The popularity of E-cigarettes (a plastic cigarette look-alike, delivering a nicotine shot) is growing rapidly, with an estimated 1.3 million people in the UK now “vaping”. Whilst they emitting a vapour rather than smoke and are not covered by the smoking ban, it is clear that they can unsettle customers in a bar or restaurant seeing them in use, and may lead some to believe that smoking real cigarettes in the venue is acceptable.

Whilst they are not thought to be harmful to those around them (and can assist smokers in giving up cigarettes), operators may like to consider formalising a policy over their use.

Use of E-cigarettes in public places

Smoking is defined as “tobacco and other substances in a lit form which are capable of being smoked”. As they are not lit, E-Cigarettes (which are not thought to be harmful to those around) are not covered by the smoking ban. It is therefore legal to use an E-cigarette in a public place including a pub, cafe, restaurant or hotel.  In the absence of a legal restriction however, it is open to you as the operator to create your own policy on the use of E-cigarettes on your premises, and you are strongly encouraged to do this.

Interesting, RyanAir and many train operators have banned the use of E-cigarettes on their planes and trains, as have JD Wetherspoon and Mitchells & Butler in their premises – believing that it is too difficult and time consuming for staff to differentiate between smokers and vapers.  The mood amongst restaurateurs seems to be the same, based on the fact that most diners prefer a smoke-free environment.

What are the issues?

The BMA has called for the smoking ban to be extended to cover E-cigarettes because in its view vaping normalises something that looks like smoking.  Other campaigners are concerned that E-cigarettes are currently under-regulated and can be sold to children – which may be a trigger to them starting to smoke.

From 2016 E-cigarettes will be better regulated in this country as they will be classed as “medicines”, meaning that they can be prescribed to assist people who wish to quit smoking.  This tighter regulation will also help ensure that the product is safe both for use, and for those around the user.

Consider your options

You need to weigh up the pros and cons of allowing E-cigarettes for your business.  You could: •Ban E-cigarettes, like cigarettes, and permit customers to vape in your outdoor smoking area only.  This risks putting those who are trying to stop smoking outside with the very product they are trying to give up.

  • Allow vaping inside, hoping to boost trade.
  • Ban E-cigarettes from public areas, but set up a separate indoor or outdoor vaping area.

Put it in writing Whatever you decide is right for your business, you should have a written policy and make sure that all staff are aware of it.  Publicise your policy to customers in order that difficult incidents can be avoided.  It is also important to keep the policy under review, listen to customer comments and to be aware of how other operators are dealing with the E-cigarette issue.

Be clear on staff use of E-cigarettes

You should also consider whether you will allow staff to vape during working hours.  This is akin to the use of mobile phones and coffee and smoking breaks at work.  Most employers will limit these to the extent that they interfere with an employee’s ability to perform his job.  It would not be appropriate to require staff to vape in your smoking area as this would expose non-smoking staff to the risks from smoke that the Smoking Act was introduced to prevent.

Again, your policy on vaping by staff should be considered and clearly set out in writing, so that staff understand that a breach of the policy may result in disciplinary action.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.