Spying – Snooping and Sneaky Tricks to Enforce the TPD
Snooping busy-bodies and anti-terrorism surveillance laws are just part of the tools Trading Standards officers may be using to enforce the TPD which comes into law later this month.
The Tobacco Products Directive – [TPD] is the EU’s draconian legislation seemingly only introduced to curb the growing popularity of e-cigarettes and vaping as a sure fire way to quit smoking.
Despite the industry self-regulating perfectly well over the last decade or so the EU felt the need to heavily legislate both vaping devices and e-liquids.
You can read more about the TPD and the impact it will have on your vaping choices via our article: The TPD What Does it All Mean?.
Under the new laws which come into force on May 20th – your local ‘bricks and mortar’ vape shop will be unable to – among other things – stock any tanks over 2ml or sell any e-liquid in bottles over 10ml.
Add to that a whole new ‘grey area’ around cross European border sales on the internet – and you don’t have to be a genius to see buyers turning to Chinese online superstores to buy their over 2ml tanks and other vaping gear.
This will undoubtedly impact jobs and could shut down local vaping businesses as vapers turn to the wider internet to buy their devices and e-liquids.
Enforcement Will Be ‘Intelligence Led’
I say ‘wider internet’ because the key ‘grey area’ here is the farcical and unclear laws that will forbid a European based vape store from selling restricted vape products to other EU country’s consumers online.
I’m using the term ‘grey area’ because after speaking to both my local Trading Standards office – which I’ll cover in full later – and the CTSI – Chartered Trading Standards Institute – neither organization would give me a specific answer on internet enforcement.
Indeed even when I pushed both organizations on this serious matter – the ‘stock answer’ seems to be vague if a little sinister:
Our enforcement work in this area is presently intelligence led.
This answer was repeated verbatim each time I asked – and yes whilst I understand they’re hardly going to tell us HOW they plan to monitor online EU vaping sales my question was a simple one – ‘will you be monitoring online sales in the UK?’
And given my local Trading Standards office said they were planning to work closely with e-cigarette businesses [more on that later] to help them ‘comply’ with the TPD – the fact they haven’t ‘assisted or consulted’ any online vape shops I’ve spoken to says it all really.
As for assisting local e-cigarette shops I’ll show you later how my local Trading Standards officers did that resulting in what they call a ‘sting operation’ and a court case.
As a former journalist I have banged heads with all levels of Government – Councils and council departments and one thing I always kept at the front of my mind is they work for us.
And therefore it naturally follows they should report to us exactly what they’re doing or planning to do.
Who Are the Vape Police?
Remember the vape police are in effect Trading Standards officers.
And they really do have some pretty far reaching powers.
To find out more about what they can and can’t do check the CTSI Statutory Powers document and remember forearmed is forewarned!
The officers are employed by the council with the actual council staff answering to our Local Councillors who are elected!
As you can see from that simple way of putting things – no matter how high powered council employees think they are – they still answer to the elected Councillors – therefore US!
I could go into all the ‘lawful rebellion’ type things we could do and say when dealing with officialdom – particularly when it comes to local councils – but maybe here isn’t the place.
Remember Pounds Ounces and Yards?
I can see similarities with the TPD and the barmy ‘enforcement’ of the EU’s decision to take away the UK’s old imperial measurements – stones – ounces – yards etc – and turn us ‘metric’.
For those of you not old enough to remember here in the UK we didn’t operate in kilograms and metres – we had ounces – pounds and yards.
However when the joined the EU [or common market as it was known] back in 1973 we as a country were ‘obliged’ to switch to metric measurements – there are some ins and outs – but that’s basically it.
Cue businesses across the UK refusing to switch and Trading Standards officers together with the police literally breaking into businesses and arresting the owners – resulting in numerous court cases to fight the enforced changes.
I’m going a little off topic maybe – however it was a fledgling political party – UKIP – that decided to fight for the rights of shopkeepers in particular to use ‘pounds and ounces’ should they wish to.
