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Guest blog from Rhydian Mann, NNA Associate and Welsh Campaign Manager at Vapers in Power  

For all of you out there who know what my day job, is this piece won’t surprise you at all. For those who followed the development of the Tobacco Products Directive (TPD) 2014 into the UK’s transposed version, the Tobacco and Related Products Regulations (TRPR) 2016, this piece will be even less of a surprise.

For everyone else, well, this could be both an education and a shock!

Today, as part of my job, I met with two local Trading Standards Officers( aka TSO’s) in Swansea to discuss some of the“finer” points of TRPR compliance. Sorry, I can’t divulge the actual outcome because I could get fired BUT here are some of the knowledge bombs that came out of it:

1 Local Trading Standards have had no training in TRPR enforcement.
Yes, you read that right. I bluntly asked one of the TSOs if they have had any training or guidance on what to look for regarding compliant and non-compliant packaging for e-liquids. One of the senior TSOs said they have not received anything from the Chartered Trading Standards Institute, the body which provides training for TSOs across the country in any consumer product or consumer service provided to the public. I even rang the CTSI, earlier in the week, to see if they have any enforcement guidance and the best they could do was to pass my inquiry onto someone that specialises in “TOBACCO CONTROL”

This is a very scary thought indeed! This indicates that local TSO’s, when visiting an e-liquid manufacturer or a vape shop, are relying on the text of the TRPR itself and their own interpretation of it. Are the MHRA (the so called “competent authority”) and the Department of Health saying “just get on with it” to local council Trading Standards departments?

2 Do you need a microscope with that?
Anyone who has been hunting for TPD compliant e-liquid products may have seen some bottles labels in miniscule writing! Are some manufacturers crazy? How can any consumer use a product safely when the lettering is even smaller than this:
 
THIS IS ACTUALLY REALLY SMALL!!!
 
I have seen some labelling text as small as 2pt, made tiny so the manufacturer can squeeze in all the silly required information. Sadly, not everyone is able to see easily and according regulations, including CLP 2008 (Article 31) and Weights & Measures Regs 2006 it should be labelled in a font size that does not result in the “loss of legibility to the consumer.” So retailers, if you ask your customers “can you see the writing on this label/box” and the answer is “No!” then check with your local Trading Standards and your supplier. This could be an issue.
 

3 Interpretation = Confused.com
It’s been hard for manufacturers and retailers to get their heads around what the TRPR actually means. TSOs are probably going to have the same issue. As there is no guidance for enforcers, it is very likely that they will use the “Labelling”/”Product Presentation” requirements from Sections 37 and 38 of the TRPR as a checklist along with their interpretation.

I sense that term “harmonised enforcement” is a very comical thought. To put it bluntly, each local council TSO can have a different understanding of any line of the TRPR and hence enforce it differently. Here is an example of what I mean:

“(2) The unit packet and any container pack of the electronic cigarette or refill container may not include any element or feature falling within paragraph (3).

(3) An element or feature falls within this paragraph if it—
(d) resembles a food or a cosmetic product; or…”

This line has already seen some enforcement in some areas of the UK, resulting in some products being seized. You might remember this photo being passed around social media last month:

TradingStandards Edited

Now this is where manufacturers have become confused. Does this mean that a bottle or box can’t look like something you’d find in a supermarket cereal aisle or like a bottle of your favourite perfume? More than likely! OR Does it mean that you can’t have a graphic of an apple to show that your e-liquid is apple flavoured? Who knows!

Actually this line crosses over with an existing piece of legislation known as The Food Imitations (Safety) Regulations 1989. This basically says that no product should look like (amongst other things) foodstuffs because it would be “likely to cause persons, in particular, children to confuse them with food.” So based on that line, having an apple, a marshmallow, a donut on your product packaging should not result in that product being seized by TSO’s. Yet the photo above suggests otherwise...

This a perfect example of where interpretation between different local TS can cause massive issues. Take my employer who supplies across the country: Swansea TS could give our packaging a thumbs up but a TSO in York, or anywhere else for that matter, could give the products a thumbs down. So how can this situation be avoided?

4 Let your Local Trading Standards handle it
Provided that you’ve followed the guidance from your own local TSOs on packaging, (mainly because the MHRA guidance is a smidge contradictory with the TRPR itself) continue to work with them. There is an agreement between a manufacturer or retailer and the local Trading Standards department under what is known as “Primary Authority”. This has a statutory basis and if your own trading standards gives a thumbs up but another doesn’t then the discussion on the possible non-compliance is held between the two different local Trading Standards departments. Another bonus is that, depending on the Trading Standards, you might have a dedicated TSO that will deal with your company. This is not a free service but I am sure that it will offer some solace amongst all the other stresses.

I hope for the sake of vapers in the UK that manufacturers AND retailers strike up a conversation with TSO’s and continue to talk to each other. I am sure that all vapers would love to see their favourite brands and flavours in shops. I am also sure that vaping businesses want to see their brands flourish as much as possible in what has now become some sort of level playing field. The only way that EVERYONE can be made happy is to work together to get through this.

Finally, remember that Trading Standards Officers are not just “spoil sports” or “clouds of doom” who remove non-compliant or dangerous items from sale but they can also be your “right hand man” or “right hand woman” for advice.