The regulation of e-cigarettes

The new European Union Tobacco Products Directive (TPD) entered into force on 19 May 2014. It introduced new regulatory controls on electronic cigarettes (e-cigarettes), as well as setting out requirements on tobacco products. The UK Tobacco and Related Products Regulations 2016 implemented the TPD in full. This Commons Library Briefing Paper outlines the new product requirements for e-cigarettes and identifies where national regulations have gone beyond what is in the TPD.

The use of e-cigarettes

Unlike conventional cigarettes, e-cigarettes do not contain tobacco, do not involve burning and thus do not produce carbon monoxide, tar or smoke. They work by heating a solution of water, flavouring, propylene glycol, and, typically, nicotine to create a vapour that the user inhales. Using an e-cigarette is often described as ‘vaping’ rather than smoking. It was estimated in 2019 that almost 3 million people (5.7%) aged 18 and over in Great Britain were using e-cigarettes, up from 3.7% of over 18s in 2014.  Survey data indicates that consumers are increasingly turning to e-cigarettes as a means to cut back on smoking tobacco, or to quit tobacco completely.

Debates on the benefits and risks of e-cigarettes, particularly regarding their safety and health implications, are ongoing and will continue as more evidence gradually becomes available. A review of the evidence to date, commissioned by Public Health England, reported in 2015 that “best estimates show that e-cigarettes are 95% less harmful to your health than normal cigarettes” and that there was no current evidence to show that they were renormalising smoking, or increasing the uptake of tobacco cigarettes.

Regulation of e-cigarettes

Different approaches to regulating e-cigarettes have been adopted internationally. Prior to the introduction of the Tobacco Products Directive (TPD), the UK initially regulated e-cigarettes as consumer products that were subject to existing product safety regulations. Some countries went further and banned the sale, distribution and importation of e-cigarettes, while others have no regulations in place. An alternative approach, considered by the UK Government, was to regulate all nicotine-containing e-cigarettes as medicines. While the UK Medicines and Healthcare products Regulatory Agency set out plans in 2013 to implement this approach, they were superseded by the introduction of the TPD.

Tobacco Products Directive

The European Union Tobacco Products Directive entered into force on 19 May 2014, with the UK Tobacco and Related Products Regulations 2016 implementing the TPD in full across the UK. According to the European Commission, the TPD’s aim is to “improve the functioning of the internal market for tobacco and related products while ensuring a high level of health protection for European citizens”. Article 20 of the TPD introduces new regulatory controls for nicotine-containing e-cigarettes and refill containers, though it does not cover nicotine-containing products that are authorised as medicines. These controls aim to ensure:

• minimum standards for the safety and quality of all e-cigarettes and refill containers;
• that information is provided to consumers so that they can make informed choices;
• an environment that protects children from starting to use these products.

National regulations

The TPD does not seek to harmonise rules on:

• smoke-free environments;
• domestic advertising;
• domestic sales;
• age restrictions;
• nicotine–free cigarettes;
• flavourings of e-cigarettes.

These elements can all be regulated at a domestic level. England, Northern Ireland, Scotland and Wales have each introduced age restrictions on e-cigarettes that prohibit their sale to, and their purchase on behalf of, under 18s. In 2015/16 the Welsh Government attempted to go further and introduce controls on the use of e-cigarettes in public places, though the Bill was subsequently rejected by the Welsh Assembly. The Scottish Government has made provision, through the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016, to restrict the advertising of vapour products through secondary legislation, though this is not yet in place.

The Tobacco and Related Products Regulations 2016 were subsequently amended by the Tobacco Products and Nicotine Inhaling Products (Amendment Etc.) (EU Exit) Regulations 2019 and 2020 to enable tobacco and e-cigarette regulation to continue to function following the UK’s withdrawal from the EU.

The Department of Health and Social Care has a statutory duty to review the regulatory impact of the Tobacco and Related Products Regulations 2016 by May 2021 and publish a report setting out the conclusions of the review. At the time of writing the results of the review had not been published.

Select Committee Inquiry

On 25 October 2017, the House of Commons Science and Technology Select Committee launched an Inquiry to look at the science behind e-cigarettes and the impact on health, the regulation of the products and financial implications. The Committee received over 100 pieces of written evidence and heard from 25 witnesses over the course of five oral evidence sessions held between January and May 2018. It published its report in August 2018. All seven of the recommendations made in the report – which covered matters such as addressing gaps in the evidence base on the health risks of e-cigarettes, and ensuring that NHS mental health trusts have clear, evidence-based policies on the use of e-cigarettes by patients – were subsequently accepted by the Government.