UK Gov Mulls Flavour Bans and Vape Taxes

Vaping is under scrutiny again, and that’s partly the result of its own success. Since vaping has become popular in the UK, smoking rates have fallen to the lowest in decades, with regular smoking amongst children now below 1%.

At the same time, vaping, while better than smoking, is not problem free. Many of these problems derive from irresponsible sellers breaking the rules - selling illegal vapes and/or selling them to people under the age of 18. These problems are compounded by the fact that when sellers do break the rules, they usually get away with it. 

Now a new UK government consultation aims to gather evidence on vaping - a consultation likely to be followed by new rules. This represents both an opportunity and a threat - an opportunity to solve some of these problems if the government gets it right, and the threat of increased smoking rates if the government gets it wrong.

Crucially, all vapers can submit responses (ideally backed up by evidence). For vapers wanting to respond, I hope my own thoughts, based on 15 years working in the vape industry as well as seeing and reporting on the consequences of vape laws across the world, will help.

The proposals, and what they mean for vapers

Restricting vape flavours
Options for restricting vape flavours vary from the extreme of banning all flavours except tobacco to limiting the names manufacturers could use.

Any restrictions on flavours would be a disaster. Evidence clearly shows that vape flavours are important for those switching to vaping. Indeed, one recent US study found that 15 additional cigarettes were smoked for every one less vape pod sold due to flavour restrictions.  

Even the mildest suggestion, that we allow generic names such as ‘Blueberry’ but ban specific names such as ‘Blueberry Muffin’, is problematic. 

That would be great for the vape-selling tobacco industry, which has had a hard time competing with the ingenuity of the independent vape industry. However, it would also mean that customers would not be able to know which flavours they are buying.

After all, there’s a big difference between Blueberry and Blueberry Muffin.

Does that matter? 

I think it does. First, it would massively reduce competition in the industry, which would mean fewer companies trying to make products to get and keep smokers off cigarettes.

Secondly, it would diminish the attractiveness of vaping compared to smoking. After all, while some smokers transition easily from smoking to vaping, others find it harder - and quite often it’s finding one particular flavour that helps them finally make the switch. 

Thirdly, it could increase the attraction of illegal vape devices that already make up one third of UK sales. Indeed, in the United States, where there are strict flavour restrictions, there has been a flood of illegal vape devices into the country.

Regulating point-of-sale displays
The government gives two options here - either vapes should be behind the counter but on display, or behind the counter but not on display, with an option for an exemption for specialised vape shops. 

It’s important that vapes are not exposed to the same restrictions as cigarettes. That shows a positive message that vaping is less harmful, and keeps the options available and in sight for smokers. That’s especially important at the moment, because the majority of people still think vaping is as harmful as smoking . This is in stark contrast to the government’s evidence-based assessment that vaping is at least 95% less harmful than smoking.

However, it seems reasonable that in non-specialist shops vapes should be behind the counter - at the very least, this would reduce the option for children to shoplift them. 

Regulating vape packaging and product presentation
The government is considering whether to:

·Ban the use of  ‘child-friendly imagery’ such as cartoons
·Prohibit all imagery but allow branding 
·Stop all branding altogether

While this will inevitably cause problems when it comes to deciding the lines of what is ‘child-friendly imagery’, it seems sensible to disallow anything blatantly aimed at children, such as cartoons that clearly represent characters found in children’s programs. No responsible retailer would allow or sell these anyway. 

(Note I am specific to the type of cartoon here, as some organisations deem any vector image to be a cartoon. A ‘vector illustration’ is a broad term covering almost all non-photographic imagery or line-art graphics. A ban on vector illustration would mean a big move towards plain packaging.)

However, there’s no need to go further. There’s already a huge warning label on vape products, and research has found that people who notice these warning labels on vaping devices are more likely to believe vaping is as harmful as smoking.

Going any further towards the plain packaging used with tobacco cigarettes would again reinforce the impression that vaping is as bad as smoking. 

Restricting the supply and sale of disposable vaping products
As I’ve often argued before, disposable vapes aren’t great for long-term users - or for the environment. At the same time, they make a great entry point for smokers into vaping. 

What’s more, experts such as Dr Stuart Griffiths of Yorkshire Cancer Research are concerned that a ban on disposable vapes will stop the most vulnerable members of society from using vapes.

My biggest concern is the black market. Trading standards estimate that roughly one third of vape devices currently sold are already illegal , likely due to poorly thought out legislation such as the 2ml limit on e-liquid levels in vape devices. 

