Selling E-cigarettes in the UK and EU

The online sales of e-cigarettes have been regulated throughout the EU this year. Since May, e-cigarettes may not be advertised online, on the radio or on television. The EU tobacco directive left the option of restricting the online sales of e-cigarettes to the Member States. Alternatively, they were free to introduce a registration scheme. The UK went for the registration scheme.

E-cigarettes in the UK

The EU directive was implemented into UK law by the Tobacco and Related Products Regulations 2016. Most of its regulations came into effect on 20 May 2016. The aim is to lower smoking among youth.

Producers of e-cigarettes must submit information about their products to the Medicines and Healthcare products Regulatory Agency, which is the competent authority for the notification scheme.

A producer is anyone manufacturing or importing e-cigarettes or rebranding such products as their own. Online retailers are not producers if they only resell the goods.

Categorisation

The new rules regulate e-cigarettes that contain up to 20 mg/ml. Zero-nicotine e-cigarettes are not impacted by the regulations.

E-cigarettes containing more than 20 mg/ml need to be licensed by the Medicines and Healthcare products Regulatory Agency. They are treated as medicines and therefore may be advertised. However, celebrities may not endorse them, nor may their advertisement be addressed to minors.

Cross-border sales of e-cigarettes

Shutterstock/Maren Winter

Reg. 47 requires UK retailers who want to sell e-cigarettes via their online shop to a consumer in another Member State to register with the Secretary of State as well as the competent authority of any EEA state in which the consumer is located. When you trade with consumers in Germany, this means that you will have to register with the Secretary of State and the German authorities.

Only after having received confirmation from all relevant authorities, is cross-border distance sales of e-cigarettes permitted. The Secretary of State will confirm registration within 20 working days after the completion of the registration form and the submission of all relevant documents.

The Secretary of State holds a public register of all registered retailers.

Restrictions in other countries

Be aware that not all EU Member States permit the cross-border online sales of e-cigarettes. Poland and Austria have prohibited the online sales of e-cigarettes.

Italy does not allow cross-border online sales, meaning that UK retailers cannot sell to Italian customers.

In Spain, there is currently a proposal that forbids the online sales and the cross-border sales of e-cigarettes.

As of now, it is still unclear whether any amendments will be made to the proposal and when the regulations will enter into force in Spain.

For the time being, selling e-cigarettes to Spain is allowed. If you target the Spanish market, keep up to date with the regulations to be informed once the sale is possibly going to be forbidden.

Consultation

CAP and BCAP launched consultations on the new rules and on the advertising of e-cigarettes. As per the Tobacco Regulations, e-cigarettes, which are not licensed as medicine, may not be advertised in some media channels.

The consultations provided information on:

• how the CAP Code can best reflect the legal prohibitions so that ASA can enforce them

• their proposal for guidance

• their proposal relating to the acceptability of advertisements for e-cigarette retailers, which do not feature products

• whether the content rules put in place in 2014 remain proportionate

For tailored legal advice for the UK and numerous other European markets, we recommend reaching out to our partner law firm, FÖHLISCH Rechtsanwälte. If your online shop is based in Germany or Poland, you can explore the Trusted Shops Legal Products site, where you can get further guidance on e-commerce legal topics.