As the Government announces proposals to ban disposable vapes and introduce new vaping regulations, concerns around the illicit vaping market are on the rise. A significant number of illicit vapes are already being sold illegally throughout the UK and a ban on popular flavours or vaping devices may result in consumers looking to unregulated devices.
These unregulated vapes not only pose safety risks, they are also related to the sale of vaping products to minors. It is essential that more attention is given to the cracking down on counterfeit vapes.
What are illicit vapes and why do they matter?
Illicit vapes are devices and e-liquids that have been manufactured without adhering to the important health and safety regulations that have been set out to protect consumers. Vapes sold in the UK should strictly follow the requirements set out in the Tobacco Products Directive (TPD), an EU directive which was then transposed into UK law by the Tobacco and Related Products Regulations 2016 (TRPR). All nicotine containing products must also be approved through the Medicines and Healthcare products Regulatory Agency (MHRA) and appear on their ‘notified products list’.
The directives set out rules governing the manufacture, presentation and sale of tobacco and related products. Illicit vapes are those that bypass these directives, which means they are not subject to the same scrutiny and regulation, and have likely not been subject to the correct health and safety checks.
Illicit vapes are already a big problem
Illicit vapes are currently a big problem. The Government reports that 2 million illicit vapes were seized across England by Trading Standards from 2022 to 2023, this represents a significant number out there available to buy from unscrupulous sellers. There has also been evidence (collated by the House of Commons) that underage vapers have been found with illicit vapes.
The UK Government has set out its regulations for consumer e-cigarette products from the Medicines and Healthcare products Regulatory Agency (MHRA). This makes the Government, and other regularity bodies, responsible for implementing a number of provisions set out in the TRPR directives, including minimum standards for the safety and quality of all e-cigarettes and e-liquids.
What are the risks associated with unregulated vapes?
These safety regulations are so important because without them, it is possible for products to be created that bypass important considerations. When unregulated devices make their way to market, there is no way of knowing whether they’ve been built to the appropriate safety standards. This could result in anything from malfunctioning batteries to shoddy builds. There’s also a very real danger that un-regulated e-liquids may contain toxic substances or components that are not deemed as safe for consumption in the UK.
Trading Standards Officers told the BBC that illegal vapes have no safety controls on the amount of nicotine, heavy metals, and any other dangerous chemicals they contain. While Derby City Council revealed that an illicit market vape that was seized by the Trading Standards team and tested in an independent lab, contained components such as arsenic, lead and formaldehyde.
How the illicit vape market affects underage buyers
It’s also worth considering the fact that retailers who are willing to sell illicit vapes are likely to also have no qualms about selling to underage buyers. These retailers have proven that they are willing to flout regulations and that they are not prepared to consider the safety risks of counterfeit products – which makes it likely that they will also not consider the impact of selling to minors. By failing to crack down on the shops that sell illegal vapes, there is a missed opportunity to also cut down on the number of vapes available to children. Especially as a flavour ban may drive vapers to seek out illicit options.
To date, only two retailers have been prosecuted for selling illegal vapes. We argue that this does not provide sufficient deterrent and suggests that more robust measures are needed. We are strongly behind the proposition to enforce consequences on retailers who don’t follow important health and safety regulations. In our proposals to prevent youth vaping, we advocate for substantial fines, such as £10,000 on-the-spot penalties for retailers caught selling to under 18s, as a way to significantly deter illegal sales.
We also propose the introduction of a vaping licensing scheme, which would limit the sale of vaping products to specialist retailers, supermarkets, and other responsible retailers. This could substantially limit the availability of illicit products and also the sale of any vaping products to minors.
How vaping bans may cause an illicit market boom
There is a growing concern that bans on certain types of vapes or vape flavours may result in an illegal market boom, as consumers hunt for ways to continue to enjoy products they like. As reported in the Guardian, Scott Butler, executive director at environmental charity Material Focus, said that a ban might result in:
“hard to control illegal sales and an established illegal vape market. If the legitimate industry is banned, then there will be no mechanism to deal with all the operational challenges and costs of illegally sold vapes which have the same challenges.”
We share these concerns and have seen precedent in other countries like Australia, where a ban has led to a rise in illicit sales. In May 2023, Australia became the first country to announce a ban on the sale of recreational vapes. The UK Industry Vaping Association (UKIVA) reports that this move has driven up to 92% of vapers to buy their products through illegal channels. What’s more, as many as 100 million illicit products are smuggled into the country per year.
The Australian Government issued new reforms in January 2024 to tackle the influx of illegal vapes, including banning importation of all disposable vapes and a ban on the importation of all vapes without an import license and permit from the Office of Drug Control (from March 2024).
What is the Government currently doing about illicit vapes?