What I’m trying to say is I wonder if there’s a political party with the balls to stand up for vape shop owners ‘rights’ and allow them to sell any size tank or e-liquid bottle they want?
Answers in comments please!
Vape Prosecutions – What to Expect
OK and sorry for the slight detour but you know what I’m like by now.
So before I show you the three interviews I did let’s look at how my local Trading Standards department are ‘working’ alongside vape businesses in their jurisdiction.
Note that last word – jurisdiction – from what I was told by the CTSI it is going to be up to individual Trading Standard offices across the country as to how the police the TPD.
In other words some might think it worthy of investing a ton of time and manpower – whilst others might sit around waiting for the ‘anti vape hotline’ red phone to ring.
We [meaning they] just don’t know!
I live in Warwickshire so let’s look at how local Trading Standards officers ‘assisted’ a vape seller in a town about 25 miles away from me.
Here’s the county council’s case:
In March 2016, acting on intelligence, Trading Standards Officers asked a 15 year old child volunteer to attempt to purchase a bottle of ‘Mr Smoke Cherry Apple’ e-liquid containing 1.8% nicotine from a Nuneaton market stall.
OK let’s stop right there.
‘Acting on intelligence.’
I think we can assume that a ‘snooper’ tut tutted their way to making the call that a child was allowed to buy e-liquid.
It was only AFTER this incident and some 5months later that Trading Standards visited the market stallholder and advised her of the law.
Yes of course she should have known – and maybe asked for ID – but it’s hardly the crime of the century.
Are You 25?
What’s interesting here is that Trading Standards officers advised her about the Challenge 25 scheme.
This is yet another ridiculous piece of legislation that advises shopkeepers to literally challenge anyone who buys alcohol if ‘they look under 25’.
Hey correct me if I’m wrong but isn’t the legal age to buy alcohol in the UK 18?
And come to that how can they use one law to advise on another?
And hang on second – when you see that in the follow up ‘sting operation’ you’ll see the ‘child’ used was 16.
Pretty sneaky if you ask me given it was legal for a 16-year-old to buy cigarettes up to 2008 and a little bit of research would show e-liquid is way way less harmful – but I digress.
A couple of weeks after they’d ‘advised’ the seller they were back:
At the end of that month Trading Standards Officers again visited the stall and a 16 year old child volunteer successfully purchased a bottle of ‘V Juice Cloud Chasing Purple Rain’ e-liquid containing 0.6% of nicotine.
Following this second sale to a child, Warwickshire Trading Standards decided to take a prosecution against the trader.
The lady in question was prosecuted and given a 6 month conditional discharge – ordered to pay £200 prosecution costs and a £20 Victim surcharge.
Woah a ‘victim surcharge?’
I’ve covered umpteen court cases and that’s a new one on me – and hang on who’s the victim here?
According to Wikipedia :
In the legal system of England and Wales, the victim surcharge is a penalty applied to people convicted of offences, in addition to a conditional discharge, a fine, a community- or custodial sentence, in order to provide compensation for the victims of crime.
Am I reading that right?
Trading Standards groom a 16-year-old girl into buying e-liquid and the person who sold it to her has to pay her £20 because she’s a victim?
Well that’s a better rate than a paper round.
And I know this is a daft question – but if it is illegal to buy e-liquid aged 16 aren’t Trading Standards complicit in the ‘crime’ by using her in the first place?
I’m no lawyer but I’m pretty sure in America that’s called ‘entrapment’ – maybe we need something similar in the UK.
You do have to feel for the lady in question who told the press on the day in question her assistant hadn’t turned up for work – she herself was feeling ill and given it was such a busy day on the stall she simply had ‘more to do’.
In other words she was running her own business in order to make enough to pay council tax and God knows what else – she was rushed off her feet and was too busy to notice.
I know who the real victim is here and I have no doubt we’ll be seeing many many more of these types of ‘sting operations’ post May 20th.
