In light of the recent UK Government crackdown on disposable vapes, the vaping industry itself has started to look into measures to help reduce illegal and illicit vape sales with their vape licensing proposal.
What Is The Problem?
I know that illegal vapes are readily available – I often see them discarded when walking my dog. The TPD regulations which the UK must abide by, states that the maximum e-liquid capacity should be 2ml (roughly 500-600 puffs) and the maximum nicotine strength is 20mg.
I have seen 5000 puff disposables and 50mg nicotine strength disposables lying on the ground in public areas. Even if disposable vapes are banned – these illicit devices are still getting into the hands of the public. We have a guide to help you check if your device is genuine – see our Vape Authenticity Checklist.
In the recent statement from the government when they announced the disposable vape ban they also pledged £30m will be supplied to fund enforcement agencies such as the Border Force, HM Revenue and Customs (HMRC) and Trading Standards to help prevent illegal equipment and sales.
A little bit too late in my eyes – if this funding was available a few years ago perhaps we would not be in this situation now. We had the laws in place to prevent these devices being sold – especially to those under age. The enforcement agencies such as Trading Standards did not have the resources to make sure these devices were not on the market. Plus they will have been imported so why were the Border Forces and HMRC not picking them up earlier?
What Prompted This Action?
To try and tackle this issue a group of vape businesses, industry bodies and advocates have been championing the idea of a vape licensing system. As there was no action from the government, this group have compiled their own blue-print of a possible scheme.
In the UK Public Consultation on vaping and tobacco regulation, a number of businesses showed support for a licensing scheme. This was not actioned as the government cited this would be an additional burden for businesses and local authorities.
The group performed a FOI (Freedom Of Information) request showed that 1.57 million of illicit vapes were seized in 2023. However 95% of the sellers of these illegal vapes went unpunished.
What Are The Proposed Measures?
A proposal for a licensing scheme has been created by Vape Club and the UKVIA (UK Vaping Industry Association). You can view the PDF document here.
I am not going to copy and paste the whole document – but I will list some of the main points below.
There are 2 main categories – Retailer and Distributor Licences.
Retailer Licences
Objectives Overview
- To create a sustainable and viable funding base for enforcement and inspection functions relating to the vape sector.
- To foster a more responsible and accountable sector by tackling key concerns and challenges such as youth access and illicit product sales.
- To better enable regulators and Trading Standards to proactively enforce existing and future legislation.
- To reinstate trust in the legitimate vape sector and enable vaping to fulfil its full potential in helping the UK hit its smokefree 2030 ambition.
Structure & Funding
Licence Structure
The document states that…
“It’s critical that the retail licensing scheme doesn’t excessively block access to vaping products for adult vapers and smokers in the UK. As such, the option to apply for and potentially obtain a licence to sell vaping products should be available to all retail categories, including supermarkets, convenience stores, off-licences, forecourt traders, online retailers and specialist vape traders – given the uniquely harmful nature of smoking, retailers who sell cigarettes should be permitted and encouraged to apply.
All retailers who are granted a licence would need to meet and uphold a strict set of qualifying criteria. At the same time, there are some circumstances which would automatically prevent a business from being granted a licence at all.”
There are two sets of rules for brick and mortar (physical shops) and online sellers.
But in summary there would be reasons for refusing a licence such as if the business…
- stocks mainly youth appealing products (toys, confectionary etc) – obviously this does not apply to supermarkets who stock a huge range of products.
- has been caught previously trading without a licence, been punished or warned for previous age related sale offences or the owner has a relevant criminal conviction.
- has had a licence revoked they cannot apply within 2 years for a new one.
- primary function is not retail – for instance Takeaway’s, Hairdressers, Barbers, Taxi Drivers, Performance Venues and temporary events.
- is based on an online platform which does not allow the sale of nicotine or vaping products.
Application
The application process would be administered at local authority level with central government oversight. There is also a requirement to make sure that all licence holders are compliant with the rules.
Also as part of the application process suitable training must be given to ensure licence holders are aware of how to comply.
Licence Fees
According to the framework document, there is a proposed fee structure which could generate around £50m in annual self-sustaining funding. Apparently this is 60% more than the recently announced £30m increase in the enforcement budget from the UK Government.
There would be 4 bands of licence which is similar to the current Alcohol licensing framework ranging from £750 to £1,000 per premises per year.
Below are the proposed licence incomes.
When it comes to allocation of the funds received they should be used towards enforcement and administration.
Any funds left over should be used for schemes such as local stop smoking services, recycling services, education for licence holders and public education programmes.
Also a penalty system for those who do not meet the standards with fines as high as £10,000 will be a deterrent.
