Tobacco and Vapes Act: Regulating the Graveyard

Tobacco and Vapes Act: Regulating the Graveyard

James Dunworth

Regulation of the graveyard.

It's a term used for over-regulated markets, where red tape strangles innovation and competition and leads to price increases and inefficiency.

It seems perfect for the vaping industry, where a tsunami of regulation is slowly strangling small, legal businesses to the benefit of both the tobacco companies that have been killing their customers for generations and the now huge illicit, black market vape industry.

The Tobacco and Vapes Act 2026 is a case in point, but it's also one where there's huge confusion. I've heard retailers conflate it with the Vape Products Duty (VPD), but that's a whole separate piece of legislation.

I've also heard people assume that all of it is coming into place almost immediately, and that's also not true. In reality, many smaller vape companies won't have to deal with it - if only because they will have already been wiped out by the VPD.

As you read through the measures, keep in mind that:

  • Vaping, according to the UK Government's own research, is at least 95% less harmful than smoking. [1]
  • The biggest barrier to people switching from smoking to vaping is the wrongful impression that vaping is as harmful or more harmful than smoking. [2]

Contents

Flavours can now be banned

Ministers now have the power to ban flavours. [3] That means you could only be allowed to vape tobacco or menthol, or unflavoured e-liquid. It's also a postcode lottery - Wales, for example, might decide to ban all flavours with England taking a more liberal approach.

The word is, however, that the first move will be around what the flavours are called rather than what they taste like. Names like “Heisenberg”, “Pink Lemonade” and similar are likely to be restricted or banned, on the theory that the names are designed to appeal to kids.

Flavour ingredients are likely to be looked at later down the line, with the Department of Health considering research into the health effects of different ingredients.

Worryingly, though, the barrier to further action has now been removed, and any Secretary of State can now decide to ban flavours on a whim - and without primary legislation going through Parliament.

It's hard to object to some flavour names - such as Unicorn Juice - being banned. Going further could make it difficult for vapers to know what they are vaping. Pink lemonade, for example, has a distinctly different taste from peach lemonade or indeed simple lemonade. It would likely lead to less switching between flavours, and could make vaping less appealing for smokers.

However, a flavour ban would be far more devastating, with multiple studies showing they lead to an increase in smoking rates - see the importance of vape flavours for details.

The Government can decide what your vape will look like

The Government now has the power to regulate the: 

  • size
  • shape
  • appearance
  • branding
  • and technological features, including software,

of your vape. [4]

Initial action is likely to focus on device appearance, with other areas likely to be tackled later.

I'm sure the rationale behind this is to reduce the appeal of vapes to children, but who knows how future Governments will choose to use these powers.

Vapes hidden behind the counter

The Government can now also control how products and prices are displayed in stores. [5] While there's more consultation to come, the UK's Chief Medical Officer is reported to be very keen on vapes being hidden behind the counter.

This is particularly worrying for vape shops, with some industry sources calling it “the biggest existential threat” of the whole Act.

It's hard to see how vape shops can survive if they cannot display their products - at the very least, you'd expect a large number of vape shops to be wiped out, especially when this measure will compound harm from the Vaping Products Duty. It's also a clear signal to smokers that vapes carry the same amount of harm as cigarettes, further dissuading them from switching to vaping.

Vape free vape shops?

All the Ministers now have the ability to ban vaping in particular places. [6] Potential areas include indoor public places and indoor workplaces - which would rule out vaping in vape shops.

Again, there have been calls to carve out an exception for vape shops, but it remains to be seen whether this will be implemented.

Discounts and freebies

It will soon become a criminal offence - with a maximum penalty of up to two years' imprisonment - to give away or offer a substantial discount on a vape product, or sell it below cost. [7] That covers physical coupons, electronic coupons, loyalty rewards and discount codes, both in-store and online.

What's a substantial discount, though? And what exactly does the word “promote” mean? That won't become clear until after guidance has been published. That guidance is expected in 2027 - despite the fact the law comes into force in October 2026. [8]

One of the big problems this causes is with slow-moving stock. When retailers have old stock which no-one is buying, they typically sell it below cost to move it on - which is at least cheaper than disposing of it.

If this isn't an option, much of that old stock will end up being disposed of. That leads to the removal of low-cost options for vapers and smokers, losses for business and an increase in waste.

Nicotine limits and tank sizes

Current nicotine limits, tank sizes and bottle sizes were set by the EU in 2016. The new Act hands power over these to the Ministers in the four nations - who can now change them without having to seek Parliamentary approval first. [9]

Four nations, four rule books?

The Tobacco and Vapes Act 2026 gives the power to regulate vapes to the different Secretaries of State in England, Wales, Scotland and Northern Ireland. [10]

So potentially, you could have a situation where each devolved nation has different rules - which causes obvious problems.

