Tobacco Products Directive 2016 Proposals Confirmed by UK

December 29, 2015

Tobacco Products Directive 2016 proposals confirmed by UK

UK government has confirmed that it is going to be enforcing the much feared Tobacco Products Directive. The TPD will have significant implications for the UK market and change vape shops can market, distribute and manufacture e-liquid here in the UK.

The announcement by the UK government cites an outline from the Department of Health that a de minimis approach will be used to implement the TPD. Indeed, the UK government is pressured to accept the TPD reforms and to our surprise, has not challenged it. Failure to implement the Tobacco Products Directive would result in the UK being fined.

There is currently a petition going round on the internet which is calling the UK government to insert a TPD opt-out in its present negotiations with the European Union officials. Every vote counts, so make sure you sign the petition.

For most of us, the TPD is a nebulous and elusive concept. What exactly will it mean for the UK vaping market and the vape shops? We are going to take you through some of the most significant and to a large extent draconian provisions of the TPD and will explain what their impact on vape shops, e-liquid manufacturers and vape market as a whole will be.

It is important to start off by noting that the TPD will require UK to ensure that there will be no “commercial communications” or in other words, plainly speaking, no advertising on the internet, printed publications and national press of electronic cigarettes, e-liquid or other vape-related products. This is a very severe and harsh provision on UK vape shops, e-liquid manufacturers, online vape stores and other vape-related businesses because it will remove the power to advertise vape products. In the same way tobacco is prohibited from being advertised in the media, vape related products such as e-cigarettes, sub-tanks, mechanical mods and e-liquid will be confined to the same destiny as tobacco products. You may wonder, how can a business exist without advertising since advertising and marketing are the fundamental precepts of a business.

To further exacerbate the situation, the TPD will herald an outright ban on “commercial communications on the radio” and any form of “public or private contribution to radio programmes”. This provision means that vaping, electronic cigarettes and e-liquid will be prohibited topics of any radio broadcast, even if carried out for a non-commercial purpose. This provision is certainly a ticking time-bomb until someone challenges it for its flagrant encroachment into our basic human right of freedom of speech. There are many more subjects that warrant censure but yet, are being discussed freely on national radio.

The TPD onslaught does not stop there. According to the provisions of the Tobacco Products Directive 2016, it is going to be illegal and criminally prosecuted if you organise, take part or facilitate vape meets. Here go your freedom of association rights out of the window. Perhaps having a US style constitution would help in this case. Will this pave the way for a UK Bill of Rights?

As with any legal provisions, wording and interpretation are key. It is important to differentiate between “promote” and “promotional”. Does it mean that if a vape company provides information about the product then such communication is “promotional” in nature and therefore not in contravention of the Tobacco Products Directive 2016. Clarification has been sought from the Department of Health, which simply fudged the question and did not provide a clear-cut answer. Such lack of clarity will not help to draw the lines of what is allowed and what is prohibited, which will be most unhelpful to most vape shops and e-liquid companies. We think that with time, further clarification will be provided and precedents will be set.

However, advertising of electronic cigarettes in “media such as billboards and posters in shops” is “outside” the scope of the TPD. The uncertainty around the scope of terms such as “promotion” can mean that vape exhibitions may become illegal in the UK.

Here is a list of draft measures that are due to be implemented with the Tobacco Products Directive in the EU.

  • Broadcast TVwill be regulated (to be implemented by Ofcom)
  • Broadcast TV product placementprohibited ((to be implemented through Communications Act 2003)
  • Radio advertising and sponsorshipprohibited (to be implemented through Communications Act 2003)
  • Newspapers and Magazines not including trade publications - prohibited (Tobacco and related Products Regulations 2016)
  • Internet display advertising, email and text messagesProhibited (Tobacco and related Products Regulations 2016)

Take a close look at the above list and notice that the emerging trend is that electronic cigarettes and vape products are being shoved under the umbrella of tobacco products. The takeaway from this examination of the EU Tobacco Products Directive 2016 is that vaping is going to be severely curtailed in the United Kingdom, and this applies to vapers and vape businesses alike. Whilst we are active in lobbying for changes to be made to this directive, we also feel that it is sensible to study the legislation to find contingency plans and loopholes that we can exploit. Remember, law and especially legal interpretation can indeed be a very malleable concept, which we should play to our advantage. Hope you enjoyed reading this overview and until next time!


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