Shisha tobacco products: a guide to the legislation

In offering this advice the Trading Standards Institute wishes to make clear:

  • Legislation may change over time and the advice given is based on the information available at the time the guidance was produced. It is not necessarily comprehensive and is subject to revision in the light of further information
  • Only the courts can interpret statutory legislation with any authority
  • This advice is not intended to be a definitive guide to, nor substitute for, the relevant law
  • Independent legal advice should be sought where appropriate.

 

1. Introduction

At the commencement of any investigation or the offer of advice involving a shisha tobacco product, it is vital that the product is correctly identified as this will determine which regulations apply. This directory will assist in identifying the more common brands of shisha tobacco. It is important to recognise that shisha is a smoked product. In the majority of cases, the product as supplied will contain (among other things) tobacco. However, there are also varieties of herbal shisha that do not contain tobacco. It may therefore be necessary for the product to be tested by an accredited test facility to confirm that the product contains tobacco and thus falls within the definition of a 'tobacco product'.

Once established as a tobacco-containing product, the relevant aspects of existing tobacco control legislation will apply in broadly similar way to familiar tobacco products such as cigarettes.

 

2. Product labelling

Primary legislation:

Secondary legislation:

Definitions

The definitions below describe two different types of tobacco product. The majority of products contained on the NTPD are classified as smokeless tobacco products. However, the directory also covers smoked tobacco products such as shisha and bidis – separate guidance is available for these products.

Tobacco product means: a product consisting wholly or partly of tobacco whether genetically modified or not and intended to be smoked, sniffed, sucked or chewed. This means that shisha products are included in this definition alongside cigarettes, cigars, pipe tobacco and smokeless tobacco products.

Tobacco products for oral use means a product that is made wholly or partly of tobacco and which is intended for any oral use except smoking or chewing and is either (a) in powder or particulate form, whether in a sachet or not, or (b) presented in a form resembling a food product. Tobacco products for oral use are specifically prohibited for supply under the Tobacco for Oral Use (Safety) Regulations 1992.

These regulations were implemented to specifically prohibit tobacco products that are designed to be sucked or held in the mouth, primarily between the lip and gum. Note: shisha tobacco products are not covered by these particular regulations.

Warnings on shisha products

Shisha tobacco products must comply with certain labelling requirements. They must state on 30% of the most visible surface (the front), one of the following two statements:

  1. Smoking kills
  2. Smoking seriously harms you and others around you

And on the other most visible surface an additional health warning in the form of a picture warning from the list of picture warnings set out in the amended regulations of 2007.

Product identification markings

A manufacturer or UK importer of shisha products for supply must ensure that the packaging carries code-marking whereby the place, date and time of manufacture of the product can be determined and shall provide to the Secretary of State for Health a list of those code markings if required.

Product descriptions

Shisha products must not be supplied with any name, brand name, text trademark, picture or any other representation that the particular product is less harmful to health than any other tobacco product. An example would be the use of the term 'light' or 'mild' previously associated with certain cigarette brands; this was prohibited by this regulation as the inference was that such products were less harmful to health than other products.

Loose sales of shisha

Shisha may be available to consumers in a non pre-packed form, normally made to the requirements of the user prior to use for example at a shisha lounge, cafe or bar. The various ingredients that make up the shisha are likely to have been removed from their original containers and decanted into other receptacles for example the bowl. This presents a challenge when considering the requirements for warnings to be given to the purchaser.

The shisha is ultimately supplied to the customer usually in a bowl which arguably then becomes a 'packet' within which it is presented for retail supply. The definition within the regulations for a packet is given as: 'Packet', in relation to a tobacco product, means any box, package, container, wrapping or other receptacle which contains the product, and in which the product is, or is intended to be, presented for retail supply.

From a practical perspective, it is unlikely that supplier of the shisha will comply with the labelling requirement of the bowl as a packet. This could however be readily overcome with the provision of a notice to the consumer at the time of the supply of the bowl giving the appropriate warnings as outlined above.

Provision of other information

A manufacturer or UK importer of a shisha product must provide to the Secretary of State (for each tobacco product he produces by brand name) a list of all ingredients by quantity, their function and toxicological data in isolation and in combination with all the other ingredients before 1 October in each year. This should refer to their effects on health and any addictive effects and should be provided annually.

This requirement can only be met by providing analytical data from a recognised and accredited source. Enforcement agencies are advised to consult with the Department of Health regarding the provision of this information by the importer or supplier of any shisha product.

Offences and actions

Shisha products that do not carry the correct warning securely affixed, or are not correctly code-marked breach the provisions of these regulations. Enforcement action may be taken under the Consumer Protection Act 1987; see part IV of the Act.

