September 2016

TPD Regulations Continue to Rock EU Vapor Market

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By Ian Jones

The summer of 2016 has been a rollercoaster few weeks for vapers in the UK and Europe. Despite fierce opposition, the Tobacco Products Directive (TPD) began to be implemented in May, forcing vendors across Europe to adhere to numerous restrictions on the sale of vape gear and e-juice. Then in June, the British public voted to leave the EU, leading some observers to wonder if this could exclude the UK from these regulations. We spoke to various vape businesses in the UK and Europe, both big and small, to find out how it has affected them so far, and how they see the future of the vaping industry.

What Is TPD?

The TPD is a series of rules that place restrictions on the manufacture and sale of of tobacco and related products. In 2014 e-cigarettes were added to the list of products covered, under Article 20. This means all countries in the European Union (EU) have to regulate vape-related products in the same way as tobacco, similar to the deeming laws in America. Each EU member state can place further restrictions, but they all have to comply with the central rules of Article 20. Some of the restrictions include e-liquid to be sold in bottles no larger than 10ml, a maximum of 20mg/ml of nicotine, a ban on advertising and a ban on the sale of variable wattage/variable voltage devices.

Although Article 20 began to be implemented in May 2016, some countries adopted the ‘grandfather clause’ which means the regulations are phased in, to help vape businesses transition smoothly. The UK implementation has allowed for two grandfather dates. One allowing current products to be made up to Nov 2016, and the other allowing them to be sold through to May 2017.

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What Impact Has TPD Had?

Chefs Vapours are one of the biggest e-liquid and concentrates stockists in Europe, and were forced to make drastic changes in the wake of these regulations. “We decided to split our company in two to protect us from losing our business,” says Rhiannon, a spokesperson for Chefs Vapours. “We now have a food flavourings website which sells everything that does not contain nicotine, and a vaping website which sells everything that does contain nicotine.” The new flavourings website means this branch of their business will be safe by the time the laws are fully enforced. However, the ban on advertising has had an unexpected effect. “We have also had to stop advertising any vape related products but this has not affected business for us. We are improving in sales month to month.”

Tristan runs UK-based vape business Spiritus Vapes, and while he believes the grandfather dates were helpful, he has concerns for the future. “We’re a reseller of US products and realistically, most of them are going to exit the EU market rather than go through TPD registration.” Echoing the worries of many people in the vape industry, he says “As it stands we’re ok but May 21st 2017 will see almost every product we have on our site disappear overnight.”

Hing Wong runs the Cigtronica vape shop in Manchester, England. “In practical terms we will be reducing the number of items we will be selling, mainly the less popular flavour and strength combinations.” Despite this, he is less concerned about the other regulations relating to marketing, packaging and age restrictions. “There is little or no change as we have already adopted a responsible approach in these areas.”

Paul Willemsen is the CEO of Hisvape, a well-respected vape business based in Germany. He points out that while most vape businesses could survive the TPD legislation, the real danger comes from the ability of individual countries to impose further rules and regulations. “First they initiate the TPD, which most vapers could live with. But TPD leaves freedom for national governments to install even stricter regulations. Now there are countries which forbid online sales like Austria. There are plans to forbid most of the aromas, other than tobacco. Also there are big taxes raised in several countries, like for example in Slovenia, who are adding 4 EUR per 10ml.”

An opposing view comes from an unexpected source. Hon Lik, commonly regarded as the inventor of the modern e-cigarette, said in a recent interview that he believes vaping regulations will have a positive impact as they will increase public confidence in vaping and improve the quality of vape gear. However, it should be noted that Hon currently works for the Blu cigalike brand, which, due to their design, will be one of the least-affected by these regulations. Even so, Hon admits that these regulations may place restrictions on innovation in the vaping world.

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What About Brexit?

In June 2016, the British public voted in a referendum and made the shock decision to leave the EU. Some vapers see this as a way to block the TPD regulations. “This may change things as far as TPD is concerned, as we may not have to take on the same laws as the EU,” say Chefs Vapours, but they admit with everything happening so quickly there are no firm facts about what could actually happen.

Realistically, it doesn’t look promising. As it stands, Britain is still part of the EU and will be for at least two years, while exit negotiations are ongoing. The new vaping regulations will be implemented long before the UK leaves the EU, and while the laws can be changed afterwards, by that time the new rules will be in full effect.

Tristan agrees. “With public pressure and science on our side we’ll see things change, but the damage is already done. The onerous testing and reporting is here and will likely stay in one shape or another. The days of it being a cottage industry are gone.”

Paul Willemsen also believes that leaving Europe would not help, other than a protest vote. “Leaving the EU will not help our business in any way. The only way to show this group of corrupt politicians in Brussels that we are no longer interested in how they deal with us, is to leave the EU. But it would be a big fall back.”

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How Does TPD Compare to the FDA Deeming Regulations?

While things look gloomy for European vapers, they measure up well next to the stringent restrictions placed on American vapers. Spiritus Vapes CEO Tristan describes the FDA deeming rules as ‘mind-boggling’ in comparison. “With TPD, we’ve ended up with something that’s at least workable. Looking at the deeming regs I just don’t see how any company could possibly hope to make it through to the other side.”

Paul Willemsen sees the FDA’s deeming regulations as a sign of things to come. “It will not take long for the EU to take the same steps.” He points out that America and Germany are two of the major backers of the pharmaceutical industry, suggesting that their financial investment in tobacco-based products is behind the government crackdown on vaping.

Conclusion

It is clear that 2017 will see the European vaping industry undergo dramatic upheaval. Small businesses will be unable to afford the increased costs, and while delayed implementation has helped in the short-term it looks likely that only the biggest companies will survive the upcoming upheaval.

Even so, the TPD regulations are mild compared to the draconian restrictions being passed in America. “The deeming regulations are definitely worse,” says Hing Wong. “The federal agencies have taken a purist, almost ideological rather than pragmatic, approach to the issue.”

However, it is unlikely that vapers will take this lying down. After trying a sub-ohm vape, who would want to revert back to a cigalike? In all likelihood, the DIY scene will experience a boom as flavouring concentrates are largely unaffected, and seasoned vapers will take to illegally-importing their vape equipment from a country with fewer restrictions, such as China. It seems inevitable that the vaping regulations will lead to an increase in vaping goods on the black market, with much less quality control than we have now. This will put consumers at a much greater risk, clearly defeating the point of these regulations.