11 April 2023 – The Government issue their eight week ‘Youth vaping: call for evidence’ with the aim of identifying ways to reduce the appeal and availability of vaping products to minors.
12 October 2023 – The Government opened its consultation ‘Creating a smokefree generation and tackling youth vaping’. Responses from the general public were invited.
7 November 2023 - The King’s Speech introduces the intention for a 'Tobacco and Vapes Bill' which would give the Government new powers to regulate vaping products.
6 December 2023 – The Government’s consultation is closed. The responses are collated and an outcome prepared.
28 January 2024 – Prime minister Rishi Sunak announced government plans to introduce a variety of measures to tackle youth vaping, including proposals to ban disposable vapes and flavours. New regulations around illegal vapes will also be considered.
29 January 2024 – The full consultation outcome is published, outlining how the Government plans to move forward, and including additional funds for enforcement authorities to tackle youth vaping and combat illicit vapes .
14 February 2024 - A petition titled ‘Don’t ban flavoured e-liquids for e-cigarettes’ was launched. If it reaches 10,000, the government will be required to respond.
21 February 2024 – The UK Vaping Industry Association (UKIVA) launch a Retailer and Distributor licensing framework that – if adopted - would generate £50 million each year to combat illicit vape sales.
In the ‘Creating a smokefree generation and tackling youth vaping consultation: government response’ they recognise concerns that the suggested approaches may lead to increases in the sale of illicit tobacco and vaping product sales. They have committed to increasing their investment in enforcement agencies like Border Force and Trading Standards by £30 million per year, to help them enforce all current and future regulations on the sale of tobacco and vaping products.
While current regulations mean that retailers caught selling to minors can be hit with fines of up to £2,500, this is not an on the spot fine and local Trading Standards must issue warnings and endure court proceedings before a substantial fine can be issued.
The Government reported many respondents to the open consultation called for larger fines and penalties for illegal imports, sales, and trade of vaping products including the introduction of fixed penalty notices (FPN). They now plan to introduce a £100 FPN for the underage sale or proxy purchase of tobacco and vaping products, which will be payable on the spot. This will enable Trading Standards officers to take faster action and will work as a stronger deterrent to those irresponsible retailers who are not taking age verification processes as seriously as needed. This will be in addition to the existing legislation, meaning that these penalties can be escalated if further illegal sales are made, starting with warnings and ending with a maximum fine of £2,500. In the case of serious offenders they may be able to apply for a court order to close down the business for a time.
How a vape licensing scheme could help enforce current laws
As part of our response to the Government’s call for evidence and open consultation, we advocated for the introduction of a vape licensing or registration scheme similar to the alcohol licensing scheme. This would ensure that only businesses holding a valid licence would be allowed to sell vaping products, making it easier for enforcement authorities to identify illegal activity and to better regulate the industry.
A member of UKVIA have recently published their framework for a retail and distributor licensing scheme for vaping products, detailing what such a scheme would and should look like. The framework lays out everything from the application process, to fees and requirements, to enforcement, and demonstrates how this would not only make regulation and enforcement within the industry easier, but also that it could raise an estimated £50 million in funds which can be used to further bolster enforcement agencies like trading standards.
To become a licensed seller would require businesses to agree to uphold all age verification requirements, along with agreeing to be subject to regular checks and test purchases, adhere to advertising standards, and provide the appropriate recycling facilities and information to customers. Failure to comply with these requirements could result in significant fines and even having their license revoked.
How to avoid illicit vaping products
Illicit market vapes can be very convincing, making it difficult for the average consumer to spot a counterfeit. That said, there are a few things you can watch out for, including:
·Misspellings or typos on the products or packaging, Mistakes are often a clear sign that a vape isn’t legitimate.
·Plain and unbranded packaging. Most vape real products come in boxes that include branding and logos.
·Likewise, you should expect to see a leaflet with instructions and an authenticity card inside the box.
·All nicotine-containing vaping products must have a nicotine warning clearly printed on the front of the product, if this is missing it is a sign the product is not compliant
·If the product is advertised as having a nicotine strength higher than 20 mg/ml. This is the highest nicotine strength allowed under UK law, anything above this is illegal and should not be used
·If a vape kit is advertised as having a tank larger than 2ml. All refillable vape kits in the UK are limited to a 2ml maximum capacity
·If a bottle of e-liquid is larger than 10ml but still contains nicotine. All e-liquids sold in a bottle larger than 10ml of e-liquid are required to be nicotine-free by law, and so if a vape juice is in a larger bottle but still contains nicotine it is likely to be unregulated
·Vapes often also come with a warranty or manufacturers guarantee and if one isn’t included, you may have a fake.
·Illicit vapes are often made with substandard materials, so look out for ill-fitting parts or warping.
One of the most crucial steps to avoiding illicit vapes is to only buy your products from trusted sellers.