Use and sale of illegal vapes

Bukky Balogun; Joe Tyler-Todd; Lorraine Conway

A Westminster Hall debate on the use and sale of illegal vapes is scheduled for Tuesday 16 December 2024. The debate will be led by Peter Gibson MP (Conservative).

Vaping products are e-cigarettes and e-liquids. 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 described as “vaping” rather than smoking. E-cigarettes are usually used to help people quit smoking tobacco, they can be reusable or disposable.

How are vaping products regulated?

For the purposes of regulation, a distinction is made between nicotine and non-nicotine containing vapes and e-liquids.

The Tobacco and Related Products Regulations 2016 (TRPRs), as amended, impose product standards for nicotine vapes and extend across the UK. These standards, set out in regulations 36 and 37 of the TRPRs include:

20 mg/ml: maximum nicotine strength of e-liquids.
No more than 2ml: maximum tank capacity of an e-cigarette.
10ml: maximum volume of nicotine containing e-liquid for sale in one refill container.
Labelling requirements and health warnings for specific risk groups.

Under part 6 of the TRPRs, the Medicines and Healthcare Produces Regulatory Agency (MHRA) is the competent authority for the notification scheme for vapes in the UK. Manufacturers of vapes must submit information such as nicotine content and dosage to the MHRA for approval and sale on the UK market.

In addition to the TRPRs, rules on the advertising, marketing and promotion of vaping products are set out in the Advertising Codes, both the Non-broadcast CAP Code and the Broadcast BCAP Code. The Advertising Standards Authority (ASA), an independent regulator, has responsibility for ensuring adverts across UK media comply with the Codes. The Library’s briefing Advertising, marketing and promotion of vaping products, published 3 January 2024, provides further information.

The TRPRs do not apply to non-nicotine containing vapes. These are covered by the General Products Safety Regulations 2005 (GPSRs). As with all other consumer products, suppliers of non-nicotine vapes and e-liquids must ensure that only safe products are placed on the market, together with any necessary warnings for the safe use of the product.

What are illegal or non-compliant vapes?

Illegal, or non-compliant, vapes are vaping products that do not fulfil the criteria set out in the TRPRS, and/or are deemed unsafe under the GPSRs. For example, vapes that exceed the maximum tank capacity, vapes that do not fulfil the labelling requirements, vapes that contain illegal ingredients, or those that have not been registered with the MHRA.

The majority of the TRPRs are enforced by local authority Trading Standards officers, or Environmental Health officers in Northern Ireland. These officers have the power to seize illegal products.

How many non-compliant vapes are present on the market?

On 8 November 2023, the Government said that “over 2 million illicit vapes” had been seized across England by Trading Standards from 2022 to 2023.The BBC’s coverage of Operation Joseph, a National Trading Standards initiative to tackle the supply and sale of non-compliant vapes, said that “more than 500,000 illegal vapes” had been seized across England from March to September 2023. According to The Guardian’s analysis of freedom of information requests to 125 local authorities, “more than two and a half million illicit e-cigarettes were collected since the beginning of 2020”.

Vaping by children and young people

There have been reported incidents of children obtaining illegal vapes that contain harmful or banned products.

Under regulation 3 of the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015), selling a nicotine inhaling product to anyone aged under 18 is a criminal offence. This includes devices, cartridges, and refill vaping liquids containing nicotine. The proxy sale of a nicotine inhaling product (purchasing it for anyone under 18) is also a criminal offence. Trading Standards carry out spot checks on shops and test purchasing. The offence of selling nicotine vapes to children carries a fine of £2,500.

A survey by the charity Action on Smoking and Health (ASH) on the use of e-cigarettes among young people in Great Britain, found that in March/April 2023, the proportion of children experimenting with vaping had grown by 50% year on year, from one in 13 to one in nine.

The Government’s call for evidence on youth vaping received 441 submissions. Of the respondents who commented on where they thought children could get vapes: 32% said it was corner shops and convenience stores; 27% said friends or family; and 10% said online sources.