 

3. Tobacco advertising and Point of Sale Requirements

The advertising of tobacco products is restricted to a single A5 size sign at the point of sale. It does not matter how many different brands of tobacco product are available for sale, only one A5 sign is permitted. While it might be unusual to see advertisements for shisha products, it is worth noting that the restrictions placed on tobacco advertising and the forthcoming restrictions on the display of tobacco products apply equally to such products.

The permitted advert must be two-dimensional and may be one single advert or several, provided that the total area does not exceed A5 in size and can include the name, emblem or any other feature of the tobacco product, the price and size of a packet. The advert must include the warning:

'Smoking Kills' or 'Smoking seriously harms you and others around you' and 'NHS Smoking Helpline 0800 1690169'.

Posters in shop windows, sandwich boards outside premises, awnings that carry a shisha brand or logo that advertise tobacco products are all prohibited.

 

4. Underage Sales

Selling to a young person

It is an offence to sell any tobacco product including shisha products to persons under the age of 18 years. It is a defence for a person charged with the offence to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Selling a shisha product to an under age person carries a maximum penalty of £2500.

Note: The definition of tobacco product for the purposes of the 1933 Act includes: any product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression 'cigarettes' includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking.

Further penalties which could impact on non-compliant businesses have been added under Section 143 of the Criminal Justice and Immigration Act 2008. Evidence of three illegal sales made within a two year period, one of which results in a prosecution permits the Local Council to make an application to the magistrates’ court for restricted premises and/ or restricted sales order. The effect of these orders is to:

Prohibit premises from selling any tobacco products and cigarette papers for up to 12 months (Restricted Premises Order)
Prevent named persons from being involved in businesses selling tobacco and cigarette papers for up to 12 months from ANY location  (Restricted Sale Order)

Statutory Notice

An A3-sized notice with characters of at least 36mm high displaying the following statement - 'It is illegal to sell tobacco products to anyone under the age of 18' - must be displayed at every premise at which tobacco is sold by retail. Ideally this notice will be displayed in close proximity to the tobacco products themselves.

 

5. Tax and Duty

Shisha is liable for excise duty and is classified in the Integrated UK Tariff under 2403101000 where the excise duty is £96.64 per kilo (correct as of March 2013).

Purely to cover excise duty, correctly declared shisha product must therefore cost a minimum of:

50gm pack = £4.83
100gm pack = £9.66
150gm pack = £14.49
175gm pack = £16.91
250gm pack = £24.16
500gm pack = £48.32
1kg pack =  £96.64

It is therefore likely that any product available for less than this amount has not been correctly declared, with the appropriate duty being unpaid. The product may be subject to seizure and/or further action by HM Revenue and Customs (HMRC). HMRC should be notified as per the joint working protocol established between HMRC and Trading Standards Institute et al ( 2013).

 

6. Application of smoke free places legislation to shisha lounges, cafes and bars

Under provisions contained in the Health Act 2006, all enclosed public places and workplaces became smokefree in England on 1 July 2007. Shisha premises are not exempt from any part of the smokefree legislation and must operate within the terms of the Act in the same way as all other enclosed public places or workplaces.

The Health Act 2006 states that  'smoking' refers to smoking tobacco or anything which contains tobacco, or smoking any other substance. It 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.

There are three main offences under the Health Act 2006 that may be identified while inspecting shisha establishments:

(i) Permitting smoking in smokefree premises [Section 8(4)]

The Act places a duty ‘on any person who controls or is concerned in the management of smokefree premises to cause a person smoking there to stop smoking’.  A person who fails to comply commits an offence under Section 8 of the Health Act 2006 and upon summary conviction may be subjected to a fine not exceeding level 5 on the standard scale. There is no fixed penalty sanction for this offence.

(ii) Failing to display smokefree signage [Section 6(5)]

The Health Act 2006 also requires an A5 ‘No Smoking’ sign to be prominently displayed at the entrance to smokefree premises. The detailed requirements of the required signs are set out in the Smokefree (Signs) Regulations 2007. Any business not displaying the correct sign commits an offence. There is a fixed penalty sanction for this offence. Defendants can choose to request a court hearing if they do not wish to pay a fixed penalty notice. A person found guilty of an offence of not displaying the correct sign is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(iii) Smoking in a smokefree place [Section 7(2)]

An individual who smokes in a smokefree place commits an offence under the Health Act 2006. In such circumstances a fixed penalty notice may be served on the by the regulatory officer. Defendants can choose to request a court hearing if they do not wish to pay a fixed penalty notice. A person found guilty of the offence is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

Page updated: 16 Jul 2013