The Tobacco Products Directive
What is the Tobacco Products Directive?
The TPD is an EU directive that has been passed into UK law. It took effect on 20th May 2016, although there is a transitional period of 12 months (see ‘key dates’ below).
Realistically, the vaping industry couldn’t avoid regulation forever and nor should it. Consumers should be protected from bad suppliers and bad products. However, the TPD is an horrendous piece of legislation that goes way beyond consumer protection and makes selling ecigs harder than selling cigarettes. Most of its new rules are pointless at best and it is still unclear how some will be defined and enforced.
The TPD’s biggest effect is likely to be to decrease the number of people quitting smoking, despite all of the credible evidence points to vaping being around 95% safer.
Key points of the TPD
- The maximum e liquid bottle size is 10ml.
- The maximum amount of nicotine in any liquid is 2%/20mg.
- Every single variant of e liquid and device capable of vapourising e liquid must be tested and the MHRA must be notified of each product and its test results six months before it can be sold.
- The maximum e liquid capacity of tanks/clearomisers is 2ml.
- Tanks/clearomisers must be ‘leakproof at the point of refilling’.
- The advertising of any and all vaping products is banned. This includes physical advertising and electronic communications, such as emails and social media platforms.
- Cross-border EU sales can only be conducted if a retailer registers with both their home country and the country they export to.
20th May 2016
All advertising is now illegal.
Sales to other EU countries are prohibited without necessary registrations.
Non-compliant stock can still be manufactured, bought and sold.
Most retailers will still be selling non-compliant products as usual, so consumers will be largely unaffected. However, some small manufacturers will close down as they realise that TPD compliance is not viable.
20th November 2016
Retailers have six months to clear their shelves of non-compliant products.
New non-compliant stock cannot be manufactured, purchased or sold.
Over the next six months almost all small manufacturers will close down. Retailers will start selling a much smaller range of products.
20th May 2017
It is now illegal to sell any non-compliant product. Only products tested and MHRA notified six months earlier can be sold.
At this point the market will look very different. There will be a lot less vendors and a lot less choice available. We will probably see a few cases brought about by Trading Standards against vendors who seek to exploit ‘loopholes’ and ‘grey areas’ in the TPD.
Effects on each product type
E liquid will only be available in 10ml bottles, at a maximum strength of 20mg (realistically, manufacturers aren’t likely to produce liquids over 18mg, to allow some margin for error). E liquid with no nicotine (0mg) does not need to be tested and is unaffected by the TPD.
E liquid bottles must have a childproof cap – which all responsible manufacturers already use anyway.
Even though the MHRA’s notification costs are only likely to be a couple of hundred pounds per flavour, per strength, the costs of testing could reach several thousand pounds for each. This means that a small manufacturer with, say, twenty flavours in four strengths, could face compliance costs of around a quarter of a million pounds.
Therefore, the number of manufacturers, and in turn the variety of e liquids on the market will be reduced dramatically. Most small to medium sized businesses who want an own label product will outsource their manufacturing to already compliant manufacturers while focusing on retail (like supermarkets do with their own brand products).
At Vapable, we will probably reduce the number of flavours in our own brand range initially and then add more back in over time. This will enable us to spread the cost of TPD compliance. In the meantime, we will increase the range of e liquid brands we stock from the larger, more established manufacturers who will attain full compliance easily. This will allow us to continue to offer our customers plenty of choice with the value and level of service that we have become known for.
Tanks and Clearomisers
As with e liquids, all tanks and clearomisers must be tested and the MHRA must be notified six months before they can be sold.
Only tanks with a capacity of 2ml and below will be available. Tanks must also be ‘leakproof at the point of refilling’ and deliver a consistent dose of nicotine.
Unfortunately, none of the tanks and clearomisers we currently offer would satisfy the new legislation, mainly because they are not ‘leakproof at the point of refilling’.
However, thankfully, the TPD has focused on the e liquid bottle, rather than the tank, when defining what ‘leakproof refilling’ means. New tanks designed to fill via a small hole that the nozzle of an e liquid bottle fits snugly into should be fine.
Manufacturers are just starting to bring out these ‘top-hole’ tanks that should satisfy the TPD’s criteria. At the moment they are only addressing the higher end sub-ohm type market. However, over the coming months we are confident that we will see a diverse range of tanks available.
On the ‘consistent dose of nicotine’ issue, it looks as if there will be some lenience in interpretation. As long as the tanks deliver a reasonably consistent nicotine dose in lab conditions (which sidesteps unquantifiable, real-world variables, such as how hard or long a user inhales), they will be fine.
By the time the TPD really takes effect we should be offering plenty of choice of new, compliant tanks for most vapers.
Batteries and mods
As far as we understand, batteries and mods sold without a tank or clearomiser should be unaffected by the TPD. This is because they are not capable, in isolation, of vapourising e liquid. However, if a battery and tank are sold together as a kit, the whole kit would need to be compliant.
This probably just means that after November 2017 all batteries and tanks will be sold separately, with retailers perhaps suggesting which would work best together.
Accessories such as chargers, cases, lanyards, empty bottles and so on will be unaffected by the TPD.
There shouldn’t be too much disruption to the sales of flavour concentrates for those who make their own e liquid. After all, the flavours themselves, contain no nicotine and are multi-purpose.
However, we at Vapable are preparing ourselves for someone from Trading Standards to decide that, because we are selling flavour concentrates in the same place as ecigs, they should all be treated as vaping products. For us, this would mean testing and notifying MHRA of well over five hundred flavours in several different bottle sizes at a cost potentially running into millions of pounds.
For this reason, we will be setting up a separate business in the next few weeks with its own website selling only multi-purpose flavour concentrates. We will let all of our customers know as soon as this happens.
Propylene Glycol and Vegetable Glycerine
Much like flavourings, PG and VG are multi-purpose, aren’t vaped alone and aren’t really addressed by the TPD. We will continue selling them as usual for now. However, again, we are preparing ourselves for someone from Trading Standards to decide that they should be treated as vaping products.
As far as we know, the issue of the sale of nicotine in PG or VG for DIY e liquid mixing has not yet been clarified, so is something of a grey area.
There is an argument that nicotine isn’t e liquid and isn’t vaped alone, so shouldn’t be subject to the 10ml/20mg limits. Also, nicotine does have other applications. As a consequence we are aware that some vendors expect to still be able to sell 72mg nicotine after May 2017.
However, we fully expect this issue to be clarified soon and for nicotine to only available in 10ml bottles at a maximum strength of 20mg to the general public after May 2017.
We hope this information has been useful. We’ll continue to update it as we learn more about how the TPD will work in practice.