Following concerns about the safety of e-cigarettes (also known as vapes or e-cigs), Parliament enacted the (fictional) Vaping Act 2022. The Act states that manufacturers of e-cigarettes must have the approval of the Secretary of State for Health before selling their products in the UK.

Section 1 of the Vaping Act 2022 states:

(1)  No manufacturer may sell an e-cigarette in the UK except under a license granted by the Secretary of State;

(2)  A license lasts for one year and can be renewed by the Secretary of State;

(3)  A license can be revoked for reasons of public health by the Secretary of State;

(4)  The Secretary of State may choose to delegate the powers granted by subsections(1),(2) and (3) to anybody he or she deems suitable;

(5)  A manufacturer who is refused a license or has a license revoked has the right to appeal to the E-Cigarette Licensing Tribunal.

The Secretary of State delegated her powers under section 1(1), section 1(2) and section 1(3) of the Vaping Act 2022 to the E-Cigarettes Association ('ECA'). The ECA is a self-regulatory body, representing the interests of manufacturers in the field. The ECA was chosen due to its expertise and experience.

The ECA initially granted licences to three e-cigarette companies - EZ Cig, Flavour Bomb, and Vape Ltd.

You are asked to advise the following parties:

a)  EZ Cig have had their licence revoked by the ECA. EZ Cig appeal the decision to the E- Cigarette Licensing Tribunal. The Tribunal upholds the ECA's decision but does not give any reasons for its decision. It later came to light that Sir Bob Brown, a former Chief Executive of Vape Ltd, had been appointed as the Chair of the Tribunal a week before EZ Cig's licence was revoked.

b)  Flavour Bomb had its licence revoked after two incidents involving their e-cigarettes catching fire. It later transpires that the decision to revoke Flavour Bomb's licence was made by a junior civil servant in the Department of Health, and not the ECA. Flavour Bomb appeal this decision. However, the E-Cigarette Licensing Tribunal does not allow Flavour Bomb to be represented by lawyers. They also refuse their request to cross-examine the civil servant who made the decision. The Tribunal later dismiss Flavour Bomb's appeal.

c)  Vape Ltd's licence needs renewing. The ECA then refuses to renew Vape Ltd's licence on the grounds that the ECA does not like Vape Ltd's advertisements, which it thinks are harmful to the good name of the e-cigarette industry. Advertising for e-cigarettes is lawful in the UK. Vape Ltd's advertisements have broken no laws, and no-one has complained about them.

Answer rating: 100% (QA)

a In the case of EZ Cig even though the ECigarette Licensing Tribunal upheld the ECAs decision to re... View the full answer