The Question
‘E-cigs’ are electronic cigarettes. Basically, they look like cigarettes but work by heating a solution that contains nicotine.
This produces an odourless vapour that is inhaled. The user inhales this and gets their nicotine hit. When they exhale, you see a ‘vapour’, which looks like smoke. In fact, the units look just like real cigarettes and the tips even glow when the user inhales.
As far as I can tell, there are no obvious health and safety implications as there is no flame and the vapour that is released is not ‘smoke’ – more like steam? I also believe that e-cigs are not covered by the smoking ban as you are not inhaling any tobacco products?
While there are reasons for and against allowing this in the workplace, I wondered what the legal position was and how we should best deal with the situation?
Legal Advice
Esther Smith, a partner at Thomas Eggar
I agree with you that these e-cigarettes have no obvious health and safely implications, although I guess on a practical level someone (another employee, a visitor to site or a customer) may see them being used and assume they are normal cigarettes. This could give rise to others smoking on site, which could then give rise to health and safety issues as well as a breach of smoking legislation.
My personal view is that, although the use of these things is not contrary to any law in it itself, I would not encourage their use at work or inside work premises. I would suggest that you implement a policy to the effect that e-cigarettes are treated in the same way as normal cigarettes.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
To understand whether what you describe is an issue, it is necessary to look at how the law (in this case the Health Act 2006) defines smoking.
Section 1 of the 2006 Act says that smoking means one of two things: a) smoking tobacco or anything which contains tobacco, or b) smoking "any other substance" and smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.
The definition at a) is potentially very broad, whereas b) requires the substance to be ‘lit’, which may be narrower.
From what you describe, the electronic cigarette contains a substance that is heated and inhaled. I’m not sure how that is legally different from smoking a cigarette and it seems to fall within the definition of ‘smoking’ both because the user is clearly ‘smoking’ a ‘substance’ (which is not defined further in the Act).
It is not clear whether, once the device is switched on, the substance inside is ‘lit’. You say it is heated so there could be an argument that ‘lit’ includes ‘heated’ but it’s far from certain.
However, that would only mean b) above did not apply. The individual is still caught by the definition in a) which just requires the act of ‘smoking’ and, as I say, heating a substance to create something to inhale may well be caught by the broad definition of ‘smoking’.
How to deal with this is a matter for each employer. It is not certain that this situation is covered by the Act, but I can see an argument that it is. Perhaps checking as to whether colleagues are bothered by such activity might be a good starting point.
Martin Brewer is a partner at Mills & Reeve.
One Response
E-Cigs are not cigarettes.
Firstly, not all types of e-cigs (and there are many) look like traditional cigarettes or have an end that glows when in use.
The e-cig is not covered by the UK smoking ban. It does not contain tobacco; it is not "lit" (no flame to ignite) and it does not produce smoke. In fact it is not referred to as smoking but "vaping".
The liquid used in an e-cig is a propylene glycol and vegetable glycerine base to which is added food flavourings and if required liquid nicotine – not all users of e-cigs actually use a liquid with nicotine in it.
When the liquid is drawn over a heated coil in the e-cig, it simply put, boils and turns to a steam vapour (think water, kettle and steam) that the user inhales. There is no tar, carbon monoxide or other nasties that are in the traditional cigarette and there is no passive smoking.
It is the tobacco and other additives in traditional cigarettes that cause the problems for both smokers and passive smokers. Nicotine in itself is not a known carcinogen and in fact is found naturally in many vegetables and as I understand it is currently undergoing trials for medical application in the fight against obesity.
Naturally, employers can make their own policies about whether to allow the use of e-cigs in the workplace but bear in mind that if employees can vape at their workplace you don’t have the issue of unproductivity that smoking breaks cause, nor the annoyance/bickering by some non-smokers that their smoking colleagues are being paid to smoke not work.
Why not do some research and talk to your employees that vape to find out more about vaping and the use of e-cigs (there are a number of UK based vaping forums) and then discuss with all employees what policy they want?
We do currently allow the use of e-cigs in our workplaces and although this is a new policy decision, it is working well, there have been no complaints by employees (smokers or non-smokers) who do not vape, in fact many of them are extremely interested and keen to learn more about it and the smokers who vape are to be found at their desks and working far more often than they were before. It also means there isn’t the untidy/unsightly huddle of smokers outside the work-premises.