After the prosecution Warwickshire Trading Standards said:
Whilst e-cigarettes and vaping equipment may benefit adults attempting to quit smoking, these products, which contain the highly addictive drug nicotine, are not designed for use by children.
This prosecution was the result of a wider e-cigarette and vaping enforcement exercise providing advice and guidance to retailers.
I would urge all Warwickshire retailers selling age restricted products to operate Challenge 25 and approach Trading Standards if they require further help or advice.
Given we don’t swear on here very often I’ll leave you to leave a comment as to your thoughts on that statement!
Anti Terrorist Laws to be Used Against Vapers?
OK back to the vape police and how they may be using anti-terrorism legislation to enforce the TPD and trust me your local council has probably used the law at some point over the last few years.
Known as the ‘Snoopers Charter’ the Regulation of Investigatory Powers Act – or RIPA – gives local authorities unbelievable powers.
For instance it’s perfectly legal for them to gather evidence via bugging devices – hidden cameras – private detectives and even opening mail – yeah including #vapemail lol!
If you think that won’t apply to vape shops – then think again.
Local councils have loosely used the law to check up on dog-shit – barking dogs – fly tipping – local journalists [Hello!] and even feeding pigeons!
So where does the vape angle come in I hear you say?
OK Wolverhampton council is on record as using the RIPA legislation and all the snooping that entails to ‘check on the sale of dangerous toys’.
In other words that would be Trading Standards proven to be using the RIPA legislation [snoopers charter] to make prosecutions – remember when the ‘term’ council is used in the majority of consumer based investigations they really mean the local Trading Standards department.
Look if they’ve done it once they’ll be doing it again so I advise all vape shop owners to check for bugging devices every day and beware of any surveillance cameras suddenly turned towards their premises!
Oh yeah and beware hoards of children wandering in asking for 8ml tanks too.
It doesn’t end there either.
Spying on Facebook Vapers?
Let’s talk about social media and in particular Facebook where A LOT of vape business is done.
A Scottish council – that would be Trading Standards Scotland – was trying to use RIPA to create fake Facebook profiles in order to snoop on ‘targets’ – meaning members of the public.
A spokesman for East Lothian council said:
Although East Lothian Council has never used covert identities for social media as part as an investigation, and is highly unlikely to do so, a policy must be put in place to include all eventualities even if they are not used.
Umm if you break that down what its saying is we ain’t doing it yet but if we need to we shall do.
That’s our pre-crime thought police right there and that’s a slippery slope.
Look, given the mainstream media’s seemingly intense dislike of all thing vape and e-cigarette how long is it going to be before we start getting a flood anti vaping stories forcing Trading Standards to act?
Vaping is well and truly in the cross hairs with the TPD the bullet and social media is a fertile hunting ground.
OK let’s now look at the three interviews I’ve conducted with my local Trading Standards office and the Chartered Trading Standards Institute.
Remember each local authority on a county level will decide what resources to put into policing vaping businesses with no overall organization policing the internet.
I’ll print them in full so there’s no misunderstanding.
Chartered Trading Standards Institute
About: CTSI represents trading standards professionals working in the UK and overseas – in local authorities, business and consumer sectors and central government.
CTSI exists to:
- promote and protect the success of a modern vibrant economy, and
- safeguard the health, safety and wellbeing of citizens by enhancing the professionalism of its members.
Q & A With CTSI and TPD
Do you have a policy regarding enforcement of the TPD?
Regulatory activity is undertaken by local Trading Standards Services ( in local councils ), so CTSI does not have a “policy” as such regarding compliance / enforcement activity. CTSI does however seek to advise colleagues regarding proportionate activity .
Have your officers been briefed or trained in the implementation of the TPD?
CTSI does not “have officers” ( see above ), it is a professional membership organisation .
However , Trading Standards officers have received training.
Will you have designated officers monitoring online sales?
This is a matter for local Trading standards services to determine where they allocate resources.
What are the consequences of an individual or company breaking the rules around TPD?