Compliance Requirements For Licence Holders
There is a strict set of criteria for licence holders to adhere to. These include…
- Complying with age restricted sales.
- Training staff
- Staff under the legal age are not allowed to approve the sale of age restricted products
- Keeping logs of refused sales
- Making sure promotional efforts & decor are not targeting under age purchasers
- Ensuring the location of age restricted products is different from areas targeted towards under age purchasers
- Only stocking products which appear on the MHRA (Medicines and Healthcare products Regulatory Agency) notified products list.
- Only stock products which meet TPD regulations
- Keeping records of transactions with suppliers
- Training staff to spot products which do not comply
- Comply with all advertising regulations
- (If a specialist vape shop) Not operating or owning a business social media account on platforms which are used disproportionally by people under the age of 18 where there are no age restriction settings. Such as TikTok and Snapchat – even if these are not used for promotion.
- (If a more general business – such as a supermarket) Social media accounts are permitted but must not make any reference to age restricted products.
- Being compliant with waste and recycling regulations such as WEEE and offering collection points for disposal / recycling of products and promote this service.
Penalties & Enforcement
Penalties
There will be 3 offence categories inspired by the current Alcohol sales offences…
- Category 1: Higher culpability and greater harm
- Category 2: Higher culpability and lesser harm or lower culpability and greater harm
- Category 3: Lower culpability and lesser harm
As you can see from the chart above, each category has a minimum fine structure.
Also for repeat offenders the penalty will increase depending on category and frequency of offences. Resulting in a maximum fine of £10,000 and having the licence revoked.
Illicit vapes fall into another category which is much aggressively punished. It is proposed anyone selling illegal or counterfeit vaping products should receive an immediate £10,000 fine and their licence will be reduced to a probation level. During the 2 years of probation if another offence occurs another £10,000 fine and loss of licence is proposed.
The £10,000 fine also applies if retailers are selling vaping products without a licence.
Enforcement
To ensure licence holders are complying with the terms of their licence, the local Trading Standards team should subject every retailer to…
- test purchasing exercises at a minimum of every six months to ensure they are following youth access prevention procedures
- stock inspection at least every three months to ensure the products they sell are registered on the MHRA notified products list and comply with TRPR provisions.
- general administrative and securities check every six months to check they are keeping an up-to-date refusals register etc.
- regular checks to ensure that they are not engaging in non-compliant marketing and
advertising practices – this must be done in collaboration with the Advertising Standards Authority (ASA). - regulator check to ensure they are meeting environmental and recycling obligations – this must be done in collaboration with the Office for Product Safety and Standards (OPSS).
Governance & Oversight
It is proposed that the licensing scheme should be administered at a local level (the same as the Licensing Act 2003). But the regulation of the policy and laws of the scheme should be administered at a central government level.
Local Authority Responsibilities
At the local authority level it is proposed the responsibilities should be…
- Processing applications from businesses and individuals in the local area who wish to obtain a premises or personal licence for the sale of vaping products – this includes creating and maintaining an online portal through which applications can be made and issuing guidance where appropriate.
- Keeping a register of all active, expired and revoked licences which can be fed into a central register of all licences across the UK.
- Processing all fees – these will be fed into a central funding pot which will then be divided up across the UK for administration and enforcement costs related to licence holders.
- Processing all fines – these will be fed into a central funding pot which will be divided up for enforcement relating to non-licence holders and other functions under the scheme.
- Mobilising and coordinating Trading Standards and local police to ensure enforcement functions – i.e., bi-annual test purchasing and bi-annual administrative checks – are being carried out.
- Ensuring that Trading Standards and local police are acting on reports of non-compliance in a timely manner i.e., within seven days.
- Liaising with the Home Office and The Department of Health and Social Care where appropriate to determine if there are grounds for immediate removal of a licence.
- Providing government with key statistics pertaining to the licence for the purposes of annual reporting – i.e., number of licensees, number of licence revocations, percentage of licences held by different retail categories.
Central Government Responsibilities
The central government level should be responsible for:
- Overseeing laws and policies relating to the scheme and establishing a national framework for vape licensing.
- Ensuring all statistics provided by local authorities are consolidated into an annual national report.
- Distributing funds generated through fees and penalties across local authorities.
- Ensuring local authorities are meeting enforcement and inspection targets and, if necessary, introducing penalties for those who routinely fail to fulfil responsibilities in this area.
- Ensuring local registers of active, expired and revoked licences are consolidated into one central register – this is to give a national picture as to the number of licensed vape sellers and allows local authorities to see if a retailer had a licence removed by another council.
Governing Authorities
A list of authorities to be involved with the licensing process should include…
- Trading Standards – which will play a significant role in enforcing the compliance requirements of the licence and taking action against retailers who are engaging in illicit activity and trading without a licence.
