Understanding vaping’s new rules Don’t let Brexit send your plans up in smoke…

The vaping industry has seen something of a rollercoaster over the past year: once one of the few positive stories in high street retail, the COVID-19 pandemic has resulted in the shuttering of bricks-and-mortar stores – both temporary and permanent – as they first fell foul of their non-essential status during the lockdown, followed by the long tail of retail woe as a result of the dramatic drop in footfall.

At the same time, however, it has benefited hugely from online subscription models as smart businesses adapt to the needs of a naturally loyal audience who want a guaranteed regular supply of their products. Those that developed the most efficient online order and delivery services – and those that had them in place already – have seen a boost in sales. (Indeed, enterprising off-licences have been able to use Deliveroo and Uber Eats to sell vape products to customers.) Meanwhile, several major supermarkets are offering franchise opportunities, even creating social distance-friendly ‘pod shops’, allowing vape retailers to set up small retail stores in their car parks.

All of this has of course been set against endless reviews and potential changes in the law. For instance, the UK Vaping Industry Association (UKVIA) recently called on the UK government to reduce VAT on its products, given their use in helping to curb tobacco smoking. And the uncertainty will only continue as Brexit affects import/export rules.

What does Brexit mean for the industry?

This isn’t a simple question, of course. Brexit’s impact on trade is still to be seen, but it appears the vaping industry will be particularly affected. The government has published a draft Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (UK Exit) Regulation 2020 paper – the parentheses in the title only adding to the sense of uncertainty. In short, it aims to ensure tobacco control legislation will continue to work effectively, requiring EU Member States to introduce advertising restrictions for e-cigarette products, for instance, whilst maintaining product standards for ingredients and emissions as well as rules around packaging.

Crucially, the amendment will allow goods to move freely between Great Britain and Northern Ireland, as long as products conform to tobacco picture warning requirements.

It’s worth noting that more detailed guidance around the notification requirements for products is due to be announced, so this is all subject to change and worth watching closely.

Why the change?

As an EU Member State, the UK has until now been regulated by its implementation of the Tobacco Products Directive (TPD), published by the European Union in 2014. As Britain withdraws from Europe, this will need to be reviewed – meaning that everything from nicotine strength and vape tank sizes to advertising laws will be reconsidered.

The UK government has committed to consider opportunities to ‘alter the legislative provisions for improved health incomes within the UK context’. Given that Jeremy Hunt MP, whilst Secretary of State for Health and Social Care, wrote a leader article for Politics Home promising ‘Britain will always be a world leader in public health’, it seems likely this will mean a tightening of restrictions, further impacting on those looking to export or import products to or from Europe.

It’s clear the opportunities are huge in this market – so keeping one step ahead of the rapidly changing law is vital.

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