Some text in this chapter has been reproduced from Brown et al.106 This is an Open Access article distributed in accordance with the terms of the Creative Commons Attribution (CC BY 4.0) license, which permits others to distribute, remix, adapt and build upon this work, including for commercial use, provided the original work is properly cited. See: https://creativecommons.org/licenses/by/4.0/. The text below includes minor additions and formatting changes to the original text.
The chapter addresses the following research questions:
- To what extent, and in what ways, do variations between UK countries in e-cigarette policy emerge during the study period?
- What other changes to the regulatory context of tobacco and e-cigarettes occur during the study period in the UK and across individual UK countries?
- To what extent is compliance with TPD regulations in product sales achieved, and what are the barriers to and facilitators and unintended consequences of implementation?
The chapter explores the political and legal context and implementation of the TPD regulations, from the perspectives of policy stakeholders, TSOs and both specialist vaping and non-specialist retailers. Building on findings from Chapter 3, the chapter also includes stakeholders reflections on young people’s use of e-cigarettes and perceived risks of e-cigarettes to young people. Interviews were conducted between June and October 2018.
Perspectives of policy stakeholders and trading standards officers
Policy stakeholder interviews included 12 individuals in England, Scotland and Wales whose professional roles included a significant emphasis on tobacco control policy.106 Stakeholders included four interviewees within government roles, three interviewees with roles such as tobacco control within government agencies and five policy advocates within the voluntary sector. Trading standards representatives were interviewed from 13 local authority areas in England, Scotland and Wales. Codes next to quotations indicate country and unique participant number.
Stakeholders’ views on tobacco control and the pros and cons of e-cigarettes
Interviews commenced with a discussion of tobacco control and direction of travel within the UK over recent decades, including drivers for sustained reductions in smoking and the emergence of e-cigarettes. There was consensus that success in reducing smoking was attributable to a wide-ranging package of measures, spanning pricing, advertising constraints and restrictions on locations where smoking is permitted. Many participants felt that these measures had facilitated a shift in cultural norms, with reduced exposure and access to tobacco among young people leading to stronger disapproval than in previous generations:
There’s been a shift in culture with regards to the acceptance of people who smoke and the acceptance of passive, being exposed to passive smoking. So we’ve had a huge shift in culture, which has led to the decrease, coupled with price increases, tax increases around cigarettes as well.
However, impacts were frequently described as inequitable, and this led several stakeholders to suggest that future actions in smoking harms require more effective targeting of disadvantaged groups alongside general population measures:
We want to bring the rates down across the board, but we know we need to do more targeted action, where those rates are higher.
In relation to the positioning of e-cigarettes, views were highly variable in terms of whether e-cigarettes constitute a positive or negative development for public health. All participants acknowledged limitations in the evidence on potential harms at the time of interview, with some participants suggesting that this impeded ability to provide clear guidance and communication to the public. Views of what this meant for practice, and the extent to which e-cigarettes should be accepted within public health, varied significantly. Many participants saw e-cigarettes as having a positive role in providing another smoking-cessation option with less harms than those known of for tobacco. It was suggested by some participants that the market-led provision of e-cigarettes was helpful in ease of access for smokers, for whom some current smoking-cessation options could be more difficult (e.g. where there was a requirement to engage with medical professionals). Concerns were expressed, however, that profit-driven provision meant that customers may not be getting clear and consistent advice on product use from retailers. Hence, some participants argued that it would be preferable for cessation advisors in statutory services to be trained to offer advice to those accessing their service. According to some participants, this would ensure positioning of e-cigarettes as a tool to transition away from nicotine rather than a long-term maintenance option:
Let’s get the right e cigarette with the right level of nicotine for the smoker. So that would mean training those vaping advisors, to make sure that people who are giving that, who are distributing this product, are aware of, if they smoke this, then they need to have this much nicotine, because getting the right amount of nicotine is so important in that smoking-cessation journey.
There was greater caution observed from respondents in Wales in particular on whether or not e-cigarettes should be actively recommended by cessation services, perhaps reflecting wider national debates across the UK nations and historical caution in Wales at policy level. Many stakeholders noted this difference, with some stakeholders suggesting that Scotland and England were both more supportive of e-cigarettes within cessation services than Wales:
Int: How would you see that actually working in practise, should vaping be recommended [in smoking-cessation services]?
E5, res: So I think it’s a done deal in England I don’t think anybody would seriously doubt it and in Scotland as well. In Wales there’s a debate.