A breach of the regulations may result in a financial penalty or custodial sentence being imposed by a court .
However, taking legal action is seen as a last resort and efforts will first be made to bring a business into compliance.
OK and like I said earlier the CTSI were ‘helpful’ but I’d say cagey and none committal.
Q & A with Warwickshire Trading Standards and TPD Enforcement
They are a hard bunch to track down!
However I was able to get through to them via the county council press office and I’d like to thank Paul for his patience and help.
The first set of questions were basic however the follow up questions got a bit more into the nitty gritty and looked at how important Trading Standards in my area were taking enforcement of the TPD:
Q1: What training has trading standards officers received regarding TPD?
A1: Trading Standards Officers have access to the legislation and guidance necessary to carry out their duties.
Q2: At what cost? Has the Government assisted via extra funding or information?
A2: No additional cost.
Q3: Has Trading Standards liaised with vape shops to explain the new legislation?
A3: Warwickshire Trading Standards has carried out some intelligence led enforcement activities (see below) that included providing guidance to sellers of vaping related products
Q4: Are you planning extensive monitoring for none compliance or relying on reports from the public?
A4: Our enforcement work in this area is presently intelligence led.
Q5: Are you planning to monitor web sites based in the UK for infringements of the legislation?
A5: Our enforcement work in this area is presently intelligence led.
Q6: What extra costs will policing the TPD mean for this area?
Q6: Work is prioritized based upon existing resources.
Q8: What are the stages for prosecution of none compliance of the TPD and the penalties?
A7: Warwickshire Trading Standards recently took two successful prosecutions against traders for selling vaping e-liquid products to children:
These involved carrying out a test purchase by a young volunteer and follow-up warnings and guidance as appropriate and further test purchases.
Please refer to our enforcement policy for further guidance:
How Trading Standards Will Prioritize TPD Enforcement
OK all very clear and apparently enforcing the TPD isn’t putting any extra strain on the already hard-pressed and apparently cash-strapped department.
However according to the the Warwickshire Police Commissioner’s website that’s a different story:
Consumer protection issues are very fast moving, with new areas of loss or harm to consumers sometimes emerging overnight.
In order to make the best use of limited resources, trading standards services have to wait for intelligence to build on a particular issue in their local area before they can take action.
It is essential that consumers report their concerns to the Citizens Advice Consumer Service so that crucial intelligence can reach trading standards.
With staff numbers falling and budgets continuing to shrink, trading standards officers are prioritizing those issues where there is greatest evidence of harm.
That last sentence is extremely interesting:
“With staff numbers falling and budgets continuing to shrink, trading standards officers are prioritizing those issues where there is greatest evidence of harm.”
Just wondering here if the TPD ‘training’ has looked at what – if any – evidence of harm there may be in 4 ml tanks or 100ml bottles of e-liquid?
Or come to that vaping in general – please leave your answers in the comments below.
Again we’re getting that phrase ‘intelligence led’.
Either they plan to bug local vape shops – send in the undercover kid squad [who will be paid by the ‘criminal’ who sold them some e-liquid via the court’s quite disgraceful ‘Victim Surcharge’] – or wait for a nosey parker do-gooder to ring the vape police hotline to report that a 10ml bottle of e-liquid actually had 10.5mls in it.
This is vaping for goodness sake!
Vaping saves lives!
Yet it is now carrying the possibility of it becoming a criminal offence and is firmly in the sights of the court system and no doubt will become a cash cow of outrageous fines and even imprisonment – a shocking state of affairs.
OK I’m off my soapbox for a moment.
Onto the follow up interview with Warwickshire Trading Standards.
Part Two of the Q & A with Warwickshire Trading Standards and TPD Enforcement
Can members of the public be prosecuted if they purchase none TPD compliant vaping products over the internet?
No, as long as the person is not attempting to import/purchase anything that is illegal (for example illegal drugs).
The legalisation you mention, The Tobacco and Related Products Regulations 2016 is largely directed at persons acting in the course of trade or business.
