Arrangement of Business
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and return in 10 minutes.
Tobacco and Vapes Bill
Thursday 13th November 2025
(1 day, 14 hours ago)
Grand CommitteeTobacco and Vapes Bill 2024-26 View all Tobacco and Vapes Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-V(a) Amendment for Grand Committee (Supplementary to the Fifth Marshalled List) - (12 Nov 2025)
Baroness Hoey
“Regulations made under Part 1: Windsor Framework(1) Before making any regulations under this Part, the Secretary of State must—(a) commission an independent legal opinion assessing—(i) the extent to which the implementation of this Act in Northern Ireland complies with the Windsor Framework;(ii) the likelihood of any increase in the illicit trade in tobacco products if regulations under this Act are made in relation to Northern Ireland otherwise than in England, Wales and Scotland;(b) publish that legal opinion;(c) consult any person they consider appropriate.(2) The Secretary of State may not make regulations under this Part unless the Secretary of State is satisfied that the legal opinion under subsection (1) demonstrates that the implementation of Part 3 of this Act (sale and distribution: Northern Ireland) is fully compliant with the Windsor Framework and consistent with the Tobacco Products Directive of the European Union (2014/40/EU).”Member's explanatory statement
This amendment seeks to prevent the Secretary of State from making regulations about the sale and distribution of tobacco in England and Wales until they have considered and demonstrated that to do the same in Northern Ireland would be fully compatible with the Windsor Framework and the Tobacco Products Directive.
Baroness Hoey (Non-Afl)
My Lords, I will also speak to Amendments 138A, 200 and 201A. Before I go into them, I want to remind people that if this Bill goes through in its entirety as it is now, starting in February 2028, adults under the age of 21 in the Republic of Ireland will be barred from buying tobacco at home but will still be able to nip across the border to stock up in Northern Ireland. If the generational ban comes in, the cross-border relay will reverse, with 22 year-olds banned from buying tobacco in Belfast still free to nip over the border to Dublin. As the years go by, the legal uncertainty will get worse: 43 year-olds will not be able to buy a packet of cigarettes in Enniskillen legally, but a 44 year-old will; while just down the road in Donegal, both will be able to do so freely. It may sound amusing, but smugglers and so on will be absolutely delighted at being able to make such a lot of profit.
These amendments deal with issues that I sometimes think can be summed up as those that “dare not speak their name”, or, at least, those the Government seem to be putting their head in sand over. They all deal with the question of whether, because of the EU tobacco directive, the Bill can or cannot apply to Northern Ireland. According to that directive, states cannot limit the placing on the market of tobacco products. It was that which caused the Governments in Denmark and the Irish Republic to withdraw proposals to do more or less what this Bill is doing, because they would breach the European Union tobacco directive.
Before noble Lords say that Parliament is supreme and if it says that Northern Ireland is included, of course it will be, I remind them that under the Windsor Framework/protocol, Parliament no longer reigns supreme over one part of the UK: Northern Ireland,
“because Section 7A of the European Union (Withdrawal) Act 2018 overcomes every other provision in any other statute, whenever enacted, that stands or would stand in its way.”
Those are not my words but those of John Larkin, KC, the former Attorney-General of Northern Ireland, who has provided a legal opinion on this Bill and Part 3’s compatibility with the Northern Ireland protocol of the withdrawal agreement made between the United Kingdom and the European Union.
I should declare an interest. John Larkin acted for myself, the honourable Member for North Antrim, the noble Lord, Lord Dodds, and others in the case which brought about the Supreme Court judgment stating that the Acts of Union had been suspended because of the protocol. Noble Lords will know that the legacy Act has also been affected by this ruling, as was the Rwanda Act. The Government gave brave assurances in respect of those Bills that they were content that this would apply to Northern Ireland, only for the courts to rule otherwise, as many of us predicted they would.
At Second Reading of this Bill in the other place, the honourable Member for North Antrim raised this question, as did I and other noble Lords at Second Reading in your Lordships House. When I referred earlier to the Government hiding their head in the sand, I was referring to the varying answers we get from Ministers on the Bill’s compatibility with the Windsor Framework/protocol. The word “intention” is used too often, and there is clearly confusion, if not downright silence.
The Minister said at Second Reading, at the very end of the long debate:
“I assure noble Lords that we are content that the measures intended to apply to Northern Ireland are consistent with the obligations in the Windsor framework”.—[Official Report, 23/4/25; col. 744.]
What I find very concerning is the way in which the UK’s Attorney-General, the noble and learned Lord, Lord Hermer, reacted. I wrote to him on 16 October enclosing the legal opinion of John Larkin and summarising the key conclusions of all the legal advice. I said that he and others had said that Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework agreement in Northern Ireland. I mentioned the idea of the generational ban in both those other EU states where the common obstacle was the 2014 directive, and said that
“the 2014 Directive, taking effect through the WF and section 7A of the 2018 Act, is an insuperable obstacle to the effective enactment of Part 3 of the Bill”.
That was on 16 October. On 2 November, I got an email back, signed not by the Attorney-General but by “Vicky”, who I think is the diary secretary to the law officers. It said: “Dear Baroness Hoey, apologies for the delay in getting back to you and thank you for the email and letter below. The Attorney is grateful for your letter; however, please can we politely suggest that you contact the Bill Ministers, the Secretary of State, Wes Streeting, and Baroness Merron. They will be better placed to discuss the topics raised in your letter”. I find that quite astonishing and my admiration for the Minister has risen so much, because she is clearly now going to be able to speak on behalf of the Attorney-General and his legal team. I am absolutely surprised at that answer.
My Amendments 114B, 138A and 201A seek to ensure that these parts of the Bill will not come into force until the Secretary of State commissions and publishes the findings of an independent legal opinion showing that these parts are fully compatible with the Windsor Framework and consistent with the EU’s tobacco products directive. Amendment 200 provides a route to allow the Bill to apply in Northern Ireland, and this would be to exempt the tobacco directive from passing through the conduit that delivers EU law to Northern Ireland: namely, Section 7A of the European Union (Withdrawal) Act 2018. Only then can we be confident that our Parliament decides the law for the whole of the United Kingdom and not just Great Britain. It is quite outrageous that our sovereign Parliament, despite the majority of the country voting to leave the European Union, cannot produce a Bill these days applying to the whole of the UK that we can be certain will do so. We will see legal action after legal action, and we see on other Bills that this is already happening.
This Bill, which is fundamentally about health in our country, may have some flaws, but surely it is not too much to expect that citizens in my part of the United Kingdom should be treated as equal citizens when it comes to such an important issue as health. John Larkin ended by saying:
“The Bill serves almost as a textbook example of how a measure advanced by a Government commanding a large majority in the House of Commons can run aground, as respects its Northern Ireland component, on provisions contained in the WF. Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the WF in Northern Ireland”.
That is an absolute disgrace, and I hope that more and more noble Lords are beginning to realise the actual, perhaps unforeseen consequences—although warned about at the time—of signing up under EU diktat to what is going to happen in part of our United Kingdom.
I hope that clarifies matters, and I greatly look forward to the response from the person standing in for the Attorney-General—I was going to say the “mini” Attorney-General, but that is the wrong word—on these legally very important issues that really affect the Bill. We could all be sitting here wasting our time, because this could end up, as so many other Bills will, in the Supreme Court. I beg to move.
Lord Murray of Blidworth (Con)
My Lords, I will speak in support of my Amendment 216, which proposes a new clause that would provide accountability and oversight. In my submission, it would balance flexibility with constraint and ensure the approval of the next Parliament for this policy. It would also provide a check on ministerial power, encourage inclusivity in the process and provide transparency as to how the policy evolves. In doing so, it aligns with the better regulation principles so fluently outlined by my noble friend Lord Johnson in his speech to the Committee in our previous debate. The better regulation principles emphasise the regular review of laws, avoid unnecessary burdens in respect of outdated legislation and help to maintain proportional public policy.
Amendment 216 would ensure that the significant regulatory powers in the Bill do not continue indefinitely without political scrutiny. It would create a five-year period for a formal review and allow the consideration, after that period, of any new evidence about public health outcomes, compliance levels, market behaviour or unintended consequences. I refer to my remarks to the Committee in our first debate, when we discussed the impact of the Bill on the growth of the black market for tobacco products, particularly cigarettes.
The provision would also encourage policy flexibility and development, ensuring that it remains fit for purpose. As the Committee can see, it requires an impact assessment before a potential renewal of the policy, to ensure that it remains data driven. The impact assessment would require a full consultation, with two months to respond, on the draft regulations that would result from the consultation process. That would ensure that a decision to proceed or not takes into account the views of all stakeholders, including manufacturers and retailers.
The provision is flexible in that it gives the Secretary of State power to extend the life of the provisions by regulation to six years, or to shorten it to four years if necessary. That is a measure of proportional consideration that has been included in my amendment. Requiring the renewal of the regulations related to the Tobacco and Vapes Bill to be subject to the affirmative procedure would allow Parliament to debate and approve the provisions and to determine whether they should remain in place. This measure requiring parliamentary approval to proceed would mean that this policy would then have political legitimacy in the next Parliament.
As noble Lords can see, proposed new subclause (2) in the amendment concerns the provisions of Part 3 of the Bill relating to sales in Northern Ireland. I draw the Committee’s attention to the answer given by the Minister to a question I raised on the first day in Committee. I asked her the following:
“The Minister has not yet touched on the issue of Northern Ireland. Is it right that the Windsor Framework precludes the generational smoking ban coming into effect in Northern Ireland?”