All interviewees expressed concerns over the potential harms of e-cigarettes for young people, with consensus that monitoring uptake by young people was a priority, although interviewees were aware that evidence at the time of interviews suggested that regular use by young people was rare. The concept of tobacco renormalisation was discussed as a potential result of the growth of e-cigarette use, and the views of interviewees were highly variable on how to address this. Although many interviewees suggested that there was little evidence of renormalisation to date, this was interpreted differently as either ‘evidence of absence’ or ‘absence of evidence’. Some interviewees argued that the evidence had shown that shifting norms of tobacco use among young people were unlikely to be reversed, whereas other interviewees stated that it may be too soon to know the full impacts of e-cigarette emergence on smoking norms. Despite these variations, policy measures aimed at restricting young people’s exposure to e-cigarettes, while facilitating availability to smokers, were widely supported:
I’m generally in favour of the regulatory approach that we’ve taken in the UK which does feel like a good attempt of getting that balance right between keeping them away from kids and having information around that they are not harmless but, making them available to try and have them deliver the potential they have.
Perceptions of e-cigarette regulations within the Tobacco Products Directive
All interviewees were asked to consider the main e-cigarette measures within the TPD, with discussions of marketing restrictions, the introduction of warning labels, restrictions on sizes of e-liquids available and changes to devices, such as tank sizes and tamper-proof packaging. There was consensus that the TPD regulations represented a positive step in introducing regulation to the e-cigarette market, with concerns that legislation may have been slow to catch up with rapid growth of the market and range of available products. Requirements for product notification and restrictions on ingredients were particularly supported, along with marketing restrictions, with some interviewees suggesting that such measures could prevent a growing public perception of e-cigarettes as being as dangerous as tobacco, therefore, potentially undermining smoking-cessation efforts:
It’s helpful in so much as it addresses the issue of the product as not regulated, so it means that when people say well the product’s not regulated, that you can actually say there is a regulation in place. It gives from our perspective, it means that we’re no longer dealing with a maverick product.
There was also discussion of the content of the message introduced through the TPD (i.e. ‘This product contains nicotine which is a highly addictive substance’). Although the option of introducing a product warning label onto packaging and aligning this with practice in tobacco was generally well-received, there were mixed views on the content of this warning message. Many interviewees felt that the message was simplistic and could potentially alienate smokers, as well as seemingly conflicting with approaches to nicotine provision observed in other smoking-cessation products:
I find this slightly confusing, I’ve heard people suddenly talking about nicotine in a way which I don’t remember anyone talking about nicotine before ... so we’ve had NRT for what, I don’t know, about 20 years? I don’t think there is a warning on NRT saying this contains nicotine which is really highly addictive ... so why don’t we have warnings on NRT?
It was argued that further research was necessary into the perceptions of the message among different population subgroups, with future revision an option. The evidence base for other key measures was also discussed in relation to the cap on the level of nicotine available in e-liquids and on restrictions on tank sizes that limit the volume of e-liquid held. Several respondents suggested that these measures were not evidence led and may result in unintended harms. Concerns over potential risks of these measures included fears that, by making use of e-cigarettes more difficult through requiring more frequent purchase and refill of liquids, smokers who had switched to e-cigarettes may be deterred from continuing:
The tank size is not based on any evidence and it is annoying for people to have to continually fill up and leak and it’s an expensive way of doing things. There will probably be people who will have gone back to smoking because they can’t take the cuffuffle of it.
Among TSOs, in particular, there was discussion of restrictions as drivers for market innovations, as producers look for ‘loopholes’ to circumvent constraints. Several TSOs discussed observations of growth in sales of ‘short-fills’, where retailers stock bottles partially filled with non-nicotine e-liquids, leaving capacity for consumers to later add their own liquid nicotine, which can be purchased separately:
There are people making up fluid in their own houses, which is just absolutely mental to me.
Some TSOs also reported observing new products on the market that modify the existing tank on a vaping device to hold more e-liquid, meaning that the consumer is able to refill less often and the retailer is still compliant with current legislation:
The regulations say you can’t have anything more than two mil on a tank. A squonk is a bottom feeder with a little squidgy bottle and it goes in the device ... it completely circumvents the Regulations ... So yeah the squonks, the bubble glass on the tanks, expand the mil from 2 to 3 to 5.
Barriers to and facilitators of implementation of the Tobacco Products Directive
The process of policy implementation was discussed, including the lead-in period to full compliance and the immediate communication and enforcement activities undertaken. Initial understanding of the new legislation and the changing requirements among retailers was described as limited in comparison with tobacco because of significantly more experience of tobacco as a restricted product. Several reasons were cited for this, including limited resourcing within public health bodies and local authorities to publicise the new regulations to all those selling e-cigarettes in their area. All TSOs discussed the impacts of funding cuts on their work, with some areas losing as many as 50% of their staff in recent years:
I’m the only officer in [this area]. I’ve got 700 premises to deal with approximately ... I think it is generally down to local authority budgets, more than anything. It unfortunately comes to money.
