Is electronic cigarette smoking legal in public places UK?

[Oliver]

England and Wales

The legislation that prohibits smoking in public places in England and Wales is contained within Chapter 1 of the Health Act 2006.

The act of smoking is defined as:

(a) “smoking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and

(b) smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.

In other words, only substances that are "smoking" are provided against.

Smoking and smoke are not vague terms.

They refer to the emissions of airborne gases and particulates given off when a material undergoes combustion or pyrolysis (from Wikipedia - and I checked it with a family friend who is a professor of chemistry at a London university - he says it is perfect, better than he could have come up with).

The vaporization that takes place does not combust the material (an exothermic chemical reaction between a fuel and an oxidant), nor does cause pyrolysis (the chemical decomposition of organic materials by heating in the absence of oxygen).

An electronic cigarette cannot be said to contain tobacco, since tobacco is the name given to both the plant and the plant material derived from the fresh leaves of plants in the genus Nicotiana.

Nicotine in solution is not provided against in the legislation.

Therefore the electronic cigarette is perfectly legal to use in any public place in England and Wales.


The Scottish Act (Smoking, Health and Social Care (Scotland) Act 2005 ) is a little bit more vague, from Part 1, chapter 4:

In this Part, “smoke” means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.

The adjective "lit" clearly refers to the state of combustion, and I don't think anyone could convincingly argue against that.

Therefore the electronic cigarette is perfectly legal in to use in any public place in Scotland.

 

[brendajorsler]

Thank you for your email of the 19th August about electronic cigarettes and smoking in public places.
The smoke-free legislation requires all enclosed or substantially enclosed work places and public places to be smoke-free. Under the legislation, 'smoking' includes being in possession of anything lit that contains tobacco.
Electronic cigarettes appear to be borderline products when considering compliance with the smoke-free law. They heat nicotine inserts using a microchip charging device, and therefore technically they are not 'lit'. However, most of these products seem to contain traces of tobacco and they emit a vapour that is designed to appear to be smoke. It is the Department's/ our understanding that the vapour is created at a high temperature, similar to that at which some substances burn. The Department has identified at least a dozen different brands of electronic cigarettes. All are different in composition and emissions.
The Department is currently obtaining information on ingredients and emissions of e-cigarettes from manufacturers and importers. Until the Department has an understanding of whether the products are lit and whether the product or the vapour contains tobacco, it is unfortunately not in a position to advise on whether electronic cigarettes comply with the Department's smoke-free legislation. No such products have been approved for sale in the UK. The Department cannot say that such products could be used in areas which are smoke-free under the law.
I hope this email clarifies the Department of Health’s current position on this matter.
Yours sincerely,

Ronald Le Bruin
Department of Health

 

[clavit]

Hi Brenda, and welcome to the forum.
Is this a response to a question YOU have asked? Can we see the original e-mail please?
It seems to me that Dept of Health would prefer to outlaw e-smoking, but have no reason to do so. They're working frantically to find a way to ban e-cigs, but don't really know how (yet).
Also, it is claimed that "no such products have been approved for sale in the UK". Do these products even require approval? If they haven't been approved, how come we have UK sellers who seem to be selling e-cigs without any problems?

 

[locha]

Thats good to know, all of that. But even after reading what exactly smoking ban refers to i do believe that e cigs will be banned. There's no amount of fun that couldnt be banned by this goverment (or any goverment rly...). Also, i can see it in my minds eye, anti smoking lobby, how them will get red hot pis*ed when they'll start to notice that.
(now there is a part of my post that i had to cut out because its not allright to make fun of them poor anti smoke people and saying that if they only could get laid they might find something more interesting to do, besides i dont know, maybe its not allowed on this forum and i could get banned, and i dont want that; so no rants here, even tho they rightly deserve it).

 

[brendajorsler]

Dawn Primarolo

Please could you advise me if the electronic cigarette can be used in public places.

I would appreciate a straight yes/no answer.

As the definition of smoking is:
Part 1 of the Act means to smoke tobacco or any other substance or mixture which can be smoked. This subsection further clarifies that a person is to be taken as smoking if the person holds or is otherwise in possession or control of lit tobacco or any other lit substance or mixture which can be smoked.

As the electronic is designed as a smoking cessation device and is not 'lit' nor contain tobacco, what is the 'LAW' on this device that uses the same principal as an asthma pump and delivers vapour to the user.

Thank you

 

[clavit]

Thanks!
That was quite a yes/no answer you got in return ;-)
It seems clear to me that the official position is "we would like to say no, but we can't".