She replied:
“The Bill is UK-wide, as the noble Lord will be aware. It has been developed in partnership with the Scottish Government, the Welsh Government and the Northern Ireland Executive, and the intention is that the measures in the Bill will apply across the UK. I assure him that, in preparing the Bill, the Government considered all their domestic and international obligations and the Bill does comply”.—[Official Report, 27/10/25; col. GC 166.]
Given what we have just heard from the noble Baroness, Lady Hoey, on the careful and considered opinion of John Larkin, KC, the former Attorney-General for Northern Ireland, it appears that the Minister’s position was misplaced. Given what we have just heard about the correspondence that the noble Baroness has had with the Attorney-General, the noble and learned Lord, Lord Hermer, it seems that he is keen to wash his hands of the issue and refer to the experience of the Minister.
That is perhaps slightly unusual, given that there is a position called the Advocate-General for Northern Ireland—it was provided for in the Justice (Northern Ireland) Act 2002 and created upon devolution—but that senior Northern Irish legal post is held by one noble and learned Lord, Lord Hermer. Can the Minister give us a clear answer on whether the intention really is to apply these provisions to Northern Ireland? If it is not, is not the whole generational ban in some difficulty?
Earl Russell (LD)
My Lords, I shall speak to my Amendments 195 and 196 on reviews and compliance; I thank my noble friend Lady Walmsley for adding her name in support of them.
We support this Bill and its core intention of creating a smoke-free generation. More than that, we support the fact that this Bill is making progressive changes with the aim of having lasting impacts. However, it is often these very forward-thinking ideas that require further reviews and guidance because they are, by their very nature, new and different. It is surprising to me that the Bill as drafted does not contain any form of formal review mechanism. We think that a review mechanism is fundamentally necessary and useful, the intention being to support the aims of the Bill and not to detract from them in any way. It is in this spirit that I speak to my amendments.
Amendment 195 would require the Secretary of State to conduct and publish a review of the Tobacco and Vapes Act within six months of 1 July 2030, when those born on or after 1 January 2009 will have reached the age of 21. This review would evaluate how effective the Act has been, including whether the legislation has reduced the use of tobacco and nicotine in the first affected generation and whether it has achieved its intended objectives and public health outcomes. It would also examine any unintended effects, such as challenges with enforcement, widening health inequalities or any growth of illicit or unregulated markets. This early-stage review process would ensure that Parliament can assess the policy’s impact on young adults and make timely adjustments if any are required.
My Amendment 196 would mandate a further, more comprehensive review of the Act’s implementation when the same cohort reaches the age of 25, four years later, to be published within six months of 1 July 2034. This second review is designed to assess the longer-term success of the legislation, including changes in smoking and vaping prevalence; impact on public health outcomes; and the role of cessation programmes. It would also explore any emerging social or economic consequences, offering a deeper understanding of the Act’s sustained effectiveness. This later review would provide Parliament with a robust evidence base to determine whether further legislation or policy adjustment is needed.
Together, these two amendments seek to ensure that future Governments do what this Bill sets out to do: to protect the next generation from the harms of tobacco and nicotine, and to do so through measures grounded in evidence, transparency and sound policy-making. My amendments are designed to strengthen the Bill’s core purpose as it is advanced over time. They would help to ensure that the Bill’s stated outcomes are reviewed and assessed, and that any further amendments are considered. They would ensure that evidence is examined at each critical stage of implementation. They would ensure that, where adjustments may be needed—whether in enforcement, cessation support or tackling unintended consequences—Parliament would be properly informed and, therefore, able to act.
The age of 21 is the first major milestone when we can meaningfully assess the outcomes. It is of foremost importance that the impact of the legislation be considered in relation to rates of vaping in the UK. It is vital that unintended consequences be examined if they emerge, particularly in relation to rates of vaping. This later phrase is vital. Every public policy and piece of health legislation brings with it the possibility of unintended consequences and side-effects, whether they concern enforcement, equity or the rise of illegal markets.
I believe it is important that these matters be reviewed. It is also essential that the review be based on adequate data which is used to re-examine the policy and check that it is effective. If policies emerge, it is important that this legislation be reviewed. These amendments are about ensuring delivery and that the Bill, when it becomes an Act, does what it sets out to do. I want to see a feedback loop between policy ambition, lived experience and data. These questions of enforcement and of rising age restrictions are important, as is the issue of black markets, so the Government need to review this legislation to see that it does what is intended. My hope is very much that the Minister will at least agree to take the principles of regular, evidence-based reviews back to the department, because this is a genuine offer to try to make sure that the Bill is effective over time.
Turning briefly to the other amendments in this group, Amendment 189 in the names of the noble Lord, Lord Kamall, and the noble Earl, Lord Howe, is also about implementing a review of the Act. The review proposed in their amendment would come after five years and include laying a copy of that review before Parliament. In a different vein from my review, it would also include a review of the impact on small and micro-businesses. I am tempted to support their amendment, too. The central focus of the Bill is a smoke-free generation. That should not be at the expense of small businesses, but the most important element here is that we get a smoke-free generation, so I am minded to lend my personal support to Amendment 189.
Amendment 216, spoken to by the noble Lord, Lord Murray, again seeks to put forward a review. Where I part company on his amendment is its expiring nature. While we support reviews of the legislation, the review needs to happen and the consequences come afterwards. To put the expiry in the Bill sets up the possibility that a future Government of a different persuasion could use it as an opportunity to remove important elements of what will then be an Act, which we would not want to see happen.
I will leave it to the Minister to respond to the other amendments in this group on the Windsor Framework.
Lord Dodds of Duncairn (DUP)
My Lords, I support the amendment standing in the name of the noble Baroness, Lady Hoey, and of course Amendment 200, which stands in her name and my own. I look forward to the Minister’s response to this debate, because she is now expected to deliver not just political answers but legal judgments. I note that the noble and learned Lord, Lord Hermer, is not usually so reticent in making his opinions known, but he seems incredibly bashful when it comes to the Windsor Framework. He has of course been known to have an involvement in Northern Ireland affairs in the past, so I look forward to what the Minister has to say on that.
The legislation before us in the latest in a whole series of measures, both primary and secondary, which are affected by the Windsor Framework or protocol. “Windsor Framework” is of course just a new name for what is substantially the Northern Ireland protocol. A few minor amendments were made but it is substantially that protocol, as agreed by the previous Government with the European Union. Section 7A of the European Union (Withdrawal) Act 2018 is, as the noble Baroness, Lady Hoey, outlined, the conduit or means by which European law takes precedence over any UK legislation, primary or secondary, in over 300 areas covering vast swathes of the economy of Northern Ireland. Let that sink in: when we talk about Brexit and sovereignty, part of the United Kingdom is subject to European law in over 300 areas.
Just this past month, we have been debating various issues, including the supply of veterinary medicines to Northern Ireland, some of which may be discontinued because they do not conform to EU standards, causing major problems for animal health. The Government are showing no urgency in addressing this. The Select Committee on which I have the privilege to serve looked at this matter yesterday; I hope that we will get some action. We also looked at the issue of dental amalgam, and now we have this tobacco Bill. In all these issues affecting Northern Ireland, UK legislation is disapplied or cannot apply because of the Windsor Framework/Northern Ireland protocol.
Northern Ireland is bound in this area by the tobacco products directive—directive 2014/40/EU—because it is listed in annexe 2 of the protocol. That is where we get the figure of 300 areas of law. Of course, although we can debate all these issues, and Northern Ireland representatives, and others, in the House of Commons and in this place can give their views, at the end of the day the decisions are made by the European Commission. The European Union will decide what happens in part of the United Kingdom, regardless of the views of anyone elected in the UK Parliament or the Stormont Northern Ireland Assembly, of whatever party, or anyone in this House.
That should perturb us all. It is not just a unionist concern; it is a concern for any self-respecting elected politician of whatever party that they are not able to make laws for the people they represent. Ultimately, unless this matter is addressed overall, it will have grave ramifications after the 2027 Assembly elections.
Article 24 of directive 2014/40/EU states:
“Member States may not … prohibit or restrict the placing on the market of tobacco or related products”.
It seems to me that, on any reasonable reading of the Bill—as backed up by the former Northern Ireland Attorney-General, Mr Larkin, who has been referred to—it does indeed fall foul of the tobacco products directive.
The Government say that they intend it to apply across the four nations of the UK, that they are confident that this is the case and that we should all be assured by that. But they have given previous such assurances, as has been referred to. They told us in very clear terms that the Rwanda Bill, for instance, would apply throughout the United Kingdom and that there would be no loophole in Northern Ireland, but the Northern Ireland courts inevitably struck that down. They judged not only that it was in breach of the European Convention on Human Rights but that it was disapplied in Northern Ireland. It was not just a declaration of incompatibility but a disapplication of the law in Northern Ireland, because it fell foul of Article 2 of the protocol. The protocol reigns supreme. It is the same in other immigration cases and in the legacy legislation.
There should be no doubt about the importance and width that the Northern Ireland courts are giving to this legislation. It is very clear: the European Union (Withdrawal) Act makes it absolutely explicit. I ask the Minister to outline exactly what the basis is for the Government’s confidence and assurances—and not just to reassert that they are confident or assured that it complies. What is the basis for these assertions and what will they do if, ultimately, the courts strike the legislation down as far as Northern Ireland is concerned?
