17th May 2018

Fake e-liquids: a troubling confection

By JTS Staff
Journal of Trading Standards' in-house team

Since October 1, 2015, it has been illegal to sell e-cigarettes or e-liquids to those under the age of 18 in the UK. However, the rapid growth in the popularity of e-cigarettes and vaping over the past few years has given birth to a wave of new products which appear to be marketed specifically to children and young consumers.

Many of them are sold in packaging intended to mimic that of popular confectionery products, and some even have names similar to those of well-known brands.

Take, for example, ‘Snanckers’ a product clearly designed to emulate the packaging of Snickers chocolate bars; ‘Krusty Kreme’, which co-opts the branding of Krispy Kreme donuts; and ‘Wagnum’, which is a little too close for comfort in both its name and logo to Magnum ice cream.

Aside from the obvious intellectual property implications of this, there are serious concerns around health and safety – while e-cigarettes are generally seen as a safer alternative to traditional tobacco products, many questions remain as to their long-term health risks. And the composition of certain e-liquids – specifically those sold illegally through disreputable websites and by unscrupulous retailers – is potentially hazardous to public health.

In the US, the Food & Drug Administration (FDA) has recently cracked down on deceptive e-liquid packaging, sending warning letters to manufacturers, distributors and retailers. Products of particular concern include ‘Juice Box’, which could easily be confused by a child – or, indeed, an adult – for a carton of fruit juice.

Many such products are available to buy online in the UK and some have even made it onto the shelves of UK retailers – indeed, last year trading standards issued a forced recall of ‘Juice Box’ following the raid of a Nottingham retailer.

A recent study in the US found that between 2012 and 2015, the annual exposure rate to e-liquids per 100,000 children increased by almost 1,400%. This number has declined since then, most likely due to the mandatory introduction of child-proof packaging – similar legislation came into force in the UK in May 2017.

Trading standards officers should remain vigilant and seek to enforce warnings and fines where applicable. Those caught selling e-cigarette products to minors can be issued with a £50 fixed penalty notice or fined up to £2,500, while the sale of e-liquids that resemble confectionery products is an offence under The Food Imitations (Safety) Regulations 1989, which stipulate that:

4. No person shall supply, offer to supply, agree to supply, expose for supply or possess for supply any manufactured goods which are ordinarily intended for private use and are not food but which–
(a) have a form, odour, colour, appearance, packaging, labelling, volume or size which is likely to cause persons, in particular, children to confuse them with food and in consequence to place them in their mouths or suck them or swallow them

Encouraging progress has been made in reducing sales of vaping products to minors; last year a CTSI report highlighted the decline in underage sales of e-cigarettes in the wake of a national test purchase operation.

But the relatively new threat of e-liquids being presented as confectionery products highlights the dangers of complacency, and is evidence that certain manufacturers and retailers have few qualms about their products falling into the hands of vulnerable consumers, particularly children.

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