This was coupled with new and emerging threats, including illicit tobacco, modern slavery and criminal gang activity. For many respondents, the choice was between acting on these issues and the perceived lower risk activity of e-cigarette use. Despite funding constraints across all nations, TSOs were reported to have increased visits to retail premises in the period leading up to the implementation of TPD regulations and during the transitional phase. In Scotland, TSOs reported that ring-fenced funding had been made available from the Scottish Government to fund and increase visits to retail premises to observe and enforce the roll-out of TPD regulations; however, this differed in England and Wales, where money had been made available in some local authorities, but had been provided on a bespoke basis from local authority budgets. As TPD regulations came shortly after introduction of age of sale restrictions in England and Wales, pre-implementation checks often involved use of young people aged 18–20 years to check on retailer requests for proof of age (with this practice more common in recent years because of restrictions on the legal basis for test purchasing by under-age young people). Many TSOs favoured this approach as conducive to good relationships with retailers and were keen to stress that they did not see their role as ‘catching out’ those who may not yet have been fully aware of TPD requirements.
Across the nations, there was consensus that the funding provided during implementation was not sufficient for direct communication with the majority of retail outlets, partly because of the rapid growth of settings selling e-cigarettes in recent years. This meant that, where limited funding and staffing were a factor, what resources were available were used to communicate more with those involved in e-cigarette manufacturing and wholesale, as opposed to attempting to communicate with direct retailers. Views varied as to the effectiveness of this approach, with some respondents observing that under-resourcing of messaging and communication left many retailers reliant on trade bodies and suppliers to inform them of the changes they were required to make:
Unless there’s more detailed funding provided then we’re unlikely to do it really and I suppose you could say that work should be done by the manufacturers, because the responsibility is there anyhow isn’t it?
After the expiration of the 12-month implementation period, it was reported that e-cigarette sales compliance monitoring was incorporated into normal practice for TSOs, meaning that site inspections were generally initiated only in response to intelligence being received from the public on illicit activity. However, the rate of reported incidents for e-cigarettes was described as minimal in comparison with illicit sales of tobacco and alcohol, which were much more frequently reported by concerned parents, schools and other stakeholders:
... we do get under age sales for alcohol, there is more complaints about them. And in relation to e-cigarettes we have only had three complaints since 2016.
However, despite limited capacity to communicate and enforce the e-cigarette regulations, including TPD regulations, there was a general perception of retailer compliance as relatively high.
When discussing perceptions and reported incidents of non-compliance with regulations among retailers, in both policy and TSO stakeholder interviews, the nature of the retailers themselves was raised as a factor. Specialist e-cigarette retailers were felt to be more likely to be fully compliant because of the desire to maintain their businesses, better links with trade bodies and often larger scale of their parent companies. More issues were cited as associated with non-specialist, often smaller, retailers who may have had limited experience of selling age-restricted products. The absence of constraints on the types of retailers able to sell e-cigarettes, coupled with the speed of market growth, meant that some businesses with little or no experience of staff training on age restrictions or legal frameworks for sales were active in the e-cigarette market. In these premises, many interviewees felt that non-compliance was more frequent than among retailers who traditionally sold tobacco or alcohol:
You can get it in a shoe shop or you can get it in a boutique or a chemist. So they never had to bother about age restricted products before. A watch repairer, mobile phone shops. People who have never had to deal with age-restricted products are selling NVPs [nicotine vaping products] and it’s like, ‘I don’t ask anybody anything’.
Future policy direction and potential review
The departure of the UK from the EU means that the TPD regulations can be reviewed by the UK Government, with initial commitment to do so in 2021 at the time of interview. Respondents were asked to consider what this may mean for future work in tobacco and e-cigarette regulations and most respondents felt that the direction of UK policy would remain largely unchanged, with little expectation of divergence in major areas, from either the EU or within the UK. Several respondents suggested that the UK had often been the leader in driving regulatory changes on tobacco and that this was unlikely to be reversed in the future:
We’ve gone further than the EU on most things so our advertising, tobacco advertising directive we go further than that in what we prohibit in terms of advertising, promotion and sponsorship. So we don’t just prohibit cross border advertising, promotional sponsorship we prohibit all advertising promotions and sponsorship. So there’s no reason why leaving the EU would change because that’s all translated into UK regulation.
It was noted, however, that the opportunity to review those elements of the TPD regulations with less supporting evidence could be a positive outcome, specifically in relation to restrictions on e-liquid sizes, message content on warning labels and tank sizes:
And actually we’ve got our doubts about whether or not implementation of [tank size restrictions] that is generally a good idea. So you know, going forward, that’s the kind of thing where we might say actually is it good evidence around that. And if not, then that might be something that we want to change.