Will the Minister and the Government give a commitment today that, if, at the end of the day, the courts agree with the judgments or opinions that have been given by learned former Attorney-Generals, they will come back to this House and legislate to override the disapplication? Why do they not adopt the amendments suggested here in this place to reassure everybody that there can be no question or doubt about the legislation’s application across the four countries of the United Kingdom?
Why not remove any prospect of litigation or any disapplication in Northern Ireland? This would give some reassurance that the Government are serious about the matter. A few weeks ago in the House of Commons, Secretary of State Hilary Benn said in response to a question that it was Labour’s aspiration to impose the Bill in full in Northern Ireland. What is the position—aspiration, intention, expectation? What about a guarantee through adopting these amendments?
Lord Johnson of Lainston (Con)
My Lords, I am sorry, but we will have to wait a few more moments for the noble Baroness’s excellent speech, which I know is coming filled with logic and reason.
I want briefly to speak in favour of many of these amendments. I echo the points made by the noble Lord, Lord Dodds, on the importance of the validity of the evidence relating to the TPD. Does the Minister feel that this legislation is in the spirit of the Windsor Framework? It may be technically in line with it, but is it in the spirit of it to have two totally different trading environments on the island of Ireland? I am not sure whether information relating to the potential objections from member states to this is published and can be accessed. What can the Government tell us about the objections and the information that we can gather around that? If the Government will not accept these clear, simple and reasonable amendments, why not?
Creating a smoke-free generation is extremely groundbreaking and novel, fundamentally trampling on the human rights of an adult to make a free decision. This is seismic, though I disagree entirely with it. Many in the Committee believe in this and I have the greatest respect for the Minister, but it is a significant move away from all the liberties that this Parliament and Parliaments over many centuries before us have tried to protect. If we go down that path, it is important that there is true validity, that every option has been explored and that all the legal issues have been thoroughly explored. If not, you will lose the cultural change, which is what this is about. This is not just a technicality, about trying to change the law to reduce some act. It is a huge cultural change, changing the activities of people in this country. If it is done in a nefarious or opaque way and there are further complexities with endless legal challenges, it will lose its impact. It is important that we are open as to where the problems are and that we understand them better. Simply being told that everything is okay is not good enough.
I support the amendment tabled by my noble friend Lord Murray and will follow on from the well-made points from the noble Earl, Lord Russell. The Better Regulation Framework is an important component of how government functions. I challenge any Minister to explain to me what the Better Regulation Framework actually contains; I am afraid that I have never seen an example of it being properly followed. The key component is not just the nature of proportionality, which many laws simply do not fulfil, but the principle around a review of the effectiveness of regulations, their costs and impact. I have never seen a post-implementation review of any regulations; I am sure that they must exist somewhere, but I do not know how useful they are. In this instance, a review must go into the legislation in a very clear way. We must ask how we will assess whether this has been a success and we must establish now what that means. We should also make sure that we have some type of sunset, to ensure that there is a sense of focus.
The noble Earl, Lord Russell, mentioned the costs of implementation. To that I would add—forgive me if I misheard him—the effects on crime; whether the illegitimate marketplace has increased significantly, which we would expect; and whether it has actually worked. The amendment tabled by my noble friend Lord Murray has great logic, because if we were to create a smoke-free generation, surely all these excessive regulations, checks and so on will not be required, as no one will be engaging in tobacco usage of any sort.
I am aware that some of the amendments that we have put down challenge the principle of creating a smoke-free generation. We believe in them but, in this instance, we are looking at pieces of additional legislation that will make the Bill better. If the Government truly believe in their ambitions, our amendments will make them more likely to succeed.
Baroness Walmsley (LD)
My Lords, I strongly support my noble friend Lord Russell’s Amendments 195 and 196. As he said, they intend to support the core principles of the Bill and ensure effective delivery. It is one thing to legislate; it is quite another to deliver and even to implement. I am currently involved in following measures that were put into legislation through the Health and Care Act 2022, which have still not been implemented. We must make sure that things like that are properly implemented.
Whatever the Government’s intentions are now, when the facts change a sensible person changes appropriately, albeit along the same core principles. A number of potential barriers along the way have been suggested by noble Lords as we have debated the Bill, including today, such as an expansion of the illicit market; the possible clever responses of the tobacco industry to get round the intention of the Bill to protect young people and achieve a smoke-free generation; and technical issues such as age-gating, age verification and so on.
Although the Bill gives the Government wide powers to act, my noble friend’s points about having two reviews, to which his amendments would mandate the Government to adhere, would give naysayers confidence that any unintended consequences would be dealt with either by the Government using the powers in the Bill or by introducing further legislation if necessary after the reviews.
I particularly support my noble friend’s inclusion of nicotine use in his request for reviews. Although the use of vapes as a quitting tool has already been shown to be effective, we all know that they have been taken up by large numbers of young people who have never smoked tobacco. However, the industry is still very young and there is still little evidence about the effect of both the flavour additives and the long-term use of nicotine on the young brain and lungs. Over the coming years, that evidence will emerge one way or another. We already know how addictive nicotine is and that it can make people feel stressed, restless, irritable and unable to concentrate. That is problematic for children in school, which is the very reason why sales of nicotine vapes are banned for under-18s, although illicit sales to younger people are really problematic for teachers.
We also know that nicotine leads to short-term increases in heart rate and systolic blood pressure; as I understand it, that is why tobacco pouches are endemic among professional footballers before a match. Unfortunately, this habit is being copied by many of their young fans. Some use several of them, resulting in dizziness, nausea and, in a few extreme cases, fainting. We do not know about the long-term effects of the use of nicotine by very young people, as the research focuses on users of legal age; this is the sort of thing that may emerge over the next few years. As to the future, we will see how well vapes and other nicotine replacement therapies work as quitting tools. We need to be sure that the legislation will respond to this and other evidence.
These two age points are significant since they have been suggested as an alternative by some opponents of the generational escalator in the Bill. Why not, they suggest, simply raise the legal age of sale to 21 or 25? A promise of reviews at these age points will help encourage those people to support the Bill as it stands, so I hope that the Minister will accept these two amendments; I prefer them to the amendment in the name of the noble Earl, Lord Howe, except that I certainly support his reference to small businesses. I am sure that noble Lords will know about these matters from previous debates, but perhaps we could put our heads together before Report.
On the amendments in the name of the noble Baroness, Lady Hoey, regarding the EU’s Technical Regulation Information System and the standstill period that now impacts on the Bill, it is important to note that several EU countries, such as Greece, Romania and Italy, object pretty routinely to all tobacco control legislation in the EU. There is no new information today that is cause for concern regarding this Bill.
On the legal opinion to which the noble Baroness referred, it appears to have been shared with only the Daily Mail—it certainly has not been published—so I am unable to take a view on it; besides, doing so is probably beyond my skill set and pay grade anyway. I just hope that the Minister has good legal advice.
There is a point to be made here, however, about how the UK seems to have found itself in the worst of both worlds, with EU states being able to object to legislation that we wish to bring in to protect the health of our nation but with us having none of the benefits of being a member. That is a point for another debate, though. I hope that the Minister can confirm that any such objections will not be binding on the UK; and that this sovereign Parliament will be able to push ahead with this important legislation.
I turn to Amendment 216 in the name of the noble Lord, Lord Murray of Blidworth. He appears to be expecting a different Administration in the next Parliament; I will leave it to the Minister to reply to the noble Lord’s comments.
Earl Howe (Con)
My Lords, I will speak briefly to this group of amendments, which centre on three linked themes: the need for careful, joined-up policy-making; the need for proper review; and the need for clear accountability on how this Bill will work in practice once it becomes law.
In her Amendment 114B, the noble Baroness, Lady Hoey, directs the Committee’s attention once again to the issue of the Bill’s compatibility with the provisions of the Windsor Framework. I am glad that she has done so because I agree with my noble friend Lord Johnson; with no disrespect to the Minister, I felt that her reassurance on that question in our earlier debate was more of an assertion than a reasoned explanation.
The noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, are quite right that there is still considerable uncertainty and anxiety around the Windsor Framework issue. The noble Baroness quoted the opinion of the former Attorney-General for Northern Ireland, John Larkin KC; I will not repeat it, although I have those words in front of me. Like the noble Baroness, I am very concerned by his unequivocal statements on this question. Surely it is imperative that the Government can clarify exactly how the Bill will work in practice. It is not good enough to say merely that it will work; we need to know how it will work and how the concerns raised by legal experts such as Mr Larkin will be addressed.
An authoritative, independent legal opinion would give us much greater confidence on this point. Indeed, the question of legal compatibility has a direct bearing on the other amendments in this group, which pertain to Northern Ireland; we will listen very carefully to what the Minister says in response to those.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful for the discussion that we have had today on this group of amendments.
Let me start by turning to Amendment 189 in the name of the noble Lord, Lord Kamall, which would require the Secretary of State to publish a review; it picks up on the points that the noble Earl, Lord Howe, just made. I can say, as I have said on previous days in Committee, that the Government will assess the implementation of the Act. This is completely consistent with best practice for primary legislation and for measures implemented by secondary legislation; the department will, of course, publish post-implementation reviews as appropriate.
