Neil Baylis, solicitor at K&L Gates LLP, considers the legality of “vaping” e-cigarettes in commercial vehicles, and the regulation of e-cigarettes.
E-cigarettes mimic cigarettes and provide an alternative way for smokers to receive nicotine. A battery-powered atomiser is activated, either by inhalation or a manual switch, and liquid nicotine is then heated and becomes (mainly) water vapour. E-cigarettes can be disposable (single use), rechargeable or refillable.
The main difference between conventional cigarettes and e-cigarettes is that the latter do not contain tobacco. However, like conventional cigarettes, they do contain nicotine which is a highly addictive drug (it stimulates and relaxes) and not completely harmless (it can cause anxiety and blood vessel disease). The long-term health effects of e-cigarettes are currently unknown.
In the UK it has been illegal to smoke in an enclosed or substantially enclosed public place and workplace since 1 July 2007.
UK legislation on smoking cigarettes
The Health Act 2006 bans smoking in enclosed or substantially enclosed premises, meaning premises with a roof/ceiling that are at least 50% surrounded by walls, ignoring windows, doors or other fittings that can be opened (Smoke-free (Premises and Enforcement) Regulations 2006).
The ban includes premises used by more than one person (even if the workers work at different times or intermittently) and premises where members of the public receive goods or services (even if members of the public are not always present).
HGVs and PCVs are both at least substantially enclosed. They are both premises that may be used by more than one person (eg a driver and a passenger in a cab or two taxi drivers sharing one taxi) and in passenger vehicles members of the public receive the service of being taken to their destination. It is irrelevant that the vehicle might have a driver in it only sometimes.
However, the Health Act only applies to smoking lit tobacco (eg cigarettes, pipes, cigars) or smoking other lit substances whether or not a person inhales. E-cigarettes do not involve lighting any substances and so are not prohibited under the Health Act 2006.
Specific UK legislation on work vehicles
The Health Act allows regulations to be passed to permit smoking in vehicles. However, the Smoke-free (Exemptions and Vehicles) Regulations 2007 exempt private vehicles from the ban only where the person:
owns it, or
has the right to use it, and that right is not restricted to a particular journey.
A worker may be able to smoke in a company car if he or she uses it for private use and there are no restrictions on where it can be driven.
Notably, the Children and Families Act 2014 amended the Health Act to allow regulations to prohibit smoking in private vehicles when children under 18 are present.
The Smoke-free (Exemptions and Vehicles) Regulations are consistent with the Health Act. Smoking is not allowed in enclosed vehicles used by members or a section of the public (ie public transport such as trains) or used for paid/voluntary work by more than person (eg taxis, vans).
A work vehicle is likely to be used by a driver and a passenger or may be shared by two drivers. It is irrelevant that the two people might use the vehicle at different times or intermittently. Drivers wanting to smoke during the day would have to smoke outside of the vehicle or go to a designated area by their employer that is not 50% surrounded by walls.
The Regulations do not specifically mention e-cigarettes so the position is as for the Health Act. Employers can make a company policy allowing or preventing the use of e-cigarettes and may want to consider whether it would affect the image of the company, whether it helps workers to stop smoking and whether children are present.
The Health Act requires businesses to display “no smoking” signs prominently in all smoke-free workplaces and vehicles, in the prescribed format. A business can be fined up to £2500 for not stopping people smoking in the workplace and a fixed penalty of £200 (£150 if paid within 15 days) or a fine up to £1000 for not displaying “no smoking” signs. Workers smoking in workplaces can receive a fixed penalty of £50 (£30 if paid within 15 days) or a fine of up to £200.
Note that the law may be changing and the cap for fines below £5000 may be removed if the changes are approved.
The EU Tobacco Product Directive
The EU Tobacco Product Directive entered into force in May 2014, aiming to prevent young people from starting to smoke and helping people to quit. Member States have to implement Directives into national law and have been given until 20 May 2016 to do so.
