Applying these provisions to short-fills leads to the following relevant factors:
Short-fills are widely advertised for use with separate nicotine shots. Since consumers look
to use separate nicotine shots with a short-fill, this cannot be ignored when considering
the safety of short-fills.
While there are no standards applying to short-fills there are standards applying to usual
e-cigarette liquid which are relevant i.e. TPD and TRPR being “safety codes of good
practice in the sector concerned”.
The “reasonable expectations of consumers” would indicate that the standards for
the usual e-cigarette liquids should be applied even for short-fills.
Since the state-of-the-art technology easily allow the application of the standards
for the usual e-cigarette liquids to be applied even for short-fills, that further
indicates that they should be applied.
The only mitigating factor is that the nicotine shots are themselves a
regulated tobacco product. Nevertheless, the bulk of these factors
point towards the appliance of a high standard for e-cigarette liquids
even for short-fills.
ENFORCEMENT
Of course, the primary obligations to apply these standards
is that of the producer of the product. In European
law, this will be the manufacturer, or where the
manufacturer is outside the EU, the manufacturer’s
representative. Where the manufacturer fails
to appoint a representative, the importer becomes
responsible as if it were the producer. The producer
commits a criminal offence where it places an unsafe
product on the market.
However, the distributor must not sell or advertise for
sale a product which he knows or ought to have known
is not a safe product. A distributor would be well advised
to seek assurances from the manufacturer on these issues.
The legislation is backed up by criminal law. Both a company
and individual directors can suffer criminal penalties. The current
maximum penalty is a fine of up to £20,000 and imprisonment for up
to three months. The only defence available is that of due diligence.
This applies only where the company or person who is prosecuted can
show that he or she took all reasonable steps and exercised all due diligence
to avoid committing the offence.
CONCLUSIONS
The popular conception that short-fills are unregulated is false. Since short-fills
are not directly covered by any specific EU legislation, such as the TPD, their safety
is governed by the GPSR. That requires a consideration of how they are advertised
as well as the standards expected by consumers and the standards applicable to
other products in the sector. These factors indicate that those affected by the legislation,
including manufacturers and distributors should have regard to the TPD, even though it
only applies directly to products which actually contain tobacco.
ABOUT THE AUTHOR
Dai Davis is a solicitor and chartered engineer. Having been national head of Information
Technology law at Eversheds, Dai is now a partner in his own practice, Percy Crow Davis
& Co. Dai is a familiar with standards, being the convenor of International Electro-technical
Committee TC56 - Legal Advisory Working Group (IEC TC56 being the organisation which
is responsible for drafting international maintainability and dependability standards). He
has specialised in Product Safety, Information Technology and Intellectual Property law
for three decades and can be contacted at [email protected]
Short-fill e-liquids must comply with the GPSR 2005. Get your liquids tested, reviewed and listed today
with ADACT. For more information contact ADACT Medical on +44 1302 98 60 88 or email
[email protected] or see www.adactmedical.com
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