Similarly, I turn to Amendments 195 and 196 in the name of the noble Earl, Lord Russell, which would require the Secretary of State to publish two reviews on the operational impact of the Bill. These would need to be published when the first group of individuals impacted by the smoke-free generation policy turned 21, then 25. I hope that the noble Earl will be pleased to hear that I am glad to agree with at least the principles behind the amendments. It is crucial that the Government review the impact of any legislation—we are keen to do so—but we need adequate time for policies to be implemented and for their impact to be realised before undertaking a review. As I have said, we have discussed this matter at some length previously.
I agree with noble Lords that we must monitor the effectiveness of our policies in reducing smoking rates and narrowing health inequalities. We have good data on smoking prevalence and differences between groups through sources such as the ONS annual population survey. Also, the department actively monitors uptake and outcomes of our smoking cessation programmes through NHS England data. This allows us to adapt and target our interventions. It also demonstrates how these services can contribute significantly to reducing smoking and addressing health inequalities. We will continue to monitor this data closely as measures are brought in by the Bill. I refer the noble Earl, Lord Russell, to HMRC estimates on the size of the illicit market. These estimates are made through tobacco duty gap estimates. We will continue to monitor data on the illicit market following the introduction of new policies in this Bill.
Amendment 216, tabled by the noble Lord, Lord Murray, would mean that large parts of the Bill, including age-of-sale and sponsorship provisions, would expire after five years. Also, to avoid the expiry of provisions, it would require the Secretary of State to consult on and lay new regulations each year, and that any regulations made under the Bill regarding packaging and displays would also expire after five years. We had a long debate on the very important matter of impact assessment earlier in Committee. I will not repeat the points that I made there.
However, as noble Lords have heard throughout this debate, smoking is the number one preventable cause of death, disability and ill-health, costing our society some £21.3 billion every year in England alone. I also remind the Committee that this landmark legislation will be the biggest public health intervention in a generation. Our intention is to protect children from harm and break the cycle of addiction and disadvantage. The amendment would mean that large parts of the legislation would automatically cease after five years, and at one-year intervals following that. That could result in gaps in the law, creating legal uncertainty for businesses and consumers alike, and leading to harmful and highly addictive products becoming widely accessible.
Turning to Amendment 200, tabled by the noble Baroness, Lady Hoey, unfortunately I will disappoint her by repeating what I said at Second Reading—which she faithfully quoted—and which I have also said on previous days in Committee. The Government are content that measures in the Bill which apply to Northern Ireland are consistent with the obligations under the Windsor Framework. On the broader sovereignty points raised by the noble Baroness, the noble Lords, Lord Johnson and Lord Dodds, and the noble Earl, Lord Howe, I undertake to write to them about these important matters. However, we are concerned that this amendment would put us in breach of international law. Although I am repeating myself, it is important to say that the Government’s position remains that the Bill will apply across the United Kingdom. It has been developed in partnership with the Scottish and Welsh Governments and the Northern Ireland Executive.
The noble Baroness, Lady Hoey, also tabled Amendments 114B, 138A and 201A. While I am sure that I do not need to reiterate this to noble Lords present, I hope the Committee will forgive me for reminding us all about the harms of tobacco. In Northern Ireland, the Department of Health reports that tobacco claims around 2,100 deaths per year. That is why all four nations are committed to creating a smoke-free generation, so that anyone born on or after 1 January 2009 will never be legally sold tobacco products. As others have done earlier in the Committee, the noble Baroness raised the point about countries having different age restrictions in respect of sale. It is the case that all countries, not just those making up the United Kingdom, have different age restrictions. As I have outlined, our aim in the Bill is to protect future generations and, specifically, to have a complete change of culture in how smoking is regarded, while breaking that cycle of disadvantage and addiction.
In response to the noble Lord, Lord Murray, and the noble Baroness, Lady Hoey, again, I am aware that I am repeating myself, but it is important to do so. The Government consider that in drafting the Bill, they have considered all their domestic and international obligations. We know the tobacco industry has a history of arguing that EU law prevents the adoption of tobacco control measures. That is a very common tactic in disrupting tobacco control legislation.
I am grateful to the noble Baroness, Lady Walmsley, for the point she made about legal opinions. Legal opinions indeed abound, and I understand why noble Lords are raising them, but it is not for me to engage in discussion about their merits or otherwise.
I can confirm that we expect the Bill to complete its passage within this parliamentary Session. There has been reference to the TRIS system, and I should emphasise that it is not an approval process, but I can confirm the point about the progress of the Bill. I hope that noble Lords will feel able to withdraw or not press their amendments.
Baroness Hoey (Non-Afl)
I thank the Minister for her response. I am not sure that I got a reply on the legal aspects. This is not about how terrible smoking is in Northern Ireland; it is about whether we can have the Bill in Northern Ireland. The Minister, while being very gentle, attempted to answer some of the points about the legal situation. It is absolutely clear that we need an official government legal opinion. If we cannot even get the Attorney-General, the noble and learned Lord, Lord Hermer, to respond to a letter and say something, what is the point?
I am really grateful to the noble Lord, Lord Murray, for reminding me that the noble and learned Lord, Lord Hermer, has the position of Advocate-General for Northern Ireland. I looked up what his role is, and it says he is the chief legal adviser to the Government of the United Kingdom on Northern Ireland law, yet he seems not to want to talk about this. I genuinely find it amazing. I just hope that the Minister will take this issue back. I presume that she has seen the legal opinion by the noble John Larkin, KC—he should be noble but he is not. Has she read his legal opinion?
Baroness Merron (Lab)
My Lords, I have not taken a legal eye to it because I do not have a legal eye to do so. I would not wish to inflate my legal expertise in this regard; it is a matter for my colleagues to do that.
Baroness Hoey (Non-Afl)
I fully understand that the Minister does not want to do that. However, I would have thought that, if the Attorney-General is telling me that I have to refer to her on this, he would at least have sent her the document.
Baroness Merron (Lab)
I thank the noble Baroness. To reiterate what I said at the beginning, I am very pleased to write to noble Lords about the broader points being raised. I will of course attend to the points that the noble Baroness has raised.
Baroness Hoey (Non-Afl)
I will not push that any further; it speaks for itself.
I thank all noble Lords for their contributions, and I thank the noble Earl, Lord Howe, and the noble Lords, Lord Johnson and Lord Dodds, for their support. It is important that we get to the crux of this very soon, because it will end up in the Supreme Court if something is not sorted out quickly. I appreciate that the Minister has said the strongest words yet, saying, “It will apply”; I do not think anyone else has said that before. I hope that she will be able to get us a proper opinion as to why the Government think it will apply when everyone else—most legal experts—seems to think that it will not. Then, we can look at this again on Report. I beg leave to withdraw my amendment.
Lord Udny-Lister
Member’s explanatory statement
This amendment changes the mechanism by which the Secretary of State may make provisions to guidance.
Lord Udny-Lister (Con)
My Lords, in speaking to all the amendments in this group—Amendments 140AA, 140C, 140D, 140E, 147A and 147B—I seek your Lordships’ support to ensure that the Bill is both proportionate and evidence-led and that we do not undermine the considerable effort made over the past few decades to help adult smokers quit.
In tabling these amendments, I seek to ensure that the Bill has the ability to protect young people without abandoning support for adult smokers who are trying to quit. The quiet success of British public health policy over the past decades has been the principle of harm reduction through individual choice, and central to this has been how this country has led the world in promoting alternatives to traditional smoking.
As a result of this multiagency and industry approach to tackling smoking, from nicotine replacement therapies to the state-sponsored rollout of e-cigarettes, smoking rates have fallen faster here than in almost any other country. The data speaks for itself: in 2023, just 11.9% of UK citizens smoked, which is down from 20.2% in 2011. I fear that this progress risks being undermined if we allow our regulatory processes to become too rigid and too slow to adapt to innovation and behavioural trends. Currently, this Bill fails to distinguish adequately between combustible tobacco and less harmful alternatives. I worry that, unless these amendments are agreed, we will unintentionally create perverse incentives that could drive consumers back to smoking cigarettes—the very outcome that I believe the Government wish to prevent.
In summary, through Amendment 140AA, I seek your Lordships’ support in replacing rigid regulation with flexible guidance. In doing so, the aim of this amendment is to set conditions under which the Government have the ability to set informed expectations without overregulating legitimate harm reduction tools, which have so far proven themselves invaluable in supporting adult smokers to quit. Furthermore, I hope that, through this amendment, we can reduce any future bureaucratic delays that could stump the rollout of fast-evolving vape technologies. I put it to the Committee that this amendment would support proportionate state oversight while safeguarding consumer choice and innovation.
Continuing on this theme, Amendments 140C and 140D seek to achieve the same while reinforcing that, in this technical policy space, Ministers should guide rather than dictate. Both amendments would offer businesses clarity while ensuring that there is space for the Government to guide and advise. In Amendment 140C, I seek the Committee’s support in preventing overreach through secondary legislation that would, I believe, stifle the vaping and heated tobacco sectors.
In Amendment 140E, I seek to strengthen public confidence in this Bill by showing that there is fair and balanced consultation. Legislation of this scope should not be passed without adequate consultation. Through this amendment, I am seeking to place a requirement on the Secretary of State to consult manufacturers, retailers, adult users and other stakeholders. Given how this Bill intends to curb individual liberties, the only way in which the Government can seek to get the public onside is through co-design and properly understanding the views and the practical challenges. Unless this amendment is agreed, there will remain a blurred line between smoking and harm reduction. I put it to the Committee that the Government have a duty to prevent a one-size-fits-all approach that would, I fear, push people back towards smoking.
