If your business supplies shisha in water pipes to customers you need to do so legally. Following this guidance will enable you to do this, but failing to follow it may result in you being prosecuted or having your pipes and shisha tobacco seized and your customers being given fixed penalty notices.
The Council and their partners will take action to ensure the laws described below are being complied with. It is important that users of shisha must be made aware of the health issues – there appears to be an untrue, but commonly held, belief that smoking through a waterpipes ‘purifies’ the smoke.
What the Law Says
The law will affect this part of your business in a number of ways.
Where can customers smoke?
No smoking is permitted within enclosed or substantially enclosed public places or workplaces because of the Smokefree laws (sometimes called the “smoking ban”). These laws apply to smoking through waterpipes whether or not the shisha product being smoked contains tobacco, so unless your business has access to a legal smoking area you will not be able to supply shisha in waterpipes.
Waterpipes can be smoked in the open air where there is no roof or ceiling above the smoker. They can also be smoked in some circumstances where there is a roof or ceiling, but only if at least half of the walls of the structure are permanently open. For example, two walls closed and two walls open as long as 50% of the total wall area is open. Any opening that can be closed – for example by a door, window or shutter – is counted as closed. We can provide more detailed advice.
If you construct a shelter for shisha users, it may require planning permission. Please ask for advice prior to any construction.
Who can I sell to?
No tobacco product can legally be supplied to anyone under 18 years old. Given that waterpipes are normally shared, you must check the ages of the whole group and any friends who subsequently join them. It may be sensible to allow only over 18s into the premises.
You will need to take suitable precautions to ensure that your business does not sell to under 18s, such as:-
• Ensuring that proof of age is required to be shown by any young people on the premises.
Best practice is to ‘Challenge 25’ – this means to require proof of age for anyone you think may be less than 25 years. This gives you a good margin of error when assessing age.
• Train your staff thoroughly so they know the law and what precautions to take. Staff may be personally guilty of an offence if they sell to anyone too young.
• Keep a refusals book and monitor it so that you can be confident that staff are following your instructions.
What can I sell?
You can only sell tobacco products that have been legally imported into the UK – anything illegally imported will be liable to seizure by Trading Standards, HMRC or Police officers. The vast majority of shisha products containing tobacco are not legally imported and will not have had the required duty paid on it. In 2011/12, £85 duty is payable per kilogram of product. You may find that it is very difficult to source ‘legal’ shisha tobacco, but if you choose to supply tobacco products we will expect to see evidence that they are legal.
• Keep invoices (or copies) of tobacco products on the premises. If you are paying less then £85 / kg, it will clearly not be legal. Even if you are paying more, we may need your suppliers’ details so we can check they are providing legal products.
• If you buy from other retailers and the packages are not marked with the same warnings you will see on a cigarette packet, they will not have been imported legally.
• If you import tobacco products yourself (in person or via the internet) the responsibility for paying the excise duty will be yours. There will also be other legal requirements to meet that make small scale imports impractical.
If you cannot find a legal source of shisha tobacco, you will only be able to sell herbal shisha legally. We can offer advice on any sources of shisha tobacco that you identify and wish to check out.
What warnings do I have to display?
Any premises selling tobacco products has to display large notices stating “It is illegal to supply tobacco products to anyone under the age of 18.” This notice should be displayed in any areas where customers can be served tobacco.
The waterpipes themselves should be labelled with the same written and picture warnings that are on cigarette packs if they are supplied with a tobacco product in them. As there may be difficulty in labelling the pipes, the Council may be prepared to accept alternative labelling – on menus, on cards given with the pipes, or displayed at the premises, for instance – that will comply with the spirit of the law, if not the letter.
How can I ensure the safety of employees and customers?
Supplying shisha will involve additional risks which you should assess and control. Risk assessments must be documented where you employ 5 or more staff. Risks include infectious diseases, burning charcoal and spillages. Staff should be trained to control the risks and respond to incidents.
You should also take the additional risks into account when completing the Fire Risk Assessment and Emergency Plan for the premises. You can get more guidance on these requirements from the St Albans Fire Brigade Fire Safety Team: 01727 818919. Fire exits should be unlocked and clear and properly signposted.
To minimise the transference of infection, waterpipe mouthpieces and hoses should be thoroughly cleaned and disinfected between users. Disposable mouthpieces are recommended. If your staff light the pipes they should use their own personal mouthpiece and then put a clean one onto the pipe.
Date of last review: 13 April 2017
What will happen if I dont follow this advice?
The Council is quite clear – illegal shisha businesses will not be tolerated in St Albans. Non-compliant businesses can expect regular visits from the Council and their partners until we are satisfied that compliance has been achieved.
It is highly likely that the owners of non-compliant businesses will be prosecuted and if you are licensed to sell alcohol, your licence may also be at risk.