 

[TropicalBob]

It seems clear to me that the official position is "we would like to say no, but we can't".

Reading the rest of it, I'm afraid it's more like, "We would like to say no, but we can't at the moment. We're now preparing reasons for the ban we will impose and the exact wording that will outlaw nicotine-vaporizing devices."

 

[dc2k08]

It is a bit like that bob your right..
smokey, i know you posted this ages ago, but can you remember if there was a seperate ruling for NI at all?

 

[katink]

In the Netherlands, with a government certainly also looking for ways to either ban e-cigs or to get more then their share of money out of them... they have been forced to admit, the e-cigarettes do not fall under the anti-smoking laws; so they are allowed to be used in all places where smoking is prohibited. Of course, their next sentence hurriedly added is: 'but of course all premise-owners and owners of public places are allowed to forbid their use by making a house-rule to that nature; it is though up to the individual owners to do so or not'.

I would think that the english situation would in essence be the same... so it is legal to use unless house-rules come in otherwise...

 

[Oliver]

ooooh, well from memory there is different legislation in NI but I can't for the life of me remember what it is.

However, I think the foundation is the same - e-cigs don't produce smoke and therefore are not covered by any smokefree legislation.

I guess the question in the UK is: Will the government bother to make an amendment to the original act - further, do statutory instruments exist that allow changes to be made by the department of health?

Seems to me that under the existing law it makes no difference even if they could prove that the emissions from e-cigs are substantively similar to cigarette smoke.

The wording of the act is quite clear - we are talking about the product of the process of combustion, a process that does not take place in e-cigs.

I'm fairly sure the wording of the act would have to be changed. A process that will take a while, unless there are statutory instruments that allow it to be changed. If there are, it could happen overnight.

Alternatively, things could get a bit fiddly:

It is the Department's/ our understanding that the vapour is created at a high temperature, similar to that at which some substances burn...

In other words, if it can be shown that any of the compounds contained in e-liquid undergo combustion and there are tobacco-derived compounds present, this will be used to define the user as a smoker.

Stretching the definition, if you ask me, but probably technically correct.

The obvious answer to this is to produce a product that operates at a standardised temperature and liquid that contains only ingredients that do not oxidize at this temperature.

This may prove to be impossible with the current "ceramic-oven" type e-cigs and may require a re-think on the part of the manufacturers.

 

[Spider]

I hope this email clarifies the Department of Health’s current position on this matter.

It does if their position is 'maybe'.

Surely the department of health should be more concerned with the effect that e-smoking may have on the user or those around them when deciding whether it should be classified as smoking or not, rather than focusing on technicalities.

Maybe e-smoking will become one of those things that the government decides is technically banned but they 'turn a blind eye' to it legally.

Spider

 

[TheEmperorOfIceCream]

ah yes, what my US buddy calls 'diaper talk'. The sole point of it is to cover one's ......

 

[icemanmaz]

I have found that if you cover the end of the e-cig and use it like a pipe no one would even know that it was more than a pen I have used mine in loads of places and not one single remark

 

[deewal]

I have found that if you cover the end of the e-cig and use it like a pipe no one would even know that it was more than a pen I have used mine in loads of places and not one single remark

Hi icemanmaz
Could you elaborate a bit more on that. How do you cover the end and how does the vapour become invisible ?

 

[dc2k08]

yeah, i dont get many stares with the penstyle either. deewal, you can hold the smoke in and it all but disappears. with the throw-away cigar though, i get stares just by having it in my hand.

 

[Ruby]

Reading the rest of it, I'm afraid it's more like, "We would like to say no, but we can't at the moment. We're now preparing reasons for the ban we will impose and the exact wording that will outlaw nicotine-vaporizing devices."

My thoughts exactly Bob. I'm not feeling like a happy bunny about that response - can see the anti e-cig campaign coming. Plus, there is big revenue in smokers taxes and I wonder sometimes if actually really really the government would like us all to quit or worse transfer our addictions to something relatively non profitable for them.

Not sure the patch manufacturers and other suchlikes are going to be taking this sort of competition lying down either. There is a nicorette 'pen' one can draw on - it is just a useless thing, mine is still lurking somewhere in a drawer. No vapour at all. Think I bought mine at boots. I don't recall there being any fuss about using that publically. It was also inhaled. So what is their fuss?

Makes one realise one's got to be careful about wording here on every level. Vaping is better than smoking. E-vape is probably better than e-cig even though it undoubtedly won't sell as well. It's all 'scuse the weak pun, smoke & mirrors.