Amendment 147A seeks, in a similar way to Amendment 140AA, to replace rigid regulation with flexible guidance. I tabled this amendment as it would allow the Government to act swiftly, as trends change, through allowing for agility in the setting of advertising and presentation standards.
Finally, I shall speak to the last amendment in this group: Amendment 147B. In it, I again call for consultation. I am seeking to balance responsible marketing with adult consumer freedoms. Through this amendment, I seek to send a clear message that the target of harm reduction products is smokers seeking to quit and that, therefore, advertising should be limited and controlled in order to protect children.
Collectively, these amendments balance agility with accountability by providing proportionate oversight as opposed to overly prescriptive control. I hope that the Government will recognise the constructive nature of these amendments, especially as they seek to ensure transparency and engagement with the most affected and to provide a clear differentiation between cigarettes and safer alternatives. I beg to move.
Baroness Northover (LD)
My Lords, the amendments in this group draw attention to a practice that rightly causes outrage—the inclusion of images on vapes that are used to market them to particular groups, most often children. There are images of vapes that feature, for example, characters from “The Simpsons” and other popular TV shows. Vapes should be tools for smoking cessation. My noble friend Lady Walmsley referred to that earlier and noble Lords appear to agree. I am glad that the noble Lord, Lord Udny-Lister, commends the public health progress that we have made in combating smoking. Vapes should not be children’s toys. However, as my noble friend Lady Walmsley has pointed out, vapes cannot yet be regarded as risk-free.
Earl Howe (Con)
My Lords, through these amendments my noble friend has issued a challenge to the Government which I think is extremely welcome. The challenge is to explain why the objectives the Government are seeking to achieve through Clauses 89 and 93 are achievable only via the heavy hand of prescriptive regulation rather than by less burdensome means. Is there a role for guidance as a substitute for regulation, and might there be merit in challenging manufacturers and others in the supply chain to take direct responsibility for the design of their packaging within certain parameters?
The Minister will probably say when it comes to the tobacco giants—whose ways, alas, we know from of old—that that kind of aspiration is a somewhat forlorn hope. But what if regulation, instead of being enacted willy-nilly, were used by the Government as a sword of Damocles hanging over the various arms of industry? Has anyone actually spoken to manufacturers of nicotine products or vapes to see whether they would entertain the idea of avoiding regulation by agreeing a responsibility deal with the Government whereby, in designing their packaging, they did so ethically, in a way that avoided including imagery of obvious appeal to young people, or colours and fonts that serve to glamourise the product contained inside? That idea sounds a whole lot less complicated than drafting regulations in inevitably minute detail, which could easily become quite a difficult exercise. A certain amount of commercial freedom would thereby be retained by manufacturers, along with some scope for market competition, which would be another incentive for playing by the agreed rules.
My noble friend’s amendments return us to themes we have touched on already during Committee: questions of proportionality, consultation and the need to ensure that the framework we create is both evidence-based and appropriately targeted. I am particularly supportive of Amendment 140E, which again highlights the importance of engaging with retailers and manufacturers before new provisions are introduced. It is an amendment which reminds us that we are not dealing with a single homogenous group of products. There is a wide spectrum here, from combustible cigarettes through to heated tobacco, vapes and other nicotine products, and as each of them carries a different level of relative harm, those differences should be recognised, both in consultation and in how the law ultimately treats each one of those products.
I therefore hope that the Government will give serious consideration to the intent behind these amendments, and that the Minister can set out how the Government are meeting the challenge my noble friend has issued: the need to explore whether we can achieve a set of desired ends by the least burdensome route, by proper engagement with stakeholders and by recognising the distinctions between products that the Bill has chosen—rather too often, I am afraid—to lump together.
Baroness Merron (Lab)
My Lords, I start by thanking the noble Lord, Lord Udny-Lister, for bringing these amendments forward, and I thank all noble Lords for their contributions today.
I should start by providing clarification that I hope will be helpful to the Committee. The Secretary of State is already able to issue guidance in these areas. However—I particularly make this point to the noble Earl, Lord Howe, who I listened to closely—here is the problem. Guidance is not enforceable, as he is aware. Instead, we would have a voluntary system that industry could choose whether to comply with. I am also grateful to the noble Baroness, Lady Northover, for her support in the arguments I am about to make.
The reality is that industry is already able to choose to package its products in a way that does not appeal to children; it could already be doing that now. There are some companies that are to be credited for following this line of not appealing to children, but the fact is, as the noble Baroness, Lady Northover, said, that we see far too many vapes marketed alongside cartoons and other imagery that can only be described as focused on young people. It is therefore appropriate and necessary for the power to make regulations to remain.
The noble Lord, Lord Udny-Lister, referred to heated tobacco. We had an extensive debate on the tobacco products in scope, including heated tobacco, on a previous day in Committee, so I will not take up any more of the Committee’s time on that.
As for consultation, Clause 109 already requires the Secretary of State to consult before making any regulations in Part 5. I can assure the noble Baroness, Lady Northover, that we intend to consult on introducing restrictions on tobacco, vaping, which she spoke of, and nicotine product packaging as soon as possible next year. The consultation will be open to all, and we will listen very carefully to the views and evidence put forward by stakeholders.
Amendment 147B is also not needed. Clause 93, on non-compliant images, is intended to stop images being published of products that do not meet the packaging and product design requirements that could be specified under Clauses 89 and 90 respectively. Those clauses already allow the Secretary of State to restrict the use of imagery such as cartoons and images that would appeal to young people. There is therefore no need to amend Clause 93, on non-compliant images. I hope that the noble Lord feels able to withdraw his amendment.
Lord Udny-Lister (Con)
I thank everybody who has taken part in this debate. I shall return to this argument in a later group, so I will leave it at that and beg leave to withdraw the amendment.
Lord Udny-Lister
Member’s explanatory statement
This amendment empowers ministers to regulate the design and interoperability of products in order to prohibit the sale of very high puff count vaping devices.
Lord Udny-Lister (Con)
My Lords, my noble friend Lord Mott is unfortunately ill, so with the permission of the Committee I shall move this amendment for him. I have made a few notes of my own, so this is my speech, not his, but I feel there should be a debate on the amendment, which I fully support, as Ministers should be afforded the powers, through the Bill, to regulate the design and interoperability of products, in order to prohibit the sale of very high puff count vaping devices.
The Committee should note that this amendment is entirely necessary to prevent the proliferation of the very high puff count vapes that are currently flooding the UK market and causing a lot of concern for enforcement bodies, teachers, parents and health professionals, a point that has been made previously. There are documented cases of children being hospitalised because of illicit high puff count vapes, and according to one trading standards report that I read, officers seized a vape that was seven times the legal limit, containing over 9,000 puffs. The scale of the challenge is stark. Of the 13.5 million vapes purchased each week, it is estimated that some 3 million are big-puff devices, and nearly half of all 16 to 34 year-olds who vape are using these devices.
What concerns me is that, often, these devices are deliberately engineered to circumvent regulation. Often, they present the superficial appearance of being reusable, yet they rely on the same non-replaceable mesh coils that lead to their disposal once the coil burns out. I note that Defra has already issued guidelines on what constitutes a genuinely reusable vape but, every day, irresponsible manufacturers are ignoring this advice, and it is therefore time that we put this on to a statutory footing.
Lord Moylan (Con)
My Lords, I shall speak to my Amendment 144 in this group. Before I do so, I express my support for the argument made so eloquently by my noble friend Lord Udny-Lister on behalf of my noble friend Lord Mott. The amendments in this group should be relatively uncontroversial because we are all, I think, pushing in the same direction, and one of the key features of where we are going is the protection of children, on which we are all united.
My amendment relates to an area where the Government have misfired slightly in drafting the Bill. They seek to regulate the flavours of vapes. There is a most intriguing further amendment in this group, in the name of the noble Earl, Lord Russell, which seeks to tease out what the Government mean by the “flavour” of a vape. Both he and I are trying, I think, to come at the question of flavour as distinct from the description applied to that flavour. My amendment would substitute the word “descriptors” for the word “flavour”.
I speak as a vaper. I have vaped—not smoked—vapes that are described on the packet as “blueberry ice”, “mango ice”, and things of that sort. I can say immediately from my experience that none of them tastes like what they say. I can assure the Committee that the vape called “mango ice” does not bear any resemblance to anything that you could describe as a mango, and very much the same can be said of blueberries and so forth. I like eating blueberries—they are very good if you keep them in the fridge—so I know what they taste like. I like mangoes as well, but they do not taste like these vapes.
I think it fair to say that what we really want to control is the description applied. I will take this in two parts: first in relation to children and then in relation to adults. It is obviously the case that a descriptor can be applied to a vape that is designed to induce—if not seduce—a child to smoke a vape. If I saw something on the shelf described as “bubblegum mango”—I am not a marketing man, so I may not have chosen the best example—I would think that that descriptor was designed to appeal to a child. The Government should be able to regulate the descriptor on those vapes so as to eliminate descriptions which are designed to—or may inadvertently—appeal to a child. But that is not the power taken in this clause; it is a power to regulate the flavour, which, as I say, is both subjective and often at some distance from the descriptor that is applied.
The Minister may say, “I take your point on that, but I still want the power to regulate flavours because I am thinking now about adults”. Adults can, of course, see past descriptors. Most adults are not likely to find much appeal in something describing itself as bubblegum ice, bubblegum mango or whatever; none the less, there might be flavours that adults who do not like the taste of tobacco are seduced by, in the same way as menthol cigarettes were used to appeal to adults who did not like tobacco, and so on. I can see that.
