn’t really move the dial among most vapers, the demand for child-proof and tamper-resistant caps was welcome. A big part of these rules was designed to reduce the possibility of children ingesting nicotine juice from bottles or tanks they might find around the house. Additionally, the tamper-resistant caps are helpful to ensure that the product you are buying meets regulatory standards and hasn’t been switched out or diluted for an unsafe or inferior product.
Some other regulations were also added that dealt with the manufacturing of e-cigarettes and liquids.
Tighter controls were placed on the ingredients of e-liquids. These included:
As covered above, tank size and pod capacity were restricted to 2ml, with an obligation to provide clear warning labels on the packaging.
Additionally, all vape tanks must have an ECID (European Community Identification Number) and — similar to the e liquid manufacturing restrictions above — must be registered to the MHRA.
Because leaving the European Union means the UK won’t be subject to EU law, what does the picture for vaping look like post Brexit?
So far, there hasn’t been much concrete from Westminster on the issue. A 2018 report by The Department of Health and Social Care did promise to re-appraise the case of vape regulations when we leave the European Union and noted some details of the UK government’s Tobacco Control Plan.
The most common belief is that the government will not seek to reform the TPD regulations after Brexit. In many ways, this is great. We know what that looks like, and it’s very workable. But, there is something more troubling on the horizon, and that is the spectre of TPD3.
With the UK likely to keep TPD, might we adopt further iterations of the EU’s tobacco control? Unfortunately, It’s not quite as simple as just picking and choosing which EU rules we find agreeable within the House of Commons.
For British companies to trade with other EU member states, there will need to be some alignment with EU regulations. In short, if British companies want to sell vaping products or e cigarette products outside of Britain, adherence to these rules will be necessary, which means a reliance on the EU nicotine and tobacco regulations.
While health and social care and harm reduction will most likely find common ground in both the UK and the EU approach to these issues, there are some concerns about TPD3 that are worth considering.
While we know what the current TPD regulations mean for vapers, we don’t exactly know what the EU member states may cook up in the future. One active concern is that vape products could come under further regulatory scrutiny from the EU commission.
Making predictions for what new nicotine restrictions will be favoured by Brussels is a challenging task, but there are a few clues that could give us an idea of what future tobacco control policies might look like for UK citizens.
It seems the Trade and Cooperation agreement will require specific EU standards to be adhered to, which is an indication that Britain will be tied to TPD rules for the foreseeable future. Further evidence for this can be found in Westminster favouring a deep regulatory and customs alignment.
The economist and Greek Minister for Finance, Yanis Varoufakis, underlined a point during his frequent tours around the UK before the Brexit vote. He likened Britain’s situation as an EU member state to the lyrics of the Eagle’s smash hit “Hotel California”. Namely, the line “You can check out any time you like / But you can never leave.”
Because of the UK’s geographical location, the idea of “leaving” Europe was always somewhat symbolic. Talk of striking up trade agreements with Canada, India and the US frequently failed to acknowledge that, from a logistical standpoint at least, Europe is one of the UK’s best-trading partners. And this works both ways.
To allow a share of this pie, the EU will want a “level-playing field” — and that means goods alignment. Now, with TPD3 in the pipeline, there is a growing recognition that post-Brexit Britain will end up conforming to some, if not all, of these new tobacco directives.
The European Tobacco Harm Reduction Advocates (ETHRA) organisation has offered a few insights into the measures included in future regulations.
For now, however, it seems that the TPD3 will be delayed because of COVID-19. The European Commission is still working towards the May 2021 deadline, but many of the contributing organisations have suffered delays. For now, the vaping industry will have to wait and see what new restrictions may or may not be proposed.
Much of the rumoured changes are centred on nicotine products rather than e cigarettes devices themselves. The talk circulating around the vaping industry suggests that further monitoring of e liquids would be part of the TPD3 directives. However, future regulatory change could target advertising and packaging and could include flavour bans and further restrictions on packaging and advertising.
The Department of Health and Public Health England have both been very sensible when it comes to electronic cigarettes. They understand the harm reduction potential for people who quit smoking and switch to vaping. The government has been quietly supportive of the industry, with many in the NHS understanding that it’s hard to stop smoking and any assistance is welcome. For heavy smokers, especially, vaping has proved an effective measure.
Electronic cigarettes are approved for use by the Department of Health and Public Health England because they are less harmful than cigarettes. These positions are not likely to change post-Brexit. It is likely that there will be continued support for the vape industry on a governmental level because as long as vaping continues to be less harmful than cigarettes, support for the industry is in the interests of public health.
For now, the rules that we have all grown to love (or at least tolerate) seem like they are here to stay. This means increased tank size won’t become the cornerstone of any populist candidate chasing the vaping block of voters. Brexit means we’ll mainly stay in line with EU products regulations, which will mean that trading standards must be adhered to.
However, for vapers and manufacturers alike, further regulations in the form of TPD3 could change this picture and leave the government with some decisions. We’ll all have a clear picture of what they look like by the end of 2021, but for now, it’s business as usual.