Further information about youth vaping can be found in the Library’s briefing Youth vaping in England, published 12 January 2024.

What concerns have been raised by stakeholders about illegal vapes or vaping?

Health concerns

The Chartered Trading Standards Institute (CTSI), in its March 2023 statement on non-compliant vapes (PDF), said that “while there is no definitive health risk to using non-compliant vapes, the MHRA strongly advises consumers not to use them as them as the true content is unknown, along with any possible health risks.”

There are also broader concerns around the long-term health effects of the use of vaping products by children. This is discussed further in the Library’s briefing on Vaping and health, published 12 January 2024.

Child sexual or criminal exploitation

Some stakeholders have suggested that there is evidence of a link between underage vaping and child criminal or sexual exploitation. Crimestoppers use the umbrella term ‘vaping-related exploitation’ to refer to instances in which vapes are used to “attract, groom and exploit children”.

The definition of child sexual exploitation is provided in Working Together to Safeguard Children 2023 (PDF), statutory guidance produced by the Government in December 2023:

Child sexual exploitation is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact; it can also occur through the use of technology.

In August 2022, Deputy Chief Constable Ian Critchley, the National Police Chiefs’ Council lead for Child Protection, said: “We have seen instances where children have been given vaping products by offenders, with the intention of grooming them for child sexual exploitation.” Similar concerns were also raised by Greater Manchester Police in August 2023.

The Welsh Government announced funding for Trading Standards Wales “to help tackle legal illegal vaping in Wales” on 15 December 2023. In explaining the need for this funding, Lynne Neagle, Deputy Minister for Mental Health and Wellbeing, said that “Illegal vaping products are also known to have links to criminality and child sexual exploitation”.

Child criminal exploitation

Links have also been suggested between illegal vaping and child criminal exploitation. The Government’s definition of child criminal exploitation is set out in its Serious Violence Strategy (PDF), published April 2018:

Child Criminal Exploitation occurs where an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child or young person under the age of 18 into any criminal activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial or other advantage of the perpetrator or facilitator and/or (c) through violence or the threat of violence.

In March 2023, the St Giles Trust, a UK charity that offers advice, advocacy and support to those facing severe social disadvantage, said that the charity had received the following reports of vapes being used in the context of child criminal exploitation:

Teams working at the frontline with children and young people involved in or at risk of child criminal exploitation – typically by county line gangs – have reported that vapes, which can have long-term impacts on cardiovascular health, are now increasingly promised alongside more traditional methods such as cash, trainers and food.

“Some respondents” to the Government’s call for evidence on youth vaping said that “children are selling vapes and that there is a link to organised crime and illicit products”.

Government action

Stopping the supply of illegal vapes

On 11 April 2023, the Health Minister Neil O’Brien announced a new “illicit vapes enforcement squad” led by Trading Standards to enforce the rules on vaping and to tackle illicit vapes and underage sales. The expectation is that this new squad, supported by £3 million of government funding, will also tackle online shops selling illicit vapes to under 18s.

The Government has also committed to providing £30 million additional funding each year (from April 2024) to support enforcement agencies such as Trading Standards, Border Force and HMRC. This additional funding is to be used to implement and enforce the law (including underage sales) and tackle illicit trade.

Illegal vaping

On 4 October 2023, the Government published a policy paper, Stopping the start: our new plan to create a smokefree generation. This was followed by the publication of a consultation paper on 20 October 2023, Creating a smokefree generation and tackling youth vaping: your views. To tackle youth vaping, the Government sought views on various proposals, including restricting vape flavours, regulating vape packaging and product presentation, regulating point of sale displays, and restricting the sale of disposable vapes. The Government is currently considering responses to the consultation.

In the King’s Speech on 7 November 2023, the Government announced its intention to introduce a tobacco and vapes bill. According to the background briefing notes (PDF), this Bill will contain measures that would “reduce the appeal and availability of vapes to children”; another of its aims is to “strengthen enforcement activity” in relation to illicit vapes and underage sales.