Up in a puff of smoke – New legislation seeks to stop teen vaping

Vaping by teens has become widespread in the last ten years as the use of e-cigarettes has rocketed in popularity. Concerns about the impact of these devices on public health have now led to new legislation placing restrictions on the sale and promotion of these nicotine inhaling products.

The need for the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (the "Act") was widely publicised in the media throughout 2023, due to the number of children under 18 purchasing and using e-cigarettes in the absence of specific legislation prohibiting their sale. 

While not all of its provisions are commenced, specifically in relation to e-cigarettes the Act provides:

• Defines an e-cigarette (adopting an EU level definition)

• Governs the remote sale of these products

• Provides a new licencing system for sale

• Creates new offences in relation to vending machines, sale to or by children and advertising

An “e-cigarette”, as set out in Article 2 of EU Directive 2014/40/EU is a product that can be used for consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank. Electronic cigarettes can be disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges.

The Act also updates the regulatory regime for retail sales of tobacco by amending the Public Health (Tobacco) Act 2002 and the regulation of tobacco products generally. While not yet operative, the Act will provide a licensing system which will replace the current registration system for tobacco retailers. 

It is an offence under Section 28 of the Act to sell, or cause to be sold, by retail, a tobacco product or a nicotine-inhaling product to a person under 18. Section 29 of the Act prohibits the sale of tobacco products or e-cigarettes at events “aimed particularly at children” or at an event where the majority of the participants or audience are children. Sections 30 and 31 further prohibit the advertising of e-cigarettes in cinemas and certain places including within 200 metres of school grounds, on public transport vehicles and at public transport stops. It shall not be an offence for a person to advertise a nicotine inhaling product immediately before, or during an interval to, the screening of an “over-18s” film. Sections 29 to 31 will come into effect on 23 September 2024, whereas Section 28 has already been commenced.

In the future, it will also be an offence to sell a tobacco or nicotine inhaling product without a licence, to sell a nicotine inhaling product by means of self-service (i.e. by way of vending machine) and to permit a child to sell a tobacco or nicotine inhaling product, unless that child is over 16 and is a specified relative of the licence holder. 

The Act also provides for: 

• Test purchasing at premises to determine if retailers will sell tobacco products or e-cigarettes to a child under 18.  This section of the Act came into force on 29 March 2024, and is similar to the legal regime currently in place in respect of tobacco products.

• Fines and/or imprisonment for those convicted of offences under the Act. Where a person is prosecuted for any offence under the Act, certain defences are available, such as showing that they made all reasonable efforts to ensure compliance, or that a child produced a valid form of identification which purported to show they were over 18.

• Publication of lists of persons who were non-compliant.

• Once the licensing system is commenced, on conviction for any offence under the Act, the licence of the person convicted is suspended for between two and seven days for a first offence, or between seven and thirty days for a subsequent offence.
  

The Act contains wide-ranging new measures in relation to e-cigarettes (and also traditional tobacco products) seeking in particular to prevent vaping amongst teens and with which all retailers will be required to comply.