14/01/2017
The rise of e-cigarettes, often referred to as 'vaping', has presented a new set of considerations for workplace regulations, particularly within the transport sector. As an alternative to traditional smoking, e-cigarettes mimic the act of smoking by heating a liquid nicotine solution, which is then inhaled as vapour. While they do not contain tobacco, they do deliver nicotine, a substance known for its addictive properties and potential health implications. This article delves into the legality of using e-cigarettes in commercial vehicles in the UK, examining existing legislation and potential future developments.
The Legal Landscape: Smoking Bans and E-cigarettes
In the United Kingdom, a comprehensive ban on smoking in enclosed or substantially enclosed public places and workplaces came into effect on 1st July 2007, stemming from the Health Act 2006. This legislation prohibits smoking in premises with a roof/ceiling that are at least 50% surrounded by walls, irrespective of openings like windows or doors. Crucially, this ban extends to workplaces used by more than one person, even if intermittently, and to premises where the public receives goods or services. Commercial vehicles, such as HGVs and PCVs, are generally considered to be substantially enclosed and often fall under these definitions, especially when used by multiple individuals or for public transport.
However, the Health Act 2006 specifically targets the smoking of lit tobacco or other lit substances. E-cigarettes, by their nature, do not involve the combustion of any material. Therefore, they are not explicitly prohibited under the Health Act 2006 concerning smoking bans in general workplaces.
Specific Regulations for Work Vehicles
While the Health Act 2006 does not directly prohibit e-cigarette use, the Smoke-free (Exemptions and Vehicles) Regulations 2007 provide further clarity on vehicles. These regulations exempt private vehicles from the smoking ban under specific conditions, primarily if the individual owns or has an unrestricted right to use the vehicle. Importantly, the Children and Families Act 2014 amended the Health Act to prohibit smoking in private vehicles where children under 18 are present.
For commercial and work vehicles, the situation is more stringent. The Regulations state that smoking is not permitted in enclosed vehicles used by members of the public (e.g., public transport) or used for paid or voluntary work by more than one person. This category clearly includes taxis, vans, and other shared work vehicles. The rationale is that these vehicles are often used by a driver and a passenger, or shared by multiple drivers, even if their use is intermittent.
Therefore, while the Health Act 2006 does not ban e-cigarettes, the broader regulations concerning smoking in work vehicles, particularly those used by multiple individuals or the public, suggest that e-cigarette use could be restricted by extension, or by employer policy. Drivers requiring a nicotine break during their workday would typically need to do so outside of the vehicle or in a designated smoking area that complies with the 50% wall rule.
Employer Policies and Image
Employers have the prerogative to implement company policies regarding e-cigarette use. When formulating such policies, businesses may consider several factors:
- Company Image: The perception of vaping within the company and by its customers.
- Employee Health and Well-being: Whether allowing e-cigarettes aids employees in quitting traditional smoking or if it promotes continued nicotine dependency.
- Workplace Environment: The presence of children or vulnerable individuals in vehicles.
- Legal Compliance: Ensuring adherence to all relevant smoking and vaping regulations.
Penalties for Non-Compliance
Businesses are legally obligated to display 'no smoking' signs prominently in all smoke-free workplaces and vehicles. Failure to comply can result in significant penalties. For instance, a business can be fined up to £2,500 for not preventing smoking in the workplace. Fines for not displaying 'no smoking' signs can be a fixed penalty of £200 (reduced if paid promptly) or a fine of up to £1,000. Individuals caught smoking in workplaces may face a fixed penalty of £50 or a fine of up to £200. It is important to note that legislation is subject to change, and fine limits could be revised.
The EU Tobacco Product Directive and UK Implementation
The EU Tobacco Product Directive (TPD), which came into force in May 2014, aims to regulate e-cigarettes across member states. Key provisions include restrictions on nicotine concentration (20mg/ml), refill container size (10ml), and cartridge size (2ml). The directive also mandates ingredient disclosure, health warnings, and instructions for use, while prohibiting advertising. Member states were given until May 2016 to implement these rules into national law.
