Online Vape Sales Takedown Rule Is Guidance, Not a Formal Department Regulation

Following the announcement on November 1 by the National Tobacco Monopoly Administration and the State Administration for Market Regulation urging the removal of online vape sales, on November 3, Beijing Business Daily noted that several merchants on e-commerce platforms like Tmall and JD.com were still selling vapes and related products. Industry insiders stated that the announcement serves as a guiding document within the industry and does not have mandatory enforcement power, thus calling for stronger laws and regulations.
 
On November 3, when logging into the flow Tmall flagship store, the "Double 11" promotional activities were still prominently displayed on the homepage. Regarding the announcement from the National Tobacco Monopoly Administration and the State Administration for Market Regulation, the customer service of flow Tmall flagship store stated: "We just received this information, and the person in charge is currently addressing this matter. Orders that have already been placed will be shipped as normal." Meanwhile, the customer service of the Xiaoye smoking tools Tmall flagship store indicated that purchases can still be made; RELX's Tmall and JD stores are also continuing normal sales.

On November 1, the National Tobacco Monopoly Administration and the State Administration for Market Regulation jointly issued a notice titled "Further Protecting Minors from the Harm of E-cigarettes" (hereinafter referred to as the "Notice"), which requires all market entities not to sell e-cigarettes to minors and prohibits the sale of e-cigarettes on the internet.

On the night the Notice was released, several e-cigarette brands, including RELX, Moti, and SnowPlus, issued statements. However, Beijing Business Daily found that the focus of these statements was primarily on "protecting minors" and "prohibiting the sale of e-cigarettes to minors," with no mention of the "internet sales ban."

Shanlan mentioned in their statement: "At the product level, we designed a child lock feature in the first generation to prevent minors from accidentally inhaling; at the promotional level, there are strict prohibitions against minors experiencing and purchasing our products." The customer service of RELX's Tmall flagship store stated that Alipay requires binding an ID card to determine the buyer's age.

In fact, prior to the release of the Notice, both JD.com and Tmall had issued relevant regulations regarding the sale of e-cigarettes. JD.com announced at the end of September this year that it would launch an identity verification system for purchasing e-cigarettes/e-liquids, requiring merchants to complete relevant operations by October 15. Products without verification measures would be removed from the shelves. After the announcement, some consumers found that they could not purchase e-cigarettes through the PC version. However, Beijing Business Daily recently discovered that purchases can now be made normally through the PC version.

In response, Guo Xiaohua, a lawyer at Beijing Weihe Law Firm, told reporters that the normative documents issued by the National Tobacco Administration do not fall under departmental regulations and can only be considered as guiding documents within the industry. Therefore, the announcement serves more as a regulatory signal for the e-cigarette market, and further effectiveness requires the introduction of relevant laws and regulations. However, although brands and platforms have taken action, it is clear that this has not met the requirements.

Guo Xiaohua explained to Beijing Business Daily: "Department regulations refer to normative documents issued by various departments and committees under the highest administrative organs of the state within their jurisdiction to adjust departmental management matters. The National Tobacco Administration is under the leadership of the Ministry of Industry and Information Technology, so the normative documents issued by the National Tobacco Administration do not fall under departmental regulations and can only be considered as guiding documents within the industry. If the Tobacco Administration's regulations were published externally by the Ministry of Industry and Information Technology, they would be considered departmental regulations."

The Notice serves as a guiding document within the industry but also signals the beginning of national regulation of e-cigarettes. Zhang Jianshu, president of the Beijing Smoking Control Association, told Beijing Business Daily that the chaotic situation of e-cigarettes has been rampant, previously developing in an unregulated manner. Now, with specific policies targeting online sales, it indicates that management has begun. However, he also expressed concern that the "Notice on Prohibiting the Sale of E-cigarettes to Minors" issued in August last year, which prohibits direct promotion and sale of e-cigarettes to minors, has not been effective.

Currently, the restrictive regulations on e-cigarettes in China mainly focus on local smoking control regulations. In October this year, after the revision of the "Shenzhen Special Economic Zone Smoking Control Regulations," the first smoking control enforcement was launched, clearly defining smoking and tobacco products as "products made entirely or partially from tobacco for smoking, sucking, chewing, or nasal inhalation, including e-cigarettes." This means that e-cigarettes are also included in the smoking control category.

"Currently, cities like Hangzhou, Shenzhen, Nanning, and Qinhuangdao, which have newly revised laws, have already included e-cigarettes in the smoking control scope. However, cities like Beijing and Shanghai, which established regulations earlier, have not included e-cigarettes. We are now proposing to include e-cigarettes in the 'Beijing Citizen Civilization Promotion Regulations' to prohibit smoking, including e-cigarettes," Zhang Jianshu told Beijing Business Daily.

The lack of production standards may be the biggest issue facing the e-cigarette industry today. Previous media reports indicated that Shenzhen Shajing, known as the "E-cigarette Street," produces 90% of the world's e-cigarettes. The entry barrier to the e-cigarette industry is very low, and the supply chain is very simple.

Recently, the Shenyang Tobacco Monopoly Bureau's inspection team uncovered a major illegal operation involving heated non-combustible new-type cigarettes, seizing over 4,000 packs of Marlboro, HEETS, fiit, MC, and KuanZhao brand "tobacco sticks," with an involved amount exceeding 35 million yuan.

"We also call for the prompt establishment of production standards, including clear specifications for product quality, ingredients, and content. Some products have significant discrepancies between their labels and actual contents, which can pose dangers. It is essential to strengthen production standard regulations from the source," Zhang Jianshu stated.

According to the official website of the National Standardization Administration, the national standards for e-cigarettes are currently in the review stage. Once approved, the production and circulation of e-cigarettes in China will be executed according to national standards, with the National Tobacco Monopoly Administration as the supervising authority.