Furthermore, the capacity to develop and adapt legislation quickly in response to new and emerging products adaptations, such as additions to tanks and ‘short-fills’, was also cited as a potential option for the UK operating outside the EU. Overall, there was little concern about the direction of policy after Brexit and little indication that major divergence across the UK nations was occurring, or was likely to occur in the future.
Retailer perspectives
Interviews with retailers were undertaken in parallel to policy stakeholders and TSOs, exploring retailer perspectives on perceptions of TPD regulations, implementation and compliance. Interviews included 27 retailers, including 18 specialist retailers and nine non-specialist retailers. Interviewee codes indicate country [Wales (W), Scotland (S), England (E)], retailer type [vaping specialist (VS), non-specialist (NVS)] and a unique identifier.
Perceptions of the role of e-cigarette retailers
Many vaping specialists argued strongly that their role was to provide advice and guidance on vaping to help the public quit smoking. Many vaping specialists identified as former smokers who wanted to help others quit like they had. Some specialists argued that all retailers selling vaping products should have knowledge of the area and should be able to give advice regarding use and cessation, with some vaping specialists arguing that vapes should be sold only by specialists with knowledge and training:
I don’t agree that e-cigarettes should be sold in petrol stations, they shouldn’t be sold in supermarkets, obviously we’re dealing with lithium ion batteries, we are dealing with a toxic substance ... I do believe that they should only be sold somewhere where the person selling it has some sort of idea what they’re selling, some sort of training for the staff.
Alongside emphasising their role in helping smokers to quit, retailers also emphasised a perceived responsibility to discourage non-smokers from taking up vaping:
... we will get the occasional, especially among younger people we’ll get people come in looking to vape and they don’t necessarily smoke. I mean we try to recommend that they don’t, it’s pointless taking up a habit if they haven’t got an addiction to nicotine already.
In discussions of attitudes and policies towards under-age sales, all respondents stated that they would not sell vaping products to individuals aged <18 years. Retailers described being accustomed to asking for identification to verify age if they suspected that a customer was aged <18 years. Many retailers specified that they followed the challenge 25 policy, where if a customer looks under 25 years of age then they will be asked to prove they are aged >18 years:
You get the occasional ones that come in and go I’m eighteen, and I’ll be like well I’m sorry but you have to prove it to me, oh well, and away to storm out the shop, so you are not 18 then, and you are not getting back in, and they don’t come back because they know that they are not going to get served you know.
Retailers reported mixed experience of minors showing interest in vaping products or attempting to buy from their stores. For some retailers it was a regular occurrence, but for others it was unusual or rare. Specialist retailers were more likely than non-specialists to mention interest in vaping products from minors:
Obviously you have to ID them first of all anyway, young people are not interested in vaping products, not at the moment.
Yes, we often get kids coming in just asking about the products and you know that they’re not old enough so we basically just have to kick them out and ask them to leave ... I mean sometimes there’s no point even asking for ID because you know they’re about 12 so we just ask them to leave.
Some retailers described incidents of parents attempting to buy vaping products for their (underage) child and described it as their role to regulate this:
It’s more common we’ll get the parents come in with their child and try to buy it themselves for the child but even then if someone comes in with someone who we believe it’s being bought just for we’ll still ID them and if they can’t provide ID we don’t serve the parent even if one of them is of age.
Several Scottish and Welsh retailers said that they used a refusals log to record attempts to buy products by those suspected to be aged <18 years. For one retailer, this included recording when a customer had been asked for ID and were able to verify that they were aged ≥18 years:
Yeah we, in both our shops we keep a log book, anybody which actually tries to purchase anything under 18, we give them the benefit of the doubt, ask for ID, if they haven’t got ID and the ones which are 18 and three-quarters, look 16, they’ve got their ID, yes that’s fine, but we write it in the book. So we keep a log of all the refusals and acceptance on that there.
Views on the Tobacco Products Directive and the principle of regulating e-cigarettes
Views on the TPD varied extensively between specialist and non-specialist retailers. Non-specialist retailers were often broadly supportive or simply unaware of its existence. Specialist retailers were often critical of the TPD and its regulations on vaping, although many recognised the importance of certain regulations, and identified aspects they saw as important:
You know we reach our peak and then they knocked us back down again. So I don’t agree with any of it, I would like to keep hold of ... like I said child lock and stuff like that. I don’t think we should eradicate small bottles completely, because some people do want the small bottles you know. I just want the TPD to go away.