One of the reasons for this directive was the fact that there is no EU-wide approach to the manufacture, presentation, ingredients, advertising and sale of e-cigarettes.
The new rules include restrictions on the level of nicotine (20mg/ml) which must be at a consistent level, and on the size of refill containers (10ml) and cartridges (2ml). Other ingredients in the liquid must not pose a health risk, even when heated. The packaging must include information on all of the ingredients, and a health warning, and the inside leaflet must include instructions, possible adverse effects, addictiveness and toxicity.
Advertising of e-cigarettes will not be allowed. Because of the unknown health risks, there are monitoring requirements on the European Commission, Member States, manufacturers and importers.
The UK’s approach to the Tobacco Product Directive
Electronic cigarettes are currently regulated under UK general product safety regulations. This means that there are no specific standards on purity or on the contents of e-cigarettes, and nothing to prevent advertising to children.
The Tobacco Product Directive does not apply to e-cigarettes and refill containers, subject to the Code for Human Medicines Directive (Human Medicines Regulations for UK implementation) or the Medical Devices Directive (Medical Devices Regulations for the UK).
Following the publishing of the Tobacco Products Directive, it will be interesting to see what approach the Medicines and Healthcare Products Regulatory Agency (MHRA) takes when it publishes its new guidance.
As the regulator of medicines and medicinal devices in the UK, the MHRA wanted e-cigarettes to be regarded as medical devices and in many cases to require a CE mark, granted after meeting certain requirements of the Medical Devices Directive. It wanted all nicotine-containing products to be regulated as medicines so that they become safe and good-quality products to help people cut down or quit smoking. Regulation as over-the-counter medicines means that healthcare professionals can recommend e-cigarettes and they could be available in strengths greater or weaker than those required by the Tobacco Product Directive.
E-cigarette companies can advertise provided that the advertisements are not misleading, are not aimed at children or non-smokers, and state that the product is licensed to reduce nicotine intake. There are requirements on packaging and labelling and on monitoring the safety of the products.
Until the UK regulations are implemented, the MHRA wants manufacturers to voluntarily apply for a medical licence. Because nicotine’s use is “well established”, an abridged application could be used lowering the application cost and allowing the submission of published data to support safety and efficacy aspects.
Smoking restrictions when carrying dangerous goods
Under ADR rules, certain dangerous goods can be carried in road vehicles internationally between two or more contracting countries, subject to conditions on packaging and labelling and the construction, equipment and operation of the vehicle.
A new version of ADR will come into effect on 1 January 2015 (ADR 2015), although the requirements of ADR 2013 still apply until 30 June 2015, unless otherwise provided.
Under ADR 2015, the written instructions for an accident emergency situation required to be readily available in the vehicle have been amended to include that e-cigarettes or similar devices (as well as other sources of ignition such as smoking or switching on any electrical equipment) must be avoided.
ADR 2015 also states that e-cigarettes and similar devices cannot be used during handling operations in the vicinity of and inside vehicles or containers carrying fully regulated dangerous goods (ie goods that have not been packaged as Excepted or Limited Quantity packages) or Limited Quantity packages.
Carriage only in Excepted and/or Limited Quantity packages is not subject to the prohibition on e-cigarettes.
As well as smoking or using a fire or naked flame, e-cigarettes and similar devices cannot be used on vehicles carrying Class 1 goods (explosive substances and articles) in their vicinity and during the loading and unloading of these substances and articles.
Note: if the goods fall within the small load relaxations (exemptions) then the instructions in writing do not have to be carried in the vehicle, but the prohibitions on smoking (including e-cigarettes) during handling operations in the vicinity of and inside vehicles still apply.
Subject to further legislation being introduced, the use of e-cigarettes in commercial vehicles will continue to be lawful. We will publish a follow-up feature article if the law is likely to change in 2015.
Last reviewed 29 October 2014