Do you have an exact penalty tariff?
The Tobacco and Related Products Regulations 2016 Penalties
A person guilty of an offence under these Regulations is liable —
(a) on summary conviction—
(i) in England and Wales to imprisonment for a term not exceeding three months, or a fine or both, or
(ii) in Scotland, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both;
(iii) in Northern Ireland, to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both; or
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years, or a fine, or both.
How ‘vigorously’ do Warwickshire Trading Standards plan to police this legislation?
We believe that prevention is better than cure and that our role involves actively working with business to advise on and assist with compliance.
We will nevertheless take firm action against negligent, persistent or deliberate non-compliance.
We use an intelligence-led approach to target our limited resources to the areas that most require our attention.
Enforcement actions are prioritized in accordance with the criteria listed in our enforcement policy.
Has Trading Standards advised vape shops and websites on the new legislation?
I refer you to my previous email.
As to ‘intelligence’ gathering this I assume will mean sample buys and reports from the public?
We gather intelligence from a wide range of sources to assist us to direct our enforcement work. We may test purchase products if it was felt necessary.
There you have it.
It’s OK for consumers to purchase none TPD compliant products over the internet from EU based online stores.
However the store will be running the risk of prosecution if any of the ‘intelligence led’ systems in local Trading Standard department’s flag up those sales.
I wanted to go into the so what if the site is hosted in the US and so is the stock type scenario but given to get this info took ‘a while’ I didn’t bother as I’m sure they’d find a way to prosecute that!
One thing I did notice was in the UK you could get 3 months in jail for selling restricted vape products however in Scotland that rises to 12 months – a little unfair but hey so is the TPD as a whole.
After looking at this issue for quite some time things are a little clearer as to how the TPD legislation is going to be policed.
It boils down to the ‘luck of the draw’ if I’m brutally honest.
In other words it will be down to the Trading Standards departments policy and of course resources in your local area as to how much action will be taken.
Given the swathe of cuts local governments has faced this past few years and given as we’ve seen they are underfunded and understaffed – they seem to be on the side of reactive rather than proactive.
They want US to report to THEM any infringement of the TPD – it’s that simple.
They say they plan to liaise with local bricks and mortar vape businesses but as we’ve seen they’re quick to prosecute.
However the internet remains more than a bit of a grey area to say the least.
As I said in an earlier piece the losers here will be both the millions of EU vapers and the vast numbers of EU based online vaping stores.
Let’s face it, the vaping industry is Chinese led from manufacturing to sales on huge bargain sites such as Heaven’s Gifts and Gear Best.
It is those companies that will benefit as more and more EU based vape shops lose sales due to the TPD and in turn face bankruptcy and catastrophic job losses.
How Can Vapers Fight Back?
So what can we do?
Individually we can’t do much – however we can join forces and groups such as Vapers in Power and the New Nicotine Alliance are a first step to banding together with a common goal – good riddance to the TPD.
Remember what my local office said:
…trading standards officers are prioritizing those issues where there is greatest evidence of harm.
The weight of scientific evidence shows that vaping is NOT an issue where there is the greatest evidence of harm – far from it.
Of course in an ideal world the Brexit negotiations would include removal of the TPD from our statutes – and don’t get me started on the argument its’ not important enough.
In the UK alone we’re looking at hundreds of thousands of deaths through tobacco related illnesses over the next few decades – let alone the cost to the NHS.
It IS an important issue and it’s about time our political parties realized that and did something about it – which incidentally is a topic I’m planning to cover very soon.
OK I’ve gone on a little too long as per usual – but I hope it’s shown you as a consumer or business owner what’s at stake as May 20th draws closer.
Back on my soapbox for a second and wouldn’t it be great if as one all the vape shops online and on the streets of the UK stuck two fingers up to the TPD and sold what the hell they liked?!
I’m sure the 3million or so vapers in the UK would be happy enough to chip in a few quid to pay their fines – get me the old political activist!