TPD not as bad as first thought

[Bobsbeer]

In many respects TPD is as bad as it gets, but I'm talking specifically the issue around advertising and sponsorship, thinking specifically about the likes of Vapefest, but also other more regional meetups.  Some have even worried about the impact on the likes of here and other forums set up or dedicated to vaping.  As is normal with stuff like this it is very easy for misinformation to take on a life of it's own and become the common knowledge and position.  So in a bid to straighten things out a bit I thought I would go back to the hoses mouth so to speak and find out what the position really is, and it's not as bad as it might first appear.

So what does TPD and UK draft regulations say?

First TPD - 

Article 20 5(d) states "...any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited..."

(Reference source  - HERE - My emphisis)

At first glance it appears quite overarching and draconian, until you notice the 'and/or' in the second line.  To be in breach if this section an event must take place in several member states or have cross border effect.

The UK interpretation -

PART 7 Electronic cigarette advertising
 
Sponsorship of events etc. 4.—(1) No person may sponsor, with the aim or effect of promoting electronic cigarettes or refill containers— (a) an event or activity which takes place in or has an effect in two or more EEA states (“a cross-border event or activity”); or (b) an individual taking part in a cross-border event or activity. (2) In this regulation “sponsorship” means any form of public or private contribution in the course of business to any event, activity or individual.


(Reference source - HERE)

Again at first glance of line 1 it would appear sponsorship is a no no, until you read a & b of clause 1, which pretty much follows the wording in TPD above.

So my interpretation of both of these is that as long as an event is being held in one member state ie UK, then it is not subject to these regulations.  So Vapefest should be safe according to the above as it is a UK only event.  The same would apply to other smaller events and even meetups, even if sponsored by a vape vendor.

Small print - I am not a lawyer so may be talking bollocks. 

[MrDJ]

have a read of this posted on the planet today www.planetofthevapes.co.uk/news/vaping-news/2015-12-20_tpd-proposals-for-uk-law-confirmed.html

[Bobsbeer]

I'm only looking at a narrow section, that around sponsorship of events, and while I don't disagree with most of what POTV say on the matter I do disagree with this section, which I see as misleading at best or a deliberate attempt to distort the truth.

The removal of your rights does not end there.

“Any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited.”

This means you could be committing a criminal offense if you organise, take part in or allow a vape meet to happen on your premises. This means you could be breaking the law if you attend a demonstration, for example, outside the Department of Health. It means that vapers, who made an informed harm-reduction choice to use nicotine in the way they see fit, may not be allowed to talk about it – anywhere.

- See more at: www.planetofthevapes.co.uk/news/vaping-news/2015-12-20_tpd-proposals-for-uk-law-confirmed.html#sthash.JJJrlSdr.dpuf

"...This means you could be committing a criminal offense if you organise, take part in or allow a vape meet to happen on your premises... - Sorry but that is just plain wrong, and I would ask how they interpret this from the actual wording in the proposed legislation. Again how they can say that demonstrating outside DoH would be outlawed by this is beyond me.

We as vapers need to tell the truth, not twist it. If we can't be trusted then there is no hope.

[djs]

We'll see, I guess.

Many of the ones we use don't advertise. In fact, oddly, the ones that advertise endlessly are the less-than-attractive 'brand' e-cigs. Not good for newbies, but less impact on us.

As for demonstrating. Unless I am very wrong, I/we can demonstrate anywhere on any issue. Only inciting terrorism, racial hatred or similar is likely to get you in trouble.

Article 11 of the human rights, or something along those lines. I believe the State even has an obligation to facilitate "assembly"

en.wikipedia.org/wiki/Article_11_of_the_European_Convention_on_Human_Rights

A specific law banning Vapers meeting and expressing themselves isn't going to happen. Stopping a public gathering would require some serious leg-work by some lawyers. Nobody is going to waste time on that. Admittedly all venues could refuse and any promotion of such an event could be seriously curtailed.

[Bobsbeer]

Whichever way they try to stop such gathering or meetings they need to have the law to back up their decisions. For instance Shropshire Showground could not stop Vapefest on the grounds it was illegal to allow it to take place on their premises, as they would be seen to be 'promoting' or sponsoring e cigs. They could decide to not accept the booking as it is a private site, but that is their personal choice. The draft regulations would not be an impediment to allowing it to take place as it is only happening in one state. On the other hand say Totally Wicked decided to do a promotional "vape in", in all it's shops all over Europe, then they would be in breach as it would be being held in more than one state.

[Greg]

I think your barking up the wrong tree with the "only one state view"

I can't think of a reason why they would want to ban only events that occur in more than one member state at the same time and although I agree it reads that way I'm almost certain that won't be the legal interpretation. I'm not aware of any such events ever existing

The key word is contribution, I think Vapefest could be on shaky ground for that reason but forums and vape meets where no "contributions" are involved will be fine IMO.

[Bobsbeer]

I agree Greg, but I'm only going on the wording as published by both the EU and UK. I see no reason why, if they meant to ban all sponsorship of events, why they would not say it. Indeed they just needed to leave out the clause a & b and that would read exactly that, but they didn't. So without further obvious reasons, I see no reason not to interpret it as written. That would be how a court would interpret it, so while it may appear to us as nonsensical to an extent, it is as it is, and needs to be interpreted as such. It is also very clear in how it is laid out and they describe it as a "cross border event or activity". My interpretation for this is to prevent pan european events being sponsored. Such as Euro 2016 or other big events covering a wide international area.

