Should vape retailers be licensed?

The vape industry is currently contending with two major problems. 

The first is illegal devices, which often have an e-liquid capacity of more than 2ml (and may have higher nicotine levels than allowed). As I’ve written before, the real danger is not higher nicotine levels or higher capacity, but the danger that untested, poor-quality e-liquid is used. 

Secondly, more younger people are starting to experiment with vape devices, with some going on to regular use.

To some extent this was inevitable. Vape devices are easier to use, more attractive and hugely less harmful than smoking, but are still forbidden for under-18’s… and still deliver a stimulant. 

Age limits didn’t stop young people from smoking or drinking alcohol – nor do drug laws stop young people from doing drugs. It would be naive to think age limits on vaping would stop vaping. (However, we do need to remember that vaping IS stopping smoking, that the increase in youth vaping rates is accompanied by a decrease in youth smoking rates and ASH data shows that most young vapers had previously smoked.) 

The problem is exacerbated by stores selling vape devices without following regulations. These may be non-specialist stores – in a recent BBC Xray documentary, for example, the non-compliant shops featured were all convenience stores, while an ASH report found the worst culprits are mobile phone and discount stores. These stores may either have less understanding of regulations or be less invested in following the regulations.

Unfortunately, these shops undermine years of effort by the responsible independent vape industry to improve the quality and reputation of vaping.

Illegal sales have led to calls for bans on flavours, even though these are incredibly important for helping smokers switch to vaping. This is accompanied by calls for plain packaging, and Scotland is already consulting on further restrictions on marketing.  Neither bans nor plain packaging are likely to address the crux of the problem (illegal sales) – and in fact, a flavour ban will likely make the problem worse. Both will hamper the UK in achieving its smoke-free goals.

‘Licence to vape?’
One suggestion that the UK Vape Industry Association (UKVIA) has got behind is that of licensing (covered in A Blueprint for Better Regulation). 

The idea is that shops would pay a small fee for a licence to sell vape devices. The fee would go to the Medicines & Healthcare products Regulatory Agency (MHRA), who would use the money for enforcing vape regulations. This idea is controversial in the industry, though, and there are some strong arguments both for and against. Let’s explore them.  

Arguments in favour

More funding for enforcement
Trading standards are currently woefully underfunded and understaffed. If the revenue from a licence was diverted into enforcement, more checks and investigations could remove illegal products and help deal with under-age selling. Even a modest fee, if multiplied across the many thousands of shops which sell vape devices, could lead to a significant increase in enforcement efforts, helping to combat both illegal sales and non-compliant products. 

Make Trading Standards life easier
Some Trading Standards bodies are confused about the regulations around vaping. This has been compounded by some incorrect guidance being released and poor reporting. However, checking to see if a business has a licence would be easier for Trading Standards. 

Of course, Trading Standards would still need to do additional inspections, and respond to complaints. Just because someone has a licence doesn’t mean they would follow the regulations. However, it would, for example, make Trading Standards’ life much easier with repeat offenders who had had their licence revoked. To test if someone is trading without a licence is far easier than checking if someone is supplying illegal products, or making underage sales.

Increase the incentive to follow regulations
Currently, penalties are not enough to deter repeat offenders. The threat of losing a licence could increase the incentive to comply with regulations. 

Of course, some businesses are breaking the law already, and may not be deterred by the threat of losing a licence. So breaking the rules also needs to be combined with more serious fines.

Currently, rogue traders are often let off with a tap on the shoulder or a limited fine, with one example being just £850 for four offences. Higher fines, especially for repeat offenders, would increase the deterrent, and the revenue could be used for additional enforcement. 

Arguments against

It could increase the cost of doing business
Vape shops are already under pressure, and adding an extra layer of cost and bureaucracy would only increase this. It would be crucial not to set the fee too high, following the principle that the cost and regulation should be fair and proportionate. 

On the other hand, the fees could easily be made up by removing competition from illegal traders and devices. (It’s a lot easier to sell your 2ml vape pen if the dodgy trader down the road is no longer selling an illegal 5ml disposable device!) 

It could reduce the availability of vape devices
My biggest concern is that by increasing the barrier to selling vape devices, licensing could impact the availability of vape devices that can save smokers’ lives. On the other hand, it does mean that the shops that do provide vape devices are likely to care more about quality, and it will help the dedicated shops which provide the best service and advice to smokers switching to vaping. Again, it would also be crucial to keep the fee low and the application process simple. 

Tobacco isn’t licenced
One argument I hear is that vape devices shouldn’t be licensed when tobacco isn’t. The answer is, of course, that tobacco should be licensed too. The concerns that apply to vaping (underage sales and illicit products) also apply to tobacco – except the consequences when tobacco, which is both more addictive and orders of magnitude more harmful, is sold to young people are far more severe.

Do note that if new suggested age limits for tobacco purchases are put in place (increasing the age limit by a year each year) the need for and cost of tobacco enforcement will be increased. This will provide a very strong case for a licensing system for tobacco in tandem with a licensing system for vaping. 

It would be a difficult policy to enact
One argument I hear against the regulations is that it would be difficult to persuade the government to enact it. The process would be slow and complicated. I’d argue, however, that the difficulties of enabling legislation shouldn’t stop us putting the case forward for it (if it is the right thing to do). 

Adding cost and red tape to selling vape devices goes against many of my instincts.  It’s not a magic bullet, and it does come with complications. On the other hand, it’s a damn site better than many of the alternatives. 

My worst-case scenario is that the vape industry comes to be viewed as the new tobacco industry, when instead it should have a positive reputation as an industry that is reducing death and disease and improving the population’s health and life span. Taking steps to address the shops and traders who are bringing it into disrepute wouldn’t solve the problem completely, but it would help address it while ensuring that vapes still reach the people who need them – smokers.