Many specialist retailers acknowledged the importance of vaping being regulated, but called for vaping to have bespoke regulations, rather than regulation being aligned with tobacco:
They should be regulated one hundred per cent, all for that there, but it’s not a tobacco product, there’s actually not tobacco in it, so it’s not tobacco product, so they can’t be related to it. A hundred per cent got to be regulated, the Laws ... some are good and some are absolutely ridiculous.
Many retailers challenged the logic of e-cigarettes being included within the TPD, as although the process of vaping mimicked the process of smoking, e-cigarettes were seen as different products with completely different purposes, with some retailers highlighting a popular movement away from the use of the word ‘cigarette’ within their description:
They should be dealt with as a separate entity. They should be, they are completely different. A lot of people are moving away from using the word electronic cigarette as well.
Many retailers also expressed concern about a perceived risk that if regulated in similar ways, then vaping would be seen within public perceptions as the same as smoking, rather than as a less harmful tool for smoking cessation. Specialist retailers were often keen to avoid being labelled as tobacconists, describing their role as operating in opposition to tobacco, and distancing themselves from the stigma of smoking:
I think there needs to be separate regulations for it because I think it sort of almost wants to steamroller into it that it’s like smoking. It’s like we had directory services call us up and say would you be happy for us to put you down as a tobacconist and I was like well I’m not really comfortable with that because we don’t sell tobacco you know we don’t have the use of cigarettes or smoking and that so we don’t what that sort of stigma to be attached because that’s not what we’re about. We want people to be healthier by quitting smoking and using this as a replacement for the nicotine.
However, some non-vaping specialist retailers thought that vaping and smoking should be regulated together, with one retailer commenting that smoking and vaping were essentially the same thing:
At the end of the day you are talking, some of the lines have got nicotine in them and you are weaning yourself down on it, we all know that. But it’s exactly the same thing, it is basically six and one, and half a dozen of the other isn’t it?
Specialist retailers expressed concern that future changes in the regulations on vaping may lead to significant negative impacts, with some anxieties appearing not to be about the TPD specifically, but whether or not the TPD would act as a beginning of an escalation of regulations:
I don’t know they haven’t thought it through, I think there’s going to be more regulations soon and it’s going to mess everything up.
Say the TPD decided to change their minds tomorrow and say well double battery mods are now banned. I’m automatically breaking the law just by having this. I’ll have to get rid of loads of stock, the suppliers will have to take a massive hit. So changing rules willy nilly like that is kind of annoying ... Keep it away from kids and get people off cigarettes, it’s as simple as that.
Some specialists, although initially unhappy with the TPD, were keen to see no further changes to juices, tanks or bottles now that the regulations had been implemented. Achieving compliance was described as causing a financial burden, which would be wasted if this was reversed, particularly for smaller companies that were described as having struggled to bear additional costs of complying with regulations:
The annoying thing about it is, this regulation came from the EU, we are coming out of the EU but are they going to back track? No, and I hope they don’t because the industry has spent millions of pounds regulating all of these because each flavour has to be put through a process, so say one supplier, one brand has 10 flavours right, each flavour has to get put through this TPD process, minimum of 3000 pounds per flavour, so a lot of wee guys were wiped out.
Specialist retailers commonly expressed strong suspicion regarding the motivations that drove the inclusion of vaping in TPD. Some specialist retailers argued that there was a perception among the vaping industry that tobacco companies had a prominent role in influencing the legislation regarding vaping and that it was an attempt to sabotage the industry:
I think it’s, it seems like a lot of people thought it was like big tobacco companies influencing government to stop, well at least cutting the amount of, because in the first year, I hit like a brick and managed to get loads of people onboard, and I noticed everyone was vaping where I was living, no one was smoking anymore, and then the second all these regulations came in and made it a lot harder for people to do stuff, it died out a little bit and people went back to smoking. Now I thought it was to do with the tobacco, the reason why the rules came in...
Specialist retailers also described how, initially, tobacco companies had been opposed to vaping and influenced negative media campaigns and lobbied governments. However, this was believed to have altered over time, with tobacco companies investing in vaping products:
Tobacco companies were very against vaping to begin with. There was a lot of scaremongering that was released in the press about vaping and that was mainly from tobacco companies and stuff like that. But now some of them are on board because they realise there’s a market for them.
Some specialist retailers were also suspicious of UK and European governments and regulators and what was described by some retailers as attempts to derail the vaping industry:
In terms of regulators, I suspect there was a misunderstanding of the science, possibly some deliberate. I’m sure there’s some influence from pharmaceutical industry. I think there were some memos released which talked about the need to put regulation on a product which is a competitor to nicotine ... and really not giving many of the scientists involved in the EU who will be researching electronic cigarettes the opportunity to speak up I think. Derail the vaping industry.