In the UK, e-cigarettes were initially regulated under general product safety regulations. The Medicines and Healthcare Products Regulatory Agency (MHRA) has been considering regulating e-cigarettes as either medical devices (requiring a CE mark) or over-the-counter medicines. Regulation as medicines would allow healthcare professionals to recommend them and offer greater flexibility in nicotine strengths. It would also impose stricter advertising rules, labelling requirements, and safety monitoring.
The TPD's implementation in the UK will bring a more harmonised approach to e-cigarette standards, potentially impacting their availability and marketing. It is anticipated that specific guidance from the MHRA will clarify the regulatory status and requirements for e-cigarettes and related products.
E-cigarettes and Dangerous Goods Carriage (ADR)
For vehicles carrying dangerous goods, additional restrictions apply under the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR). The ADR 2015 regulations, which came into effect on 1st January 2015, include specific provisions regarding e-cigarettes and similar devices.
ADR 2015 mandates that e-cigarettes and other potential sources of ignition must be avoided in written accident emergency instructions carried within vehicles. More significantly, e-cigarettes are prohibited during handling operations in the vicinity of and inside vehicles or containers carrying fully regulated dangerous goods or Limited Quantity packages. This prohibition also extends to vehicles carrying Class 1 goods (explosive substances and articles) and during the loading and unloading of such materials.
It is important to note that if goods fall under small load relaxations or exemptions, the requirement to carry written instructions may be waived. However, the prohibitions on smoking, including the use of e-cigarettes, during handling operations still apply.
Summary Table: E-cigarette Legality in Commercial Vehicles
| Scenario | Health Act 2006 | Smoke-free (Exemptions & Vehicles) Regs 2007 | ADR (Dangerous Goods) | Likely Position |
|---|---|---|---|---|
| E-cigarette use in a private car with no children | Not explicitly banned | Exempt if owned/unrestricted use | N/A | Permitted (subject to employer policy) |
| E-cigarette use in a private car with under 18s | Not explicitly banned | Prohibited | N/A | Illegal |
| E-cigarette use in a taxi (shared by drivers) | Not explicitly banned | Prohibited (used for paid work by more than one person) | N/A | Prohibited (subject to employer policy) |
| E-cigarette use in an HGV (shared cab) | Not explicitly banned | Prohibited (used for paid work by more than one person) | N/A | Prohibited (subject to employer policy) |
| E-cigarette use when handling dangerous goods | Not applicable | Not applicable | Prohibited during handling operations | Prohibited |
Frequently Asked Questions (FAQs)
1. Is vaping e-cigarettes illegal in all commercial vehicles in the UK?
No, it is not universally illegal under the primary smoking legislation. However, it is prohibited in vehicles used for paid work by more than one person and in private vehicles carrying children under 18. Employer policies can also prohibit vaping.
2. Can I vape in a taxi?
Generally, no. Taxis are considered vehicles used for paid work by more than one person (if shared) and for public transport. While not explicitly banned by the Health Act 2006, it is likely prohibited by regulations and employer policies.
3. What are the potential health risks of e-cigarettes?
The long-term health effects of e-cigarettes are still largely unknown. Nicotine itself is addictive and can cause anxiety and affect blood vessels. The effects of inhaling heated e-liquid ingredients are not fully understood.
4. Do I have to display a 'no vaping' sign?
While 'no smoking' signs are mandatory, there is no explicit legal requirement for 'no vaping' signs for e-cigarettes under current legislation, unless specific employer policy dictates it. However, given the restrictions in work vehicles, clarity through signage is advisable.
5. How will the Tobacco Product Directive affect e-cigarette use in vehicles?
The TPD will introduce standardised regulations on nicotine content, packaging, and advertising. While it doesn't directly address vehicle use, it aims to ensure product safety, which could indirectly influence how e-cigarettes are perceived and regulated in various settings, including workplaces.
In conclusion, while the direct prohibition of e-cigarette use in commercial vehicles is not as explicit as for traditional smoking under the Health Act 2006, the combination of regulations concerning work vehicles, public transport, and specific industry standards like ADR, along with the discretion of employers, creates a landscape where vaping in commercial vehicles is often restricted or prohibited. Drivers and operators should remain informed about current legislation and company policies to ensure compliance.
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