However, it is also important to remember that vapes are a very important smoking cessation tool. It is clear from evidence from the industry that having a range of different flavours available makes them attractive to adults—not in a way that seduces them into wickedness, but that makes it easier for them to use vapes to give up smoking. I am trying to be helpful, and I am sure that the noble Earl is seeking to be helpful as well. We both agree on the protection of children, but we think that the Government have—rather lazily, perhaps—aimed at the wrong thing here with regard to flavours. It is about the marketing. It is the descriptor, rather than the flavour, at which the Government should be aiming.
I hope the Minister will accept my amendment in the spirit in which it is intended: that of being helpful. I also hope that she will agree to look more closely at this matter and perhaps come back with a more subtle and nuanced amendment on Report.
Earl Russell (LD)
My Lords, I shall speak to my Amendment 146 on vaping devices, and I thank my noble friend Lady Walmsley and the noble Baroness, Lady Bennett of Manor Castle, for adding their names in support of it. I have been slightly outed already but, to be clear, this is a probing amendment. However, it touches on an important and genuine issue: regulation and the Government’s intention to define “flavour” in a vaping product.
Before I speak to my amendment, I want to be clear: I fully recognise the need to prevent young people vaping. I support age restrictions; changing names; making sure that vaping products are not appealing; ensuring that such products are not marketed; ensuring that they are hidden in shops and counter displays; descriptors; and every other tool in the toolbox to make sure that every trick big tobacco can come up with to put these products in the hands of young people is restricted. However, I firmly believe that, if this Government or a future one used these powers to ban or severely restrict vape flavours, it would be a retrograde step in the fight to stop smoking. As the noble Lord, Lord Moylan, said, it is the flavour in vapes that reminds ex-smokers just how nasty cigarettes really are when they lapse—and ex-smokers surely do lapse.
As we have heard throughout the passage of this Bill, there are strong and legitimate concerns about the rise of vaping among young people. We have just passed a crossover point whereby more young people are now vaping than smoking, so I absolutely share those concerns. Nobody in this Room wants to see young people taking up vaping; nor do they want big tobacco to be able to start a whole new industry for a whole new generation, through which vaping is marketed at our young people.
However, if the Government are genuinely serious about taking this problem on, they need to do so through effective regulation, and that must start with clear definitions. My amendment is tongue-in-cheek in its approach, but it highlights a serious issue: the Government have created a bit of a heffalump trap for themselves here. I remind noble Lords that, as drafted, the legislation says that the Secretary of State may, through regulations, make provisions about the flavour of relevant products, and that the regulations may make
“provision for a determination to be made by a person authorised”.
My proposed new clause does not prejudge what those definitions should be. It simply asks a very reasonable question: by what criteria will the Government determine that a vaping product has a flavour? Once we start looking at this, the situation becomes absurdly complicated. This might be the philosophical background in my ancestry, but many vapes on the market today use a combination of chemicals that exist not to add fruit or sweet flavours but to mask the harsh taste of nicotine. Some add traces of methanol or cooling agents that are technically flavourless, but they change the sensory experience of those who vape. I do not know whether those will count as flavours. Under what threshold would they be counted? Which chemical compositions or flavours in these products would not be? Then there is the question of packaging, as we have heard, which brings up the descriptor point. Flavour is as much about perception as what might be contained in the product. If a vape has “mango ice” or “blueberry ice” on the package, but has no flavour, is that a flavour?
These are major complications, and I believe fundamentally that the route the Government are going down will end up in poorly drafted law, which will be hard to enforce. It will not work or do what the Government set out to do. It will lead to legal complication and challenges, and that is not good for the aims of the Bill, which I support. There really could be practical consequences and they go quite far. Concerning manufacturers, how will they comply with this when the Government are not clear? How will small retailers ensure that they are compliant with the terms of the legislation? Trading standard officers who have to enforce this stuff will find it complicated to do so.
I say again that for many adult smokers who turn to vapes to give up, as I think we have heard, the flavour element in the vapes is the thing that keeps them from going back to tobacco. There is strong evidence on this point, from Public Health England and numerous international studies, that it is about the wide availability of these flavours so that people can make a personal choice. None of them taste like their descriptor, but people can find a flavour that works for them personally. I just do not want the Government to act too harshly and crudely in this area and end up by creating perverse consequences, which are completely contrary to the stated intentions of the Bill.
I absolutely want to keep this stuff out of children’s hands. I support every other measure that the Government are taking in the Bill, but I come out strongly against this issue of controlling and restricting flavour. My amendment is really a tongue-in-cheek way of asking the Government to think again on it.
Turning briefly to the other amendments, I thank the noble Lord, Lord Mott, for his Amendment 142. I now understand what his amendment is about: that despite the ban, it is still basically a disposable vape. It is used once and chucked away but it has 1,600 puffs in it. These things are cheap; again, they are marketed at children and disposable, so they are e-waste. I had an amendment earlier about creating minimum pricing for vapes but I think that, fundamentally, the Minister misunderstood what I was doing in that amendment. She said that it would make vaping more expensive than smoking, whereas that is fundamentally not true, because it is about buying a base unit that might last for three or four years. Although you would be paying £25, that base unit would stay with you for a long time and by doing it in that way, you are not needlessly generating e-waste. I would like to revisit that with the Minister prior to Report, but I basically support that amendment. These devices should not be in the hands of our children; they are absolutely designed to get children addicted to nicotine. They are not good for the environment, so let us get rid of them.
I absolutely agree with Amendment 144 on descriptors; I think we are on the same page and speaking about the same thing. My amendment might be a bit nuanced and tongue in cheek but we share an opinion.
Baroness Fox of Buckley (Non-Afl)
My Lords, I shall speak in defence of flavours, especially regarding Amendments 144 and 146. Over the last five years, 21% of adult smokers have quit smoking. Nearly half of them used vapes as part of that successful quit journey. I am one of those people. I started with single-use vapes, but they got banned, so I now use the replacements, which are used as much as single-use vapes. They have been crucial to millions of adults who have done the same. Their attractions are ease of use, convenience, prevalence in a wide range of retail outlets and, yes, flavours. They made the distinction from smoking clear for me. As the noble Earl, Lord Russell, explained, that becomes important. I was able to switch to suit my taste. I was trying to move away from the taste of tobacco—that was the point.
Lord Lansley (Con)
I wanted to intervene just to say one or two words in support of my noble friend Lord Moylan’s amendment. In a sense, it challenges the Government to explain what they are trying to achieve, and if that is to regulate flavour descriptors, that is exactly what we should put into the Bill. I think the industry is very aware of the need to control flavour descriptors, because certain descriptors can be intentionally directly attractive to youth vapers and children, and the industry knows it needs to act on that. I will talk about that a bit more later.
We should use this amendment and this debate to find out what the Government are trying to achieve, and I hope the Minister will give an explanation. If the intention is to go down the path of, for example, the Australians or the New Zealanders, with a very narrow control of vape flavours, we run exactly the risk that the noble Baroness, Lady Fox, was just talking about. As she said, the academic research on restricting vape flavours shows that that leads to vapes not being as effective at smoking cessation as we want them to be. That is an important consideration.
I could not explain it to anybody in detail, but I remember how the uncle of a good friend of mine when I was a boy was a flavour scientist at Bush Boake Allen, now part of International Flavors & Fragrances, and there is a very precise relationship between the chemical additives that can be added to products. Of course, there were no vapes in those days; he was working on crisps. On one occasion we went to their house, and they provided for us the very first occasion on which anybody ever tasted prawn cocktail-flavoured crisps. That was a remarkable moment in one’s early life, never to be revisited.
The point is that the relationship is modulated by these companies extremely carefully. So, it is possible to regulate it, but it is quite an intrusion into an industry to think that we should need to do this. I suspect that my noble friend is on to exactly the right issue in saying that, if we regulate the descriptors, we will have done the thing that it is most important for us to achieve.
Baroness Walmsley (LD)
My Lords, I support my noble friend Lord Russell’s Amendment 146. It seems to me both sensible and essential to set the groundwork, as he put it, for further work on defining vape flavours—keeping in mind at all times the Government’s intention, which we support: to allow vapes as an effective, proven tool in quitting smoking tobacco while at the same time addressing the egregious activities of the tobacco industry vis-à-vis young people. It has used colours, flavours, images, packaging and marketing to encourage young people who have never smoked to take up vaping. We know that, once hooked on the nicotine in these products, it will be very difficult for these young people to wean themselves off them when they want to. We also know that evidence of real and lasting harm will continue to emerge over the next few years, and that is why the work to define flavours is so important and why I support this probing amendment.
I am one of those nerdy people who, when they go shopping at the supermarket, takes a little magnifying glass with them. I strongly suspect that the “banana ice” vape of the noble Baroness, Lady Fox, and the “mango ice” vape of the noble Lord, Lord Moylan, have never been within five miles of a banana or a mango, and that anything called “raspberry fizz” will never have been within five miles of a raspberry. These things are put together. They do not contain any raspberry, mango or banana; instead, they contain a whole mix of chemicals. It might be more honest to label them with, “This vape tastes a bit like banana, but it contains the following 15 chemicals”, but you cannot do that, can you? Hence the Government’s problem.
