Electronic Cigarettes and The Law

LEGISLATION

The introduction of the smoking ban in the UK was set in motion by “The Health Act 2006”. On the smokefreeenngland.co.uk web site it states that the ban was introduced to ‘protect employees and the public from the harmful effects of second-hand smoke’.
In England the ban took effect on 1 July 2007. The ban in Wales came into effect on 2 April 2007 and in Northern Ireland on 30 April 2007.

Within the legislation smoking is defined as: -
(a) “smoking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and
(b) Smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked

See the full legislation here(new window)

Although ‘tobacco’ features heavily in this wording, the inclusion of ‘any other substance’ extends the scope of the ban. The key words thereforeare ‘smoking’ and ‘lit’.

The electronic cigarette is not lit and it does not produce any smoke.
It is therefore legal to use an electronic cigarette in a public place
Also, the ecig does not go against the rationale and goal of the ban to protect people from second-hand smoke – as it does not produce any.  

 

CAUTION ADVISED

It does, however, look like a cigarette and produces a vapour that is designed to look like smoke – and so a bit of controversy is inevitable. Let’s face it, if you are getting your nicotine ‘hit’ in a public place from gum then nobody is going to bat an eyelid – pulling out an electronic cigarette and producing a cloud will draw stares.
Ultimately though, this is what makes the ecig so valued for the majority of its users. Using normal cigarettes was not really about the tobacco, it was the nicotine and the tactile sensations, the final course of your meal, the accompaniment to a drink, seeing the smoke! The electronic cigarette promises you this, indeed gives you this once more – all we’d say is just be a bit sensible.

It is true that for nearly every electronic smoker we’ve spoken to who has been ‘questioned’ a simple explanation does the trick. But not everyone will ask you about it, some will just report you and if a landlord objects then you can’t blame him, after all, an electronic cigarette looks like normal cigarette from a distance and might send the signal it’s OK to spark up.
So ask first, explain what it is and demonstrate if they let you. They will see the light is an LED and not a fire risk and that the smoke is a vapour that goes in seconds without leaving a smell.
Most owners of premises that allowed smokers before the ban are likely to be interested, especially if they have seen a drop off in trade as a result of it.

The law is on your side, but caution and courtesy are advised

 

THE FUTURE

The electronic cigarette is legal right now in the UK but it can’t be sold as a NRT as they do not have the license for this. Most sellers, including our recommended retailers all require purchasers to be over 18, the legal age for tobacco products. The product might not contain tobacco but as most cartridges contain nicotine, an addictive substance, we think this is a wise move.

 

Officialdom has been fairly quiet even though the electronic cigarette has been getting a fair bit of attention in the media - most of it is positive (see our ‘In the News’ section). Most stories focus on it beating the smoking ban, new users and pub landlords reactions.
Back on the 28th May 08 Dr. Chris Steele on the show ‘This Morning’ stated

“The Electronic Cigarette is just like smoking but without the 4000 poisons contained in a normal cigarette".

He also stated that

"it is totally legal in pubs and bars but would be under the management’s discretion.”

 

Policy decision-makers have yet to make an official call but they are being advised.
Ian Gray, Policy Officer at the Chartered Institute of Environmental Health issued a paper as part of his role as a regulatory advisor on the 8th September 2008 entitled ‘CIEH response to Department of Health consultation on the future of tobacco control.’ In response to the question,

‘What do you believe the Government’s priorities for research into smoking should be?’, the number two priority was given as:-

Monitoring and examination and, where necessary, testing of smoking apparatus purporting to be ‘smokefree’ including so called ‘electronic’ cigarettes and cigars.

See the full report here at smokefreeaction.co.uk (opens in new window. Part C, 18.0 Qu.13, page 17 of pdf)

Away from official reports Mr. Gray has shown himself to be an advocate of the electronic cigarette.
“We have been the advisors to all the regulatory authorities on this matter and are hearing about it more and more.
“Our main concern was that officers wouldn’t be able to tell the difference but it’s clear if you are close to them they’re not normal cigarettes.”
He added: “They are perfectly legal to use because, in our view, this isn’t smoking. If people are using them it’s very unlikely that a local authority would want to make a prosecution as the legislation is to protect people from second-hand smoke but if there is none of that then there’s not really a basis for a prosecution.”
Mr Gray says the craze is catching on: “They seem to be using them a lot in the North. I suppose if you don’t want to go outside, it’s a real alternative. They seem to be particularly popular in bingo halls where older people who may not want to get up and go outside and all that goes with that such as collecting your coat.”

 

Although we can’t find the original source for this many sites are using the following quote: -

"I can't see any reason why the Electronic Cigarette couldn't be used in Pubs. The ban only covers smoking, not the use of nicotine" - A UK Department of Health spokesperson".

 

The World Health Organisation Study Group on Tobacco Product Regulation is scheduled to address the electronic cigarette, among other topics on the 12-14 November 2008 in Durban, South Africa..
See the full statement on the WHO website here (new window)

 

The '‘tobacco control collaborating centre’ was set up in 2004. It lists amongst its aims: -

- Examining the most effective ways to increase knowledge and skills for tobacco control policy implementation and practice development among public health workers.  This work is to be carried out in alliances with local government, non governmental organisations and other sectors of the economy

- Providing those working in the field of tobacco control with an authoritative source of advice, information and resources

In it’s June/July 2008 newsletter it stated the following: -

‘A number of ‘electronic cigarette’ products are now being sold and there have been concerns expressed that the use of these will be confused with normal smoking of tobacco.
The advice to enforcement officers is that their prosecution statements need to include sufficient description of the evidence that smoking has been observed so as to be able to rebut any assertion that what they had actually seen was the use of electronic cigarettes.’

See the newsletter here (new window)

 

The Environmental Health News (ehn) published a story about a bar owner prosecuted for allowing smoking who had claimed in court that his patrons were using electronic cigarettes. They went on to comment that the claim ‘was compelling, as electronic cigarettes do not create ash or produce stubbed-out butts.’  See the article here (new window)

 

At eciginfo we find this encouraging, in the UK most of the objections focus on the similarity in appearance between an electronic cigarette and a normal one and the confusion this could cause. There does not appear to be a debate over whether or not they should be included in the smoking ban.
The issue of being able to market the product as a NRT will continue until official tests have been undertaken – but this is just about product marketing, it does not stop you using or buying the product.

We look forward to an official government statement and are pleased that awareness is growing.
We also want to see the results of proper testing and classification as we don’t want to find ourselves in the position of the Danes where electronic smoking was banned recently on the grounds that the type of nicotine used had not been certified by the government (see article here new window), or indeed of the Turks where sales have been suspended because the electronic cigarette is being imported into the country under the definition of pesticide! (see article here, new window)

 

Enjoy your electronic cigarette in public – it is legal!