It’s well worth looking at what’s happening in Australia after severe restrictions on the supply and sale of disposable vapes. Within 12 months:

·A thriving black market had developed, with an estimated 88-97% of vapers buying devices illegally
·Youth vaping increased dramatically
·There was a substantial decrease in government revenue

While it seems surprising that youth vaping could increase, there’s a corollary with tobacco bans here. In fact, when explaining their opposition to a ban on disposable vapes, the UK Trading Standards Agency, pointed out that when tobacco was banned in Bhutan and the country was flooded with illegal tobacco, child smoking actually increased.

Instead, I suggest that existing rules are more strictly enforced. We have strong rules around selling vapes to children - perhaps we should try enforcing these, and making sure we have the resources to do so, instead of adding more rules Trading Standards simply won’t be able to enforce?

Regulating nicotine-free vapes
There are strict controls over the ingredients that can be used in nicotine-containing e-liquids. This includes prohibiting “any ingredient that poses a risk to human health in heated or unheated form.”

E-liquid must also undergo emission testing before it is sold, which helps identify any harmful substances. However, zero nicotine e-liquid falls under a less stringent set of regulations (the GPSR).

This makes no sense. Harmful ingredients will cause just as much harm in non nicotine-containing vapes as they will in nicotine-containing variants. Many producers do voluntarily test their e-liquids. This is an expensive and time-consuming process that puts them at an unfair disadvantage over producers who do not test. 

What’s more, analysis shows that some ‘nicotine-free’ vapes actually contain nicotine.  To maximise the potential of vaping, we need to ensure that both nicotine and non-nicotine containing e-liquids are regulated in the same way before being allowed on the market. 

Taxes on vapes
A major reason why vaping has displaced smoking is that vapes are cheaper. However, the consultation is rather confused here - stating that disposable vapes are cheaper than refillable vapes. 

In reality, while it’s cheaper to buy a disposable device than a refillable device, disposable vapes are far more expensive over time. 

The government has suggested increasing taxes and duty on vaping devices. The evidence is clear here - taxes on vapes lead to reduced vaping and increased smoking rates among 18-25 year olds.

So a vaping tax will reduce vape consumption, but at the cost of increased smoking rates. It would also likely aid the black market by making illegal devices comparatively cheaper.

Introducing on-the-spot fines for underage sales
For shops that repeatedly and knowingly flout the law, I think the penalty should be much higher than the proposed £100/£200 fines. We know that convenience stores have had illegal stock confiscated, and the value of this is much higher than the fine. Sadly, this is not deterring companies from breaking the law, and a £100 or £200 fine is unlikely to make a difference. A fine of £10,000, however, might make a difference.

Still, for this to be effective, the resources will need to be put in place for Trading Standards/councils to enforce it. Currently, we know who is breaking the law - you can find websites selling illegal devices with a few seconds of searching - but even when these lawbreakers are reported, they are rarely investigated.

One option would be to introduce a vape licensing scheme. This would both raise the stakes for compliance by shops frightened of losing their licence and raise revenues for enforcement. 

While we’re on this, there’s a really important element missing here. Online websites are supposed to verify all customers, but many don’t. It’s extremely frustrating for legitimate and law-abiding companies to see disreputable websites openly and brazenly breaking the rules. Again, we desperately need enforcement of existing age-restriction rules. 

Let’s not forget about reduced harm
The assumption behind the consultation is that we can stop all non-nicotine users from taking up vaping. 

That’s unlikely. Attempts to prevent nicotine use - attempts which go back centuries, not decades, and have, at times, included bans and even the death penalty - have always failed, as have our attempts to stop drug use and underage drinking.

That’s not to say we should encourage nicotine use. In particular, we should try to discourage youth nicotine use. At the same time, once we accept that some nicotine use will always take place, we can also look at other practical options. And one of these includes making nicotine use safer.

Even in its early days, vaping was a better alternative to smoking. In the last 15 years, it’s made further progress still. Thanks to a combination of eliminating harmful ingredients, emissions testing and major technological advances, legal vape devices are less harmful than they've ever been. 

If we allow time, I think we can expect vaping to get safer again. But for that to happen, it’s crucial to implement sensible measures which allow the legal industry to flourish - and avoid measures which benefit the black market sellers who sell unregulated devices and e-liquid. 

Wrapping up
New legislation could be a good thing - if it sensibly considers both evidence and vapers’ views. If it doesn’t, we could soon see increased prices and decreased choice.

Vape legislation in other parts of the world has been imposed without considering the needs and views of vapers. This time, though, we have a chance to share our opinions.