Brexit, Vaping and TPD - what happens next?

Brexit, Vaping and TPD - what happens next?

James Pawley

The country has voted for Brexit. What will this mean for vapers and what impact will it have on TPD?

 UPDATE: 15th November 2018

The Draft Withdrawal Agreement, published yesterday, and the subject of a parliamentary statement later this morning, includes a number of laws which would remain in place under a transitional arrangement for Brexit.  In other words, if Teresa May manages to get her agreement approved, these are the laws which will stay in place.

Among them is the Tobacco Products Directive.  The short-term implications are that under a transitional agreement TPD in its current form must stay in place. (Annex 5(47) of the Draft Agreement).  

Much of the controversy around the draft agreement has been to do with what happens if it is extended.  In this case, the UK and EU must agree "mutually" to bring it to an end.  Some say this could leave us subject to EU regulations, including TPD, for a very long time to come.  Given how dynamic the situation is, and given that Mrs May is about to deliver a parliamentary statement, it is not clear what will happen next.  We will further update as and when the situation becomes clearer.

Original post: 22nd March 2018

Let's face it, before today, it was not entirely clear what the end result of the Tobacco Products Directive 2 (TPD) would have been for making DIY e-liquid. As far as we knew, the only DIY product which would be affected was liquid nicotine, but no conclusive official advice had been issued, with different bodies telling me different things. And now we have voted for Brexit. What will this mean for DIY e-liquid, and vaping more generally?

For now, very little will change

The 'Brexit' vote signals a decision by a majority of British voters to leave. David Cameron stated clearly this morning that the current government would respect this decision. However, this might not mean any discernible change for some time. The formal process of Britain leaving the EU will not begin until the British Government triggers the process laid out in Article 10 of the Lisbon treaty. That would start a leaving process which would begin with two years of negotiations before the mechanisms for leaving were triggered. However, the leading Tories in the Brexit camp had said that if successful in the referendum, they intended to have a protracted formal negotiation with the 27 other EU member states before invoking Article 50. If, as seems likely, a leading Tory Brexiteer were to replace Cameron as Prime Minister, there is a possibility of a lengthy interlude before Article 50 is invoked. As such, according to Chris Grayling, the leader of the House of Commons, we might expect to leave the EU by the end of 2019. This means that potentially, between now and then, life for most of us will go on very much as before.

What about TPD?

For vaping, perhaps the biggest question begged by the vote for Brexit is the future juridical status of 'TPD,' the piece of EU legislation which will severely restrict the range of e-liquids and tanks available. The Brexit vote raises several possibilities: (1) The legislation will be allowed to stand and will be enforced. It is perfectly plausible to suggest that TPD will be viewed by the authorities as a deed done, and that they will enforce it in exactly the same way as they would have done had the referendum gone the other way. The only significant difference would be that the possibility would exist for our parliament to legislate to amend or repeal the law at a later date. (2) The legislation will be repealed There is a possibility that an amount of EU legislation might simply be removed by statute. However, there are reasons for thinking this unlikely. Since most of the TPD is concerned not with vaping, but with tobacco products, and further that much of it creates a situation vis a vis tobacco with which the government would be perfectly happy, it is likely that repeal would happen only as part of a wider broad brush negation of a body of EU legislation. Since such an action would cause immense difficulties in negotiating trading agreements with the EU, it must be highly unlikely. (3) Only the parts affecting vaping will be binned Given opposition to the parts of TPD dealing with electronic cigarettes among the electorate and among members of the Commons and Lords, we might be entitled to hope that common sense would prevail, and the law amended to nullify the parts of TPD treating electronic cigarettes and e-liquid. There must be a possibility that eventually this might happen. It is however, likely, that the mechanism for this would be new legislation to replace the provisions of the TPD treating e-cigs. The contents of any such legislation is a major unknown. In addition, we must face the reality that given the quantity of legal changes which leaving the EU will involve, the provisions of TPD regarding vaping are likely to be some way down the list of governmental priorities, and as such are unlikely to be dealt with any time soon. (4) The legislation will stand but will not be enforced Given the amount of government business likely to be generated by the process of leaving the EU, there must be some likelihood that no government department will have the time, energy or will to take steps to ensure that the provisions of TPD affecting vaping will be enforced, especially if the government is minded to change the legislation at a future point when parliamentary time is available to do so. Should this happen, it will be important to monitor closely any statements of intent from the government. A long period between a statement of intent and a legislative change would be potentially very unhelpful to law-abiding vapers.

How else will vapers be affected?

Uncertainty in the currency markets could have an effect on the supply and/or price of e-liquid imported from outside the UK. If the pound is weak, it becomes more expensive to import e-liquid. In addition, when Britain does leave the EU, it is possible that import prices will be affected by re-negotiated trade agreements.

An optimistic future?

The vaping industry in Britain has, until the repercussions of TPD, been thriving. Whatever the future holds, our elected politicians will no longer be able to tell us we must abide by idiotic decisions made by the EU which they are powerless to change. The number of vapers in Britain (estimated at 2.8 million) would have been more than enough to decide the referendum had we voted en bloc. Similarly, we are a numerous enough group to decide the outcome of parliamentary elections in a very large number of constituencies. We must ensure our MPs - elected to serve us - understand our feelings about vaping and how it should or should not be regulated. It might seem a relatively insignificant issue in the light of other repercussions of the referendum, but when vaping is back on the political agenda, we must ensure our representatives at Westminster do in fact represent our interests, and are not unduly influenced by the tobacco and drug companies.