- Local Law Enforcement – which will be critical in assisting Trading Standards in carrying out enforcement functions.
- The Office for Product Safety and Standards – which should engage with local authorities and trading standards to provide guidance on environmental and recycling responsibilities enforced by the scheme.
- The Medicines and Healthcare products Regulatory Agency (MHRA) – which is ‘the competent authority for the UK’s notification scheme for nicotine containing vaping products in Great Britain and Northern Ireland’.
- The Advertising Standards Authority – which should engage with local authorities and Trading Standards to provide guidance on marketing and advertising standards enforced by the scheme.
- The Home Office – which should jointly govern the scheme alongside The Department of Health and Social Care.
- The Department of Health and Social Care – which should jointly govern the scheme alongside The Home Office.
Distributor Licences
Distributors are defined as those in the centre of the chain – i.e. connecting manufacturers with retailers.
A distributor licence is a separate category – which is applicable if the distributor only sells to retailers. If the business sells to customers they will also need a retailer licence.
The distributor licence would apply for the whole business, not each separate premises.
As the licence covers the whole business the penalty fees are increased…
There will be a 4 strike penalty system with the 4th offence incurring a fine of £100,000 and having their licence revoked.
Next Steps
This report will be distributed to all Members of Parliament, working members of the House of Lords, Members of the Senedd, Members of the Scottish Parliament and senior Civil Servants.
Hopefully the next step will be to launch the framework at the Houses of Parliament for discussion.
Interaction will continue with policy makers to evolve the structure to ultimately aim for the vape licensing scheme to become mandatory.
Who Has Been Involved?
Vape Club
The retailer Vape Club commissioned the development of the licensing scheme framework
In an article on their website discussing the licensing framework – Vape Club stated…
“While we may have spearheaded this new legislation model, we’re by no means its only architect. We did not want this just to be our views, so we consulted with a variety of Industry experts, business owners and Trading Standard officials to create a fully formed blueprint for the future of vape licensing.
That being said, we by no means expect this to be perfect. We’ve done the best we can, interviewed a lot of stakeholders and taken note of a lot of opinions. We’re open to discussing how it works and how it’s implemented. But, we thought it was important to start this conversation and create a working model.”
UKVIA (UK Vaping Industry Association)
Vape Club is a leading and founder member of the UKVIA.
The UKVIA have been actively promoting the licensing scheme and the Director General John Dunne attended the parliamentary launch of the framework.
UKVIA Director General John Dunne today attended the parliamentary launch of a framework for the UK’s first vape retailer and distributor licensing scheme.
Key takeaways from the framework, which has been created to enable Trading Standards to ‘bring the hammer down’ on rogue…— UKVIA (@Vaping_Industry) February 21, 2024
Speaking on the scheme, John Dunne said: “This is an incredibly important and timely piece of work, and one the government should pay careful consideration to if it is serious about its commitment to tackling youth vaping while also working towards a smokefree future and giving… pic.twitter.com/pl2atwPGFP
— UKVIA (@Vaping_Industry) February 21, 2024
The association have been advocating for a vape licensing scheme for five years to help keep the sector well regulated. Therefore they were involved with the consultation to create the proposed scheme.
The UKVIA has also been part of a major industry-wide consultation over the last couple of months which has led to the development of a vape retailer and distributor licensing scheme. If implemented, such a scheme would help bring the hammer down on rogue players and could…
— UKVIA (@Vaping_Industry) January 30, 2024
The UKVIA launched their “Be Vape Vigilant” campaign in late 2023 to encourage reporting of rogue traders engaged in under age or illicit vape sales.
The results were quite shocking and were useful in constructing the licensing framework and display why such measures were needed.
Over 100 people reported retailers and 47% of reports related to illegal or illicit products and 18% reported under age sales.
The results also highlighted how 2 of the rogue sellers had previously been reported to Trading Standards but were continuing with sales.
You can continue to report instances of rogue traders…
Scan the QR code on the left with your phone camera to be directed to the website to report. Alternatively head over to www.bevapevigilant.co.uk.
Fill in the “file a report” section with the name and location of the retailer.
Also add a description of why you are reporting them.
Reports will then be passed onto the relevant authorities and progress will be monitored.
John Dunne said…
“Make no mistake, the issue of youth access to vaping sits firmly with unscrupulous traders who are happy to sell to children. To combat rising numbers of children vaping, the supply of vapes to the underaged has to be cut off at source.
“However, there is an important role for industry, regulators, the education sector and enforcement bodies to collaborate to ensure that vapes do not fall into the wrong hands.”