Obtaining information and support for implementation of the new regulations
Knowledge of the new regulations around e-cigarettes and vaping devices in the TPD was variable between specialist and non-specialist retailers. Specialist retailers generally possessed a more comprehensive knowledge of the regulations, whereas non-specialist retailers demonstrated a much more limited understanding. In some cases, this was highlighted by the lack of distinction retailers made between regulations around tobacco control and regulations relating to vaping devices:
I appreciate that writing the TPD at the time was probably quite a tough task because, you know, they were ... they were trying to write a set of rules on an industry that was moving so quickly. By the time that it actually came to fruition, came to become statute, it ... it was so outdated it was quite hard to sort of perceive.
Int: In terms of the warnings displayed on the e-cigarette packaging, what do you think about that?
WNVS2: It’s good because it lets people know that you are still buying a tobacco product. So that takes that, it’s trendy away, there is not pictures of dragons and stuff, there are pictures of people that are ill because of tobacco.
Despite absence of a detailed knowledge, most non-specialist retailers described access to support from other knowledgeable sources where advice was needed. Retailers who worked for companies involving multiple stores described relying on guidance from within their wider organisation, whereas other retailers described having been advised about regulations by sales representatives, sometimes described as linked to tobacco companies:
There are so many regulations ... I just depend on the advice that comes in from the reps and that’s it really.
Specialist vaping retailers generally reported that they had received no official advice or support to help them implement the TPD regulations, but that they or others they worked with had actively sought information on the regulations, with a variety of sources mentioned. Some retailers said that they had obtained information from discussions within the vaping community, via online forums or events, or had spoken with other vaping retailers or suppliers:
We just knew it was coming in and the reason why we were updated was because we would attend [event] which obviously, vapers from all over the world and stuff like that and that is the only way we got informed. Because the next show was going to be TPD, so everyone was freaking out and we didn’t know what was what so we went around and got a source and we found out from other people what they had been told.
Other retailers noted that their main source of information was from within their company, with guidance handed down to stores that operated as a part of a chain. In some cases, knowledge of the regulations had been gathered from company owners who reported participating in processes related to the development of the regulations:
We’ve been involved in consultations, we’ve been to some of the parliamentary groups, we’ve read through the regulations, we discuss it in the industry and in institute groups, so it’s a multiple, gathering from multiple sources.
Some retailers mentioned that they sought information and support from government sources, including official information online and local trading standards teams. Views on the value of these information sources, where provided, were generally negative. One specialist retailer suggested that some of the language used on government websites was confusing, and had increased anxieties by making changes within the TPD regulations appear more challenging than they were in reality:
I think everybody saw it coming in as this big black cloud and little bits off the government website, reviewers and stuff like that, they were talking about it, where until it came into play, it sounded bad, it sounded like you could potentially kill the industry off completely. And then the further and further we got into it, it sort of, you go, well it wasn’t, it’s not that bad, or as you were reading something on the government website, you think about it, and you go, it didn’t actually mean what it looks like it means ... they word it so awkwardly that it confuses you after six letters into a word, it’s yeah, it was, it was panic stations...
Specialist retailers who sought information from local trading standards departments perceived that officials sometimes lacked the necessary knowledge themselves to be able to provide advice:
I thought someone would come around and tell us about it but actually the cigarettes [e-cigarettes] themselves, they were constantly changing so you just had to learn about it yourself ... they [trading standards officials] were asking us questions, ... originally I phoned trading standards in [Scottish local authority], she came out and obviously she wasn’t sure.
Perhaps as a consequence of these limited communications, retailers argued that a great deal of uncertainty remained in the period before TPD implementation:
When the TPD first came round I was going through legislation and finding things that we were never told, like the sort of things we could sell and couldn’t sell which we had on the shelves like 2 days prior that we intended to keep selling so. No one ever really came round and went look this is what you’ve got to adhere to and so it was a bit of a mess to be honest.
Uncertainties also appeared to persist for some specialist retailers in relation to what advertising and marketing of vaping products was permissible under the TPD:
Yeah, this is what you can do, so like there’s so many different rules and regulations like I can’t, it used to be but I’m not sure now, but I couldn’t display prices outside the store or on products on the shelf. I can display it on a separate sheet. I’d have to triple check that but it used to be something like that, that I couldn’t display prices outside that’s with stuff that contains nicotine. Now I think that possibly might have changed again.
Compliance and enforcement
Ensuring stock compliance with the Tobacco Products Directive
Retailers’ experiences of preparing for compliance with the new TPD regulations were mixed. Non-specialist retailers reported no issues with the process and indicated that it simply involved the removal of non-compliant stock or selling-off non-compliant stock prior to the compliance date. Several non-specialist retailers also reported receiving practical help from sales representatives, including representatives with links to tobacco companies, who visited the store and replaced non-compliant stock with compliant stock:
We had to have the new regulations on it and the company were very good about that. They actually sent their reps in to collect it and replace it before. So they just replaced it and we were never out of pocket.