As with the other amendments in this group, Amendment 142 would open the way for the Government to include big-puff vapes and other technical measures in regulation—perhaps things such as age-gating at some future point—but it would not mandate them to do so. So, I would certainly not oppose it, although the Minister might tell us that the Government can do all this without the amendment.
Amendment 144 could inadvertently restrict the Government’s opportunity to limit the number of flavours. I would not want to do that, so I do not support this amendment, but I would like to see the Government allow a reasonable range of flavours to help people who use vapes or who are quitting smoking, for the very reason indicated by the noble Baroness, Lady Fox: smokers like the fruity flavours, which certainly help them. That would be a very good thing. I really do think that allowing only a tobacco flavour would be a bad idea, because tobacco is the very thing that smokers want to get away from.
I very much look forward to the Government’s response, particularly to my noble friend’s amendment.
Earl Howe (Con)
My Lords, I need to start with some apologies to my noble friends Lord Mott and Lord Udny-Lister because I have to express a measure of caution on Amendment 142, which would increase the power of Ministers to make regulations on the sorts of products that can be banned by extending the scope of Clause 90 to include design and interoperability.
Although I recognise the intent behind the proposal, the problem here is nailing down exactly where the truth lies. One hears from a number of people that so-called high puff count vapes are inherently harmful and are, therefore, to be regulated or prohibited. My noble friend Lord Udny-Lister certainly indicated that that was his view, but it is nevertheless striking that the briefing I received from ASH regards this amendment as unnecessary. If the Committee will forgive me, I will just read out a section of it:
“Concerns regarding larger big puff products may be unfounded. There is no current evidence to suggest that these might increase harms or pose additional risks from products containing less liquid. It is possible that larger-volume products could have benefits in terms of satisfying consumer demand for longer-lasting products, reducing environmental impact and increasing the price point of initial purchase without unduly raising the price per puff for those using them to quit smoking”.
I find that a little baffling, and it would be very helpful if we could hear from the Minister the official view of these high puff count devices.
Baroness Merron (Lab)
My Lords, I am most grateful to noble Lords who tabled amendments in this group. I thank all noble Lords for their contributions to the debate.
I am sorry to hear that the noble Lord, Lord Mott, is unwell, and I am sure we all wish him well. On his Amendment 142, which was moved by the noble Lord, Lord Udny-Lister, restrictions currently set a 2-millilitre tank size limit, and a 10-milliletre refill tank size limit for vaping products. Over recent years, manufacturers have developed devices where multiple refill tanks are attached to the device itself. I assure the noble Earl, Lord Howe, and other noble Lords that the Bill already contains powers that allow us to regulate the nature and amount of substance that may be released into the body of a person using a relevant product, which includes vaping devices and the emissions released by such products. This includes restricting not only the nicotine in the tank but the nicotine that can be emitted in the vapour.
My next point is key to a number of points made in the helpful debate today: on 8 October we launched a call for evidence, which runs until 3 December. That, to me, is crucial in informing the development of future regulations under the Bill, which noble Lords are correctly asking for. We are seeking evidence to ensure that all nicotine-containing products have safe and appropriate levels of nicotine.
I understand the spirit in which Amendment 144, spoken to by the noble Lord, Lord Moylan, and Amendment 146, spoken to by the noble Earl, Lord Russell, have been tabled and the points that were made. I also heard clearly the concerns expressed by the noble Baroness, Lady Fox. We agree that descriptions of flavours are part of the appeal of vapes to children. The Bill allows us to regulate flavour descriptors. However, evidence suggests that children are attracted to the fruit and sweet flavours of vapes, both in their taste and smell, as well as how they are described.
Lord Lansley (Con)
Can the Minister tell me exactly where in the Bill the power to regulate flavour descriptors is to be found?
Baroness Merron (Lab)
I am sure that I will be able to do that, if the noble Lord will allow me to continue in the meantime.
What we do not yet know is the long-term harms of certain ingredients or flavours. This is why we need to be able to limit the flavours themselves, with the ability to respond to emerging evidence or scientific advances in the future, as well as how flavours are described. I can refer the noble Lord, Lord Lansley, on the point that he raised to Clause 91, which says:
“The Secretary of State may by regulations make provision about—”
et cetera. I hope that will be helpful to him.
I understand the concerns that were raised about how restrictions on flavours can impact former smokers who have switched to vaping. We absolutely recognise that vape flavours are an important consideration for adult smokers, and we will carefully consider restrictions to avoid any unintended consequences for those who seek to quit smoking. Our aims for future regulations on vape flavours, as well as for the wider regulations on vapes, are to reduce the appeal of vapes to young people while ensuring that they remain a viable quit aid for adult smokers. I heard the concern of the noble Earl, Lord Russell, about ensuring that the legislation is right. I am sure that all noble Lords share that view.
The published call for evidence includes flavours of tobacco, vape and nicotine products, to ensure that we are considering the best available evidence. We will also review the approaches taken by other countries, to learn the lessons and to consider whether they are appropriate for the UK. I give an assurance, as I have done before, that we will then consult on specific proposals before making regulations.
On the point about international comparisons—the noble Lord, Lord Lansley, raised a certain aspect of them—there are varied determinations on what a flavour is. For example, in the Netherlands, there is a specified list, and, in Finland, there is a restriction on all characterising flavours. That is why the call for evidence and the subsequent consultation are so important.
Lord Moylan (Con)
The Minister refers to “characterising flavours” in Finland. That sounds to me like a descriptor, rather than anything about the composition. I know that these appear to be subtle distinctions but they are not—how something tastes and how it is described are two very different things. The question of characterisation seems to fall into the same confusion that the Government are in.
Perhaps this is an appropriate moment, so that I do not interrupt again later, to add that the confusion is evidenced by what my noble friend Lord Lansley and I have found in reviewing Clause 91; I am not very good at these things, but my noble friend is a former Secretary of State for Health and, as I have seen on many occasions since joining your Lordships’ House, a consummate legal draftsman. I suggest that the Minister’s support team does the same, because there is absolutely nothing in the clause that does what the Minister thinks it does. There is no reference to the description of flavours. There is reference to the flavour itself and to determining what the flavour is, but there is nothing about descriptors in that clause. I would have felt rather foolish tabling an amendment to the clause if the content of my amendment was already there.
Baroness Merron (Lab)
Perhaps I might assist by referring noble Lords to Clause 89, which obviously precedes Clause 91 and covers descriptors. I am very happy to review the points made by noble Lords in this regard; I will of course write to them in order to provide clarity.
Lord Lansley (Con)
May I make a suggestion? It seems that we are trying to find out whether it is the Government’s intention to regulate flavours—that is, to determine which chemical additives can or cannot be added to vapes, which would end up determining what flavours are allowed—or whether it is the Government’s intention to regulate the description of flavours, meaning which flavours are to be “described”, “characterised” or any such word. We do not yet know what the Government’s intention is. If the Government want to retain the power to do both, I submit that they need to specify in Clause 91 that they will have the power to do both.
Baroness Walmsley (LD)
Before the Minister answers that, may I ask her another question? Which agency regulates and licenses the various flavours used in vapes? Is it the Food Standards Agency or some other agency?
Earl Russell (LD)
I apologise but I, too, want to make a brief point. I welcome the fact that the Government are conducting a review and collecting evidence; that is good. I hope that those things will be used to make fundamental, good policy. However, there is a tension here because we could have a situation where flavours are appealing both to children, whom we do not want to take up vaping, and to ex-smokers, whom we do not want to go back to smoking because we have taken flavours away. What I have not heard the Minister say is that there will be an examination of price in that gathering of evidence. Doing more to raise the price of vapes, keeping them out of the territory of pocket money, is important in making sure that young children do not get access to these products. I encourage the Government to include that in their call for evidence.
Baroness Merron (Lab)
I thank noble Lords. On that last point, made by the noble Earl, Lord Russell, respectfully, I feel that we have covered that area at considerable length. I understand how strongly he feels about it.
On the point made by the noble Baroness, Lady Walmsley, currently, it is the MHRA that regulates vapes.
More broadly, I reiterate that I will be pleased to write to noble Lords to clarify still further what I have said. Overall, I emphasise that what noble Lords are raising in general are the exact reasons why we have a call for evidence and why we will consult. It is not the right moment to be categoric, but I take the point about noble Lords being concerned about what is permitted in the Bill. On that point, I will be very pleased to write.
Lord Moylan (Con)
I say again that my noble friend Lord Lansley and I have scanned Clause 89 as far as we can. It appears to give the power to regulate almost anything to do with the packaging of vapes other than the description of what is inside it. Brand differentiators, but not flavour differentiators, are covered—that is,
“the markings on packaging (including the use of branding, trademarks or logos)”—
but a mango is not a brand, trademark or logo. The Minister is doughtily defending the text that has been given to her, but it deserves more careful thought before Report. I am grateful that she will write.
Baroness Merron (Lab)
I agree that it needs more careful thought, which is exactly why, rather than discussing the merits of a mango, a raspberry or any other matter, I will be pleased to look at the points about which noble Lords are concerned; I want to assist in this regard. I am grateful for the reflections of noble Lords in looking at the Bill, as I have done. However, the best thing at this stage would be to commit this to writing.
I hope that noble Lords feel able to withdraw or not move their amendments.
Lord Moylan
“(5) The Secretary of State may, through guidelines, make provision about the nature and amount of the substances that may be released into the body of a person using government funded stop smoking services which entail—(a) vaping products;(b) nicotine products.”