Other Participants
Also many well-known UK vape advocates and industry bodies were consulted in the creation of the framework.
The following are listed as Stakeholders of the scheme…
- Kate Pike – Lead officer for Vaping with Trading Standards.
- Clive Bates – Vape Advocate extraordinaire and Director of Counterfactual Consulting.
- James Lowman – Chief Executive of the Association of Convenience Stores
- Robert Sidebottom – Managing Director of Arcus Compliance
- John Dunne – Director General of the UKVIA
- Michael Landl – Director of the WVA.
- Andrej Kuttruf – Chief Executive of vape retailer Evapo
- Chris Kelly – Founder and CEO of Phoenix 2 Retail
- Nancy Loucas – Founder and Executive Coordinator of the Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA)
- Mark Oates – Director of WeVape
Industry & Advocacy Responses
Mark Oates (Director of consumer group We Vape) Response
“I was pleased to contribute to the report, a licensing scheme of some kind even if it isn’t exactly as this one suggests would help provide the resources to Trading Standards that would reduce illicit and underage sales. We know that the current Government plans to ban disposables won’t work, so this will be needed if we are going to solve the problem.”
Evapo (Retailer) Response
(Extract copied and pasted from here)
In recent years we have seen more and more retailers starting to stock vaping products, especially disposable vapes. From tanning salons to pizza shops, these locations realistically have no reason to be selling these products, but are instead cashing in on the opportunity to make money from what they see as a popular product.
Unfortunately, many of these locations are not equipped to provide adult smokers with the information they may need to make the switch from smoking to vaping, and may also be more lax when it comes to age verification. While specialist vaping retailers are working to assist adult smokers in finding a stop smoking tool, and operating strict age verification policies, these rogue retailers are illegitimising their work by making it easier for underage people to access vaping products.
Andrej Kuttruf, Evapo’s CEO and Founder, explained in a recent interview with SkyNews:
“The problem we have is that the kids come to us, we send them away, and they go around the corner and they buy vapes from the mobile phone shop next to us. We then report these shops to trading standards and at best they might get a £26 fine, which is ridiculous.
This is what really needs to change, we need a licensing scheme to ensure that these vaping products are only being sold by specialist retailers, and we need drastic fines to really hurt the people who sell to kids.”
A vape licensing or registration scheme played a big role in Evapo’s response to the Government’s call for evidence and open consultation on youth vaping, allowing us as a vaping retailer to share our view on how it could help to better regulate the sale of vaping products.
It is clear that the rise in underage vaping can be linked to the proliferation of sales in locations that have no reason to be selling this type of product. In fact, a test purchasing programme conducted by Trading Standards highlighted the problem when they used a group of under 18s to identify locations not following age verification. This programme not only found that many of these locations were willing to sell to minors, but also that many of the products sold did not comply with UK regulations and were not legal for sale in the UK. This could mean that the nicotine strength exceeded the 20 mg/ml maximum, they contained more than the allowed 2ml of nicotine-containing e-liquid, or just that the product had not been approved through the MHRA.
Of those locations tested, the biggest offenders were:
- Markets or car boot sales, where all 3 of the attempted purchases were successful and 100% of the products were non-compliant
- Discount shops, where 11 of the 21 attempted purchases were successful and 52% of the products were non-compliant
- Mobile phone shops, where 10 of the 20 attempted purchases were successful and 50% of the products were non-compliant
Not only do these actions break the law and fly in the face of legitimate retailers who are strictly adhering to age verification, but non-compliant products have likely not been subject to the necessary health and safety checks and could in fact be very dangerous.
Social Media Responses
Have your say in our latest poll of the week 📊
Do you support a licensing system for vape sellers? #RNpoll #poll #polloftheweek
— RN (@ThisIsRN) October 26, 2023
My Thoughts
In general I can see a lot of positives in this proposal. For instance enforcement and punishment will be increased – which is a very good thing. Illicit and illegal vape sales damage the whole industry. How many vapers have heard friends complaining about how “all the kids are vaping”. Not to mention the scaremongering from the media.
However children are getting hold of vapes from other means – it can’t all be dodgy shops can it? If the shops are selling “under the counter” dodgy disposables I doubt they will care if they have a licence or not?
This doesn’t tackle the other suppliers – whoever they may be? Will the Black Market still flourish? Perhaps with additional resources the enforcement agencies may be able to investigate the supply chain outside of licensed retailers?
Would vape shops be upset about this as it is an extra expense – one shop near me is closing due to drop in sales – most people shop online.
It would be OK for large chains and supermarkets but the smaller independent shops could struggle.
All in all it sounds like a positive move – but there are some pitfalls?
Let me know your thoughts on the vape licensing proposal in the comments below!