One representative who reported receiving help from sales representatives noted that they had no problems selling off their non-compliant stock prior to the regulations coming into force:
Int: OK right, so were you able to sell-off that stock before the change over date?
SNVS6: Oh aye it was quite easy we just ran it down a wee bit.
Int: I was wondering if maybe the reps [representatives] were willing to take it away if you couldn’t sell it?
SNVS6: No we definitely, I am sure we got rid of it all you know.
Experience and perceptions of enforcement
In terms of enforcement of the new regulations, retailers’ experiences were, again, varied. Some retailers had received a visit from TSOs to inspect their compliance with regard to vaping products and these visits generally revealed few issues:
We’ve seen Trading Standards once or twice ... we saw them a couple of times in the first 6 months [after the cut-off date] but they were perfectly happy with what we were doing so I don’t think they bothered since.
Some non-specialist retailers and one vaping specialist who also sold other age-restricted items noted that their stores had been inspected by TSOs, but that officials had paid no special attention to the vaping products. When asked whether or not TSOs took much interest in the e-cigarettes that they were selling, the manager of a one non-specialist retailer said:
No, never, as long as we’ve got out signs up for the tobacco, I don’t think there is a lot of regulation over the e-cigs [e-cigarettes] at the moment that they have any say...
Some retailers said that they had no awareness of their store undergoing inspection. However, a few suspected that this may have happened without their knowledge. Some retailers indicated that they would prefer to have more of a supportive and open relationship with local TSOs:
The problem we have got is environmental health [sic: trading standards] don’t tell us when they have been in and gone if everything is OK ... If we pass, they don’t tell us we don’t know. So it’s only if we fail we will know. So we have had them in, we have definitely had them in because they work quite close county halls round the corner. So we know they have been in, and they haven’t bought nothing, they have been in, they have observed and gone. So I think it should be less secret service and more supportive.
Retailers stated that they were complying with the new regulations, but there was a perception among some that other retailers were operating without complying:
We welcome Trading Standards coming in, we’ve got no issues with them coming in, they can check our paperwork and what we’re selling, it’s all above board. When it comes to smaller stores that pop up and think that they can make a quick buck and they still sell thirty mil bottles under the counter and stuff like that...
Retailers also perceived that others were not complying with the new regulations in relation to advertising. For example, despite television advertising of vaping products being prohibited by the regulations, retailers perceived that e-cigarette brands, particularly those owned by tobacco companies, had found ways to advertise on television. Again, suspicion of the motives and interests of government actors was intertwined with suspicion of the role of the tobacco industry:
Yeah because a lot of the time, people think well if they’re that good, then why aren’t they advertised more, when you watch, I think X have adverts on the telly and that’s only because they’re run by I think X, so they have the money behind them, and obviously tobacco companies have the government, or whatever you want to say on their side, they always have. So they’re able to advertise their products, which every product of X that’s come through these doors, because people think that we sell it, is diabolical, it’s terrible, but again, it’s owned by a tobacco company, so they’re allowed to advertise, we’re not.
It was suggested that a lack of other retailers’ compliance resulted from a lack of enforcement, which some retailers blamed on official authorities being under-resourced and overstretched:
A lot of these shops feel like they can get away with murder. Because where’s the presence, it doesn’t feel like it’s being enforced in any way. I’m following it because I know that it’s the only way to keep the business healthy. When you start bending the rules here and there and stuff, and start, you end up on this slippery slope and before you know it you’ll be shut down because you’ve broken a huge rule here or something like that.
Perceived unintended consequences of the Tobacco Products Directive
Perceived impacts on businesses
Specialist retailers’ experiences of compliance with the new regulations focused on the sale or disposal of non-compliant stock before the implementation date. For some retails, the experience of implementation seemed largely straightforward:
We were in a good position to deal with it, like I say, we did very well, we were offering sales beforehand but since then we’re doing as well as we used to beforehand.
For other retailers, however, implementation of the new regulations was described as having had a substantial impact on stores and businesses. Several specialist retailers described selling-off non-compliant stock at a discounted price in the final weeks before the regulations came into force, with some retailers noting that this had a negative impact on their profit levels:
The last couple of weeks, up until the TPD we were running sales and they [customers] were wondering why their £10 bottle of juice was now £2.50, because we needed to get rid of it, because we can no longer sell it.
Some retailers noted that at the point of TPD implementation, they still had large amounts of stock they had been unable to sell, causing, in some cases, substantial financial loss.