[nanotm]

sponsorship of activity/individuals involving or taking place in several member states or otherwise having cross boarder effects

which can be taken as anything on the internet since there are no geo-blocking controls in place, also as its hosted outside of the UK this website for instance where a good deal of members are in fact vendors or mod makers/

face facts the TPD is indeed as bad as it seems if not worse, we just now need to hope that the rest of the directive gets amended to be less totalitarian rather than enacted as worded direct from the EU

[Bobsbeer]

I started this thread nanotm by saying:

Dec 20, 2015 13:15:26 GMT Bobsbeer said:

In many respects TPD is as bad as it gets

However my thread is not about the whole of TPD and it's consequences, bad or good. Merely the narrow subject of sponsorship and the law as it has now been published. We now have most of the proposed legislation concerning the UK interpretation of TPD and the effects on e cigs. There is very little to be cheerful about in any of it, although I can see a few loopholes starting to appear depending on how you read it. I don't mean the regs outlined above, as to me, they seem very clear and unequivocal. They do not apply to events happening in one state only, full stop. I defy anyone to read it in any other way, or come up with a different interpretation based on the published text. The caveat to all of this, is that none has yet been made into law, so until the final text is drafted and laid before parliament we cannot be certain about anything. The slightly confusing part is that in the draft SI published in July 2015, Part 7 is all about distance selling, not about sponsorship, so no doubt that has been added since the original was published, and re numbered. SI's are very tricky and sneaky bits of legislation. They just get plonked in the Commons for a time and then they become law, no debate or overt scrutiny unless an MP raises it. We need to be vigilant and write to our MP's if we are to have any impact on the final wording and subsequent law.

[Greg]

Dec 20, 2015 15:42:01 GMT Bobsbeer said:

I agree Greg , but I'm only going on the wording as published by both the EU and UK. I see no reason why, if they meant to ban all sponsorship of events, why they would not say it. Indeed they just needed to leave out the clause a & b and that would read exactly that, but they didn't. So without further obvious reasons, I see no reason not to interpret it as written. That would be how a court would interpret it, so while it may appear to us as nonsensical to an extent, it is as it is, and needs to be interpreted as such. It is also very clear in how it is laid out and they describe it as a "cross border event or activity". My interpretation for this is to prevent pan european events being sponsored. Such as Euro 2016 or other big events covering a wide international area.

Oh like the Vaping World Cup, I overlooked that one 

[Bobsbeer]

Don't shoot the messenger Greg. I am only reading what has been published, discussing it and have no further inside knowledge than the rest of us. It too is beyond me what they mean by cross border events or activity, or why it only applies if the event is going on in two or more EU states. Maybe I should write to my Euro MP to explain it, but unlike many laws, this one seems fairly straight forward to read, and clear. Which I might say is quite a change from the laws I usually read, Mental Capacity Act and the Mental Health Act on a daily basis as part of my job. Have a read of the former and tell me you get it when you first read it. The MCA is actually a good bit of legislation, but can be a bit of a minefield to get your head around.

[blaze]

I agree with your interpretation Bobsbeer , and your caveats!

I've always assumed "cross-border effects" to be some kind of catch-all phrase for social media and the like? Have you any idea of what it means?

Edit: didn't read your last post properly doh!  Ah well, while I'm here I'll add to your excellent suggestion to write to our MPs by suggesting an excellent site to do it by - writetovape.co.uk 

[Deleted]

Looking at this table, I can't agree that this is not as bad as was first thought.



When you look at he laws amended and manufactured due to the TPD, I don't think the government and their legal advisors are going to roll over to how we feel the law on this should be interpreted. I can see the point you are making Bobsbeer, but I fear that the legal interpretation will be made out otherwise or the wording amended to suit their needs. Maybe get a better indication on how things are developing after the initial findings from the TW case on Wednesday. My biggest question is :- How will all this be policed for the vaper on the street on a daily basis, e.g. you, me and the rest of the folks that have decided to kick the stinkies for a safer method of nicotine intake ? Will this mean having to avoid vaping in view of the local PC plod, will the gestapo who dish out fines in the local shopping centre to anyone who drops a fag butt on the ground, now have the right to challenge you if they think your preferred set up for the day might infringe the terms of the TPD ? What worries me is that it is all legal jargon, nobody has came out and said exactly how it is in layman terms. I'm certainly not going to try and shoot my way through pages of legal terminology, to grab the wrong end of the stick. I think everybody will know, when this all comes into force, somebody, somewhere, will pretty quickly be fined or have a court appearance, which will be splashed everywhere with the backing of the government to justify their decision to enforce it. But in doing so, they may just break the very law they manufactured on promoting and advertising vaping

[hazza1962]

And why exactly, would a prominent member of the Vaping Community attempt to Deliberately Distort the Truth in your opinion Bob ? Not that I'm particularly interested in your opinions but it would be nice to know the evidence behind your statement!!!

[Bobsbeer]

First off is to completely ignore the table you have quoted. That is just a summary and will not be part of the law, unless incorporated into the final SI. The wording in the SI is the important part, and the bit that will become law. Of course as I said earlier, we have yet to see the final draft, but we should see that in early 2016 if they want it to become law by 20 May 2016. The SI has to be laid before parliament 40 days before it becomes law.

As for walking down the street past PC plod with your mahoosive 500w mod and a 1lt tank with 30 mg juice, there will be nothing they can do, or for that matter will do. The rules as they are emerging are about supplying not using. So the onus is on the suppliers to comply not us the consumer. HMRC may take a dim view if you order from outside the UK, but the chances of it being stopped are in reality low. Again other than confiscation there would not be any comeback on you.