It's early days for us and I think we must think on our arguments and work hard to pave the way for the future. Else we might not have a future of vaping to enjoy freely & we are going to end up shivering in the cold outside restaurants etc all over again - a new breed of leper.
Suffer the thought.

 

[brendajorsler]

"In 1997, local government came together and created the Local Government Association to be its voice"
The LGA was the U.K. organisation mainly responsible for the smoking ban as they recommended to the Government that a partial ban would not work and that ALL public premises should have a smoking ban.

Recent quote from the LGA:

"Smoke free public places will only become a reality if the regulations are clearly understood by both the public and businesses alike. It is pleasing to see the Government has avoided introducing any costly or confusing exemptions that would have made it extremely difficult to make this legislation work. Local authorities must now be given sufficient resources to enforce the ban and make it a success."

So as these people seem to be 'au fait' with the laws of the Government I thought that as the Health Minister did not know if the e-cig was o.k. to use in public places, I would ask them.

This is the latest reply from the Dept. of Health (Dawn Primarolo's office)

"Thank you for your further email to the Department of Health regarding electronic cigarettes.

I am sorry, but I cannot add anything else to the two replies I have sent to you already. The Department cannot say that such products could be used in areas which are smoke-free under the law."
Yours sincerely,
Ron Le Bruin

I emailed the LGA:
Am I liable to prosecution if I use my electronic vapour device (that looks like a cigarette) but contains no tobacco or is not lit, in an enclosed public place.


This is the wondefully grammatically incorrect answer that I received from the LGA

.Thank you

Your email has been received, but the LGA would not be able to advised
you as your enquiry does not come with in its remit. Your local trading
standards, local authority, police station or health, citizen advice
bureau and safety executive might be able to help?

Best Regards
C Murray
LGconnect

P Save Paper - Do you really need to print this e-mail?

Sorry for the long post !!
Brenda
.

 

[Ruby]

My only worry is if we keep drawing their attention to it - they'll start finding ways to stop us.

But for now I'll take both responses as 'they don't know' and haven't passed any laws yet - so we won't/can't be prosecuted.

We might get warned off somewhere like in a restaurant, but that'll be the sum of it.

I want bars & restaurants to accept this device longerterm because the more who do the stronger the argument will be if the authorities start to play nanny again. So I'll be sure to chat to owners before I do have an after dinner vape out of politeness.

And if they say 'no' I'll try to convince them.

And if they still say no - they won't get my custom again.

 

[sandrajean1955]

Yes - If we keep bringing it to their attention they will find a way to ban it. After all the tobacco companies wont be happy till they're banned and the big pharmaceuticals will lobby to kill it off completely. They stand to lose too much dosh. They'll withdraw donations to whatever political party they support so the Government will go hell for leather to ban them. On the other hand it should be brought to the Governments attention because a decision will have to be made. People cannot be accused of breaking a law if it does not exist. People cannot be asked to stop using the e-... if there is no law against it. I think it will be very difficult for the Government to ban the use of them, at least for many years to come. On what grounds can they ban them - because they contain nicotine? So do Nicorettes. They do not contain tobacco and they are not lit therefore they are not illegal as far as the Health & Safety Act is concerned. I think the smokers of this country should be made more aware of these cigarettes and the advantages of them. If the Government tries to ban them there would be a lot more people against the ban than there would be at the moment. The peoples argument could then be "you want us to stop smoking but you dont want us to use something that could, in effect, help us to do it - because the tobacco co's and the pharms have you in their pockets". The Government are on a sticky wicket, in my opinion, on this one.

 

[TropicalBob]

Thoroughly read this topic, Law and the E-Cigarette, and you'll understand what will be argued in proposing a ban on these. Public opinion will NOT side with smokers trying to quit using devices that resemble cigarettes, cigars or pipes. Not a chance. E-smokers will be told to use what is already approved, not to try an end run on anti-smoking mandates.

And, in Florida where I live, men walk around shoeless and shirtless some times. No law against that. It's just practical fashion addressing the problems of tropical heat.

Then the men see a sign on the restaurant door: No shoes, no shirt, no service. The signs are everywhere. And, yes, that is legal and the shoeless, shirtless men are not allowed inside to even order a beer.

In the absence of specifically restrictive law, business owners can set their own rules. So e-smokers can still be tossed without official government disapproval. Our task is persuade businesses not to do that, to see profits from allowing e-smokers inside.

Don't get pushy. Don't demand your "rights". Always be pleasant and persuasive, remembering that nothing has the power of the promise of greater profit.