One retailer also discussed a financial impact from implementing the regulations from the point of view of being a manufacturer of e-liquids. The retailer noted that they had invested a lot of money in regulating each of the liquids they sold:
I do think it should definitely be regulated of course. Which is something that maybe shops like, that don’t make their own juice they don’t have to do that, it’s more for the juice side of it. We really felt it because now we have to pay to regulate every flavour which again makes sense of course.
Specialist retailers who discussed the impact of new regulations around advertising demonstrated mixed perceptions. For some specialist retailers, the new restrictions around advertising appeared to have had very little impact on their stores or businesses because, for instance, they had previously relied on ‘word of mouth’ for promotion:
We don’t really market too much to be honest, I mean we’ve never really advertised outside the stores we’ve always gone down the route of word of mouth we do far better. So we didn’t really change anything we’ve never really advertised much.
Other retailers perceived the new regulations around advertising and marketing to have a negative impact:
Advertising is really important ... we are severely limited in advertising, which is, kind of, sucked because we want to let people know. Look you can save your health, save your money, and obviously as a business we want to grow and we want to advertise ourselves, but we just simply can’t.
Perceived impacts on smokers and young people
The TPD regulations and the possibility of future tighter restrictions were considered by many specialist retailers to reduce cessation opportunities and were likely to lead to people going back to smoking:
Well if they can make it really awkward and inconvenient for vapers to vape, we will go back to smoking cigarettes again, so if they take away all the flavours which they wanted to originally, taking away the bigger tanks that they keep talking about, they’ve taken away the stronger nicotine...
There was a perception among some retailers that there was a particular problem with compliance on the internet. The regulation of traditional sales and young people’s growing reliance on social media were seen as potentially interacting to displace sales of vaping products to minors onto the internet, where devices were likely to be cheaper but unregulated:
Young people generally access most things through social media, so as soon as they’re part of these groups it’s bang, it’s in their face all the time ... So, the availability of products through social media ... that are (a) unregulated products, and (b) become even cheaper through that is an issue, definitely. The problem that that has is there are certain parts of the ... certain parts of the market, the products could be quite dangerous if they’re not used properly.
Retailer observations
Overall, 34 retailers were observed in 2017 and 32 retailers were observed in 2018. Inter-rater reliability of 100% was observed for the presence of health warnings and tamper-proof packaging, and inter-rater reliability of 85% was observed for the presence of oversized refills at wave 1 (but this increased to 100% at wave 2). Most retailers (n = 26, 76.5%) were displaying devices with the health warning included at first observation, prior to full implementation. Observers noted that, in most cases, older non-compliant stock continued to be sold alongside devices with the health warnings. In 2017, older non-compliant stock, with no stock with the health warnings, was present in eight retail outlets, including four (19%) non-specialist shops and four (31%) specialist shops. However, by wave 2, 100% of observed retailers displayed compliant devices, and in only two cases did observers note that a minority of stock appeared to be still non-compliant. Almost half of the retailers (n = 16, 47.0%) displayed oversized refills available for sale in 2017, including nearly all (n = 12) specialist retailers and a smaller number of non-specialist retailers (n = 4). After the date of full compliance, these oversized refills were no longer observed on sale in any retailer. Most stores at both time points for whom observation was completed sold devices in tamper-proof packs, although many observers noted that it was not possible to clearly observe whether or not this was the case.
Chapter summary
Views on the role of e-cigarettes in public health were mixed, with policy stakeholders emphasising benefits for cessation, and risks for young people, varying in the relative emphasis placed on risks and benefits in deciding their position on e-cigarettes. There were few differences between nations in formal policy surrounding e-cigarettes, but nations differed in the extent to which e-cigarettes were accepted as a means for cessation that the public health community should advocate. Non-specialist retailers often had limited knowledge of e-cigarettes, or their regulation, and were sometimes unaware of the TPD. Vaping specialists, however, positioned themselves as advocates and supporters of smoking cessation, and all groups emphasised a responsibility to prevent use of e-cigarettes by young people. E-cigarette retailers emphasised that although some regulation for e-cigarettes was justified, regulating e-cigarettes as if they are tobacco products may lead to their being perceived as similar products in terms of their health risks. In common with a positioning as separate from tobacco, specialist retailers expressed antipathy towards the tobacco industry, with some specialist retailers describing suspicions that regulation of e-cigarettes had been lobbied for by the tobacco industry to harm this emerging market. However, with limited perceived communications on the requirements of the TPD, some non-specialist retailers, in particular, emphasised that their primary source of information on how to comply with the TPD came via industry actors. A perceived unintended consequence emphasised by retailers, and consistent with young people’s perceptions, was that the internet was a more common source of e-cigarette purchase than retailers, with growing sales in online black markets. Nevertheless, a high degree of compliance with TPD regulations was apparent within observations.