For example, imagine Wales bans all flavours bar tobacco, while England follows a more liberal approach. Welsh vapers in Cardiff and Newport could easily pop over the border to stock up on their fruit vape supplies, putting their local vape shops out of business.

Internet retailers face a potential nightmare too. Potentially, they would need to separate their products into four buckets of availability depending on which country their product is sold into.

Of course, you'd hope that nation states would be too sensible to do this. But if Governments were sensible, they wouldn't have created the opportunity for this mess in the first place.

Knee jerk policy

The early days of vaping were a wonderful time. I still remember talking directly to some of our customers. One told me how they could walk up the stairs for the first time in years after switching, another how they had taken up running again.

Nowadays, if you mention you're in the vape business you get the same look as if you said you were selling cocaine to children.

But look at the facts.

  • Vaping is vastly less harmful than smoking - and that's the UK Government's assessment, not mine. [1]
  • 4.4 million people have used a vape in their attempt to quit smoking. [11]
  • Around 3 million ex-smokers in Great Britain are now vaping rather than smoking. [12]
  • Regular smoking among 11–15-year-olds in England has fallen from 10% in 2002 to just 1.2% in 2023 - belying the claim that vaping is a gateway to smoking. [13]

Yet the Government is increasingly sending a message to the public that vaping is just as bad as smoking, while putting in place rules that make it virtually impossible for small but legitimate vape businesses to compete with Big Tobacco.

(The irony is that I believe the policy is a knee-jerk reaction to the belief that vaping is harmful, rather than an evidence-based attempt to improve public health.)

It's true that while vaping is around 20 times less harmful than smoking, we don't want young people to become nicotine users. But let's remember that it's already against the law to sell vapes to under-18s.

The problem with young people vaping has been caused by the black market - people and businesses who don't follow the law - and the lack of enforcement around it. Trying to solve a problem caused by breaking the law by creating more laws won't work. If anything, it will create greater opportunity and reduced competition for illegal businesses and criminals. (For more on this, see UK vape bans: what, when and why.)

Meanwhile, for both those legal vape businesses, and, sadly, for many smokers now too scared to switch to electronic cigarettes, the formerly vibrant and innovative world of vaping will become a graveyard. But at least it will be a regulated graveyard.

References

Note: “TVA 2026” is the Tobacco and Vapes Act 2026 (c.18); section links go to legislation.gov.uk. Statistics are drawn from Action on Smoking and Health (a public health charity that campaigned for the Act) and from Public Health England / OHID; their stance is noted where relevant.

[1] Public Health England, E-cigarettes around 95% less harmful than tobacco estimates landmark review (2015); the “at least 95%” wording was added in PHE's 2018 evidence review. PHE's functions have since passed to the Office for Health Improvement and Disparities (OHID).
[2] Action on Smoking and Health (public health charity, campaigned for the Act), Use of vapes (e-cigarettes) among adults in Great Britain (2024). On the role of harm misperceptions as a barrier to switching.
[3] TVA 2026, s.96 (contents and flavour), which gives the Secretary of State power to restrict or ban flavours.
[4] TVA 2026, s.94 (retail packaging) and s.95 (features of products).
[5] TVA 2026, s.13 (displays of products or prices). Powers exist to restrict how products and prices are displayed in shops; the specific rules are still to be set through consultation.
[6] TVA 2026, Part 7 (smoke-free, vape-free and heated-tobacco-free places).
[7] TVA 2026, s.15 (free distribution and discount of products). The maximum penalty of up to two years' imprisonment applies on conviction on indictment (s.15(4)); a summary conviction carries a lower maximum.
[8] TVA 2026, s.176 (commencement); the free distribution and discount offence takes effect on 29 October 2026, while the detailed Government guidance on what counts as a “substantial” discount is still to be published.
[9] TVA 2026, s.106 (treatment of the 2016 Regulations). The 2016 limits (20mg/ml nicotine cap, 2ml tank, 10ml bottle) can now be amended through secondary legislation under the Act.
[10] TVA 2026, full contents; the sale and distribution provisions are territorial (Part 1 England and Wales, Part 2 Scotland, Part 3 Northern Ireland), and UK-wide Part 5 product rules require the consent of devolved ministers under s.115.
[11] Action on Smoking and Health, Use of vapes (e-cigarettes) among adults in Great Britain (2024), p.5: a quarter (25%) of all ex-smokers say they used a vape in their last quit attempt, amounting to 4.4 million people (Great Britain).
[12] Action on Smoking and Health, Use of vapes (e-cigarettes) among adults in Great Britain (2024): of the 5.6 million current vapers in Great Britain, around 3 million (53%) are ex-smokers.
[13] Action on Smoking and Health, Young People and Smoking factsheet (March 2025), drawing on NHS England, Smoking, Drinking and Drug Use Among Young People in England, 2023. Regular smoking among 11–15-year-olds in England: 10% (2002), 1.2% (2023). England only.

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