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Legislative aspects of vaping in Ukraine

Legislative aspects of vaping in Ukraine

Until recently, the use of electronic cigarettes and tobacco heating devices in our country was practically unregulated at the legislative level, and they could be freely sold without any special restrictions. However, the signing of the Association Agreement with the European Union forced the Ukrainian government to undertake the obligation to implement EU Directive 2014/40, which requires the introduction of clear regulation and control over the circulation of any tobacco and tobacco-related products, including electronic cigarette substitutes.

At the beginning of 2020, changes were made to the tax legislation, under which liquids for electronic cigarettes are now included in the category of tobacco products, with their allocation to a separate subgroup. Starting from 2021, such products are subject to an excise tax rate, the same as for traditional tobacco products. Thus, not only nicotine mixtures for electronic tobacco heaters, but also vaping liquids, have become excisable goods that require labeling and a special license to sell. However, this law only regulated the trade in liquids and mixtures, while nothing has changed for users of vaping devices.

The further development of the anti-tobacco campaign, aimed at bringing Ukrainian legislation on this issue in line with European standards, became quite difficult with the adoption in May and the final entry into force in July 2022 of the law of Ukraine "On Amendments to Certain Laws of Ukraine on the Protection of Population Health from the Harmful Effects of Tobacco". This law on electronic cigarettes, which caused a turbulent public discussion and received a very ambiguous assessment among our fellow citizens, practically equated popular gadgets to traditional cigarettes and liquids for them to all tobacco products.

How has the legislation regarding electronic cigarettes changed

The new anti-tobacco law was intended to update existing regulatory acts, many of which were put into effect too long ago and did not take into account the appearance of fundamentally new high-tech devices - electronic cigarettes. Its provisions prohibit not only smoking in public places, but also the use of any nicotine-containing substances - both burning and heating. According to current legislation, smoking, as well as using electronic cigarettes or devices for heating tobacco, is not allowed on children's playgrounds, inside buildings and on the premises of educational institutions, cafes, bars and restaurants, dormitories, hotels, health care, cultural, physical education and sports complexes. Electronic cigarettes are now also banned in administrative buildings such as state authorities and local self-government bodies, as well as in all enterprises and organizations regardless of their ownership form.

The updated legislation takes into account the changing realities - it already includes definitions of new terms, such as "electronic cigarette" or "flavoring additive", which eliminates the possibility of their ambiguous interpretation and unjustified imposition of penalties. And the fines provided for are very significant. The law stipulates a fine of thirteen thousand six hundred hryvnias for selling electronic cigarettes to minors. In case of repeated violation, the amount of the fine increases to almost twenty-four thousand, and even confiscation of property is possible. Owners of public catering establishments that allow free use of electronic cigarettes in their bars or cafes will pay three thousand hryvnias for the first violation or fifteen thousand for repeated violations. For other entrepreneurs, the amount of the fine is one and ten thousand respectively.

How to sell electronic cigarettes without breaking the law

It is clear that legislative regulations govern both the use and sale of tobacco products, which now includes electronic cigarettes and even the liquids they are filled with. Regulatory bodies may check whether a seller of electronic cigarettes or their refills has the appropriate license to trade in tobacco products, and in the absence of such a license, an administrative protocol can be drawn up, which forms the basis for the application of penalty sanctions. The presence of excise marks on liquid bottles is subject to inspection, regardless of whether nicotine is included in their composition.

According to the definition provided in the law on electronic cigarettes, liquids for them are described as mixtures of chemical substances that may or may not contain nicotine, intended for creating vapor and placed in cartridges, refilling containers, or other containers. However, there is one very important detail: the Tax Code of Ukraine provides an exhaustive list of groups of goods that are subject to excise tax, but the classification of a product into a specific group is determined not based on its commercial name, recommended method of use, or composition stated on the label, but solely based on the UKT ZED code provided by the supplier in the invoice. If the invoice states the UKT ZED code 3824 90 97 20, such a product is undoubtedly a liquid for refilling electronic cigarettes and is subject to all the aforementioned legislative requirements. However, if the accompanying documents show that the refill for vaping is not classified as a taxable item, it can be sold without any restrictions, and there can be no claims against the seller by law enforcement agencies.

As a natural response to the strengthening of anti-vaping legislation among vapers in the European Union countries and now Ukraine, the popularity of DIY e-liquid mixing kits is rapidly increasing. Unlike ready-to-use e-liquids, the components under the Ukrainian Classification of Goods for Foreign Economic Activity codes do not belong to excisable goods and can be sold entirely legally without labeling or obtaining a special license for tobacco product trade. Octolab is the largest wholesale supplier of Octobar, Black Limit Salt, TWINS, Vape Mix Kit, IONIQ component kits in Ukraine, which, according to invoices, are not e-cigarette liquids and their sales are not subject to regulation under the current legislation. Obviously, filling vapes with self-made mixtures does not cancel the ban on smoking in public places for vapers, but component kits are cheaper than ready-to-use liquids since their price does not include excise duty.

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