Lord Moylan (Con)
My Lords, I want to dispose of this very quickly. I must start with an apology because I am trespassing greatly on the indulgence of the Committee; I must also declare a non-interest by making clear that I do not have an interest.
This amendment is very awkwardly and almost misleadingly worded, as it is limited by scope and reasons; I am perhaps trespassing beyond the scope of the Bill in raising this matter at all. That is the first thing I have to say. The second is that I am advancing this argument on behalf of a firm, Allen Carr’s Easyway, which is deeply involved in the smoking cessation business. I have no financial or other interest in the firm; in fact, apart from email exchanges, I have never met the people involved, as far as I am aware.
I wish my noble friend Lord Bethell were here—he does apologise. As a former Health Minister, his experience is that Allen Carr’s Easyway is a firm that does tremendous work in the field of smoking cessation. It produces books and booklets that encourage and inspire people and facilitate them, psychologically, to stop smoking. It also runs seminars and other in-person group sessions. When I gave up smoking three years ago, it was partly with the help of a copy of one of its books, which was given to me as a present by my sister.
It is also—this is perhaps the crucial factor—one of the four different smoking cessation methods recommended by NICE. It is not only recommended: the guidelines for local smoking cessation services which receive government funding say that there are four different smoking cessation methods that local stop smoking services must ensure are accessible to adults who smoke. They are behavioural interventions; medicinally licensed products, including nicotine replacements; nicotine-containing e-cigarettes; and Allen Carr’s Easyway in-person group seminars. However, it is the case that, throughout the country, most stop smoking services do not offer Allen Carr’s support as one of those options; they go for the easy options, if you like, of nicotine replacements and e-cigarettes.
The crucial difference is that, if one stops smoking in the old-fashioned way, one gives up not only cigarettes but nicotine. If, as some of us have found, you move from cigarettes to vapes or other nicotine-replacement devices, you may give up smoking, which may be very good for you, but you do not break the habit or the addiction to nicotine. It is much easier for the local stop smoking services to encourage that path, and so very often they do not follow the NICE guidelines, despite the fact that they are required to.
The Government provide, I believe, about £150 million a year in grant funding for local smoking cessation services. My request is that the Government make it a condition of those grants that all the NICE-recommended methods be supplied by the local smoking cessation service before it receives a grant. I do not expect the Minister to give that commitment at the Dispatch Box today, because of a lack of preparation—I have given her no warning of what I was going to say—but I hope she will be able to write to me and say that that will be a course that the Government will want to follow. If necessary, I am very happy to facilitate a meeting between her and the people from Allen Carr’s Easyway, so that they can describe the good work they do and explain the difficulty they have in reaching smokers through local smoking cessation services, despite the requirement placed on them to facilitate that. I beg to move.
Baroness Walmsley (LD)
My Lords, I shall say a few words in support of Amendment 147 from the noble Lord, Lord Moylan. I think his intention is quite correct for the following reason. Many of those who wish to stop smoking want to be released from the addiction to nicotine altogether, as they did in the old-fashioned way, as he has just said. They do not just want a less harmful nicotine hit. It is an expensive and harmful addiction, particularly for the developing young brain, yet we are told that many young people are becoming addicted to nicotine through vapes and tobacco pouches, and there is no help for them to quit in many places. As the noble Lord said, NICE guidelines list four services that should be available, including behavioural interventions and in-person group sessions, to help people quit, as well as nicotine-containing replacements for tobacco, which are available in most local stop smoking services. I have received a briefing from Allen Carr’s Easyway, although I have never come across the company before.
There is some evidence that some people who manage to stop smoking tobacco by using a nicotine replacement go back to smoking tobacco in the end. Quitting nicotine altogether has been shown to be more sustainable; people go back to smoking less often when they have managed to kick the nicotine habit as well. I assume that that is why NICE has recommended that services to get off nicotine addiction must be offered as well as vapes and patches. I note that, in its guidelines, NICE does not say “should” or “could”; it says “must”.
The ultimate role of NICE is to ensure that people across the UK have access to the most effective and cost-effective treatments and services; that is why it says that all four methods of quitting should be available. It may be much easier, quicker and even cheaper just to hand out patches and vapes—it is certainly much more difficult to arrange behavioural therapies and group therapies—but, for some people who want to quit smoking, it is more effective for them to have behavioural therapy, group therapy and the help of Allen Carr’s Easyway. That company must be good, authentic and of a high quality if it is recommended by NICE.
I certainly support the intention of the noble Lord, Lord Moylan, in his amendment.
Earl Howe (Con)
My Lords, I cannot put it better than the noble Baroness, Lady Walmsley, has just done in relation to the recommendations about Allen Carr’s Easyway, which has been warmly endorsed by NICE in its guidelines. This is one of the four interventions that NICE recommends. The content of those guidelines should now be underlined for NHS smoking cessation clinics, to ensure that, exactly as the noble Baroness said, there is an option for those who do not want to remain addicted to nicotine when they elect to stop smoking.
I hope that the Minister will take this amendment away with her; I am grateful to my noble friend Lord Moylan for raising this issue. I say to him that there is probably another dimension to his amendment, if one takes literally the wording around what constitutes an appropriate level of nicotine in vapes. We have heard from the Minister that there is a power to regulate this in the Bill. However, again, we have a tension here: on the one hand, there are obvious arguments in favour of limiting the strength of nicotine in vapes that are used recreationally; on the other hand, we want vape dosages of nicotine to be strong enough to satisfy the addictive craving of someone who is hooked on smoking tobacco and who does not wish to go down the Allen Carr route. If you make the dosage too weak, the patient will simply revert to their former harmful habits.
My noble friend’s amendment is also useful in the sense that it would enable us to hear from the Minister how the Government propose to reconcile those dual objectives and the potential difficulties that face policymakers in attempting to regulate nicotine strengths. This short debate has brought us to an interesting point in the smoking cessation arguments. I look forward to what the Minister has to say.
Baroness Merron (Lab)
I thank the noble Lord, Lord Moylan, for bringing forward Amendment 147 and thank noble Lords for their reflections on this amendment.
I start by giving the reassurance that the Bill will allow the Secretary of State to continue making provisions about the amount and nature of substances that may be released into the body by vaping and nicotine products. Regulations made under this power will apply to products sold on the market and to those provided through stop smoking services. We will consult before making regulations and will consider restrictions carefully to avoid any unintended consequences on smoking cessation, which I know is of great concern to noble Lords.
Lord Moylan (Con)
My Lords, I am grateful for the support for my amendment from all parties. I am grateful for the sympathetic tone expressed by the Minister as well. Obviously I was not expecting a very full answer at this stage, having sprung it on her to some extent in the way that I did. I just remind her that, although there may be commercial advantage—I do not know about that—she could meet Allen Carr in its capacity as a NICE-recommended service. She also has considerable power over the local stop smoking services, not simply through regulation but also through the conditions that she can attach to funding. I think I heard her say that she will reflect a little bit further on this and possibly write, but, in the meantime, I am grateful for what she says.
I do not think the subject will necessarily stop today, but I think we could take it out of the Bill if she wanted to or we could possibly bring it back later. I think it would be helpful if she was given the space now to give some further thought to it and see whether the department felt that there was an opportunity here for it to do something. In the meantime, I beg leave to withdraw the amendment.
Lord Udny-Lister
“(3A) Before making regulations under this section, the Secretary of State must publish a list of approved providers to undertake a study for a manufacturer.”Member’s explanatory statement
This amendment will provide clarity to manufacturers by publishing an approved list of potential providers who can assist in the undertaking of studies relating to a relevant product or ingredient.
Lord Udny-Lister (Con)
My Lords, in moving this amendment I will also speak to Amendments 148B to 148E and 149A. They follow a very similar theme to an earlier grouping that I spoke on. They seek to support the Government’s ambitions for a smoke-free generation, while ensuring that the legislation is both practical and proportionate. In passing legislation, we must ensure that we are responsive to science and inclusive of expertise and that transparency is not replaced by the opaqueness of ministerial discretion. This grouping therefore should be seen as a constructive route to getting the framework right, ensuring that regulation by the Bill is guided by science, informed by consultation and subject to practical and proper parliamentary oversight.
Through Amendment 148A, I seek to make a very simple yet important improvement to the practical worth of Clause 96. I seek a requirement to be placed on the Secretary of State to publish an approved list of providers who are qualified to undertake the scientific studies that manufacturers are obliged to commission under this part of the Bill. If the Government are serious in their desire to safeguard consumers through this provision, this amendment would provide a mechanism to strengthen this aim, while further bringing transparency and fairness to the process. I further put it to the Committee that such a move would support smaller British firms that are developing lower-risk nicotine products, by giving them the confidence that the laboratories they engage with meet the Government’s regulatory standards.
In pursuing this modest change to the Bill, we are following the established best practice of the global regulatory agencies, from the US FDA to the European Chemicals Agency, both of which maintain formal lists of approved testing bodies precisely to guarantee the integrity and compatibility of data. I therefore hope that this amendment would help streamline compliance and practically support smaller British businesses.
With Amendments 148B and 148D I again seek to ensure that the Bill does not inadvertently drive adult smokers back to cigarettes. These amendments seek to reinforce the principle that regulation should correspond to risk and that we should encourage innovation in safer nicotine products, not penalise them.
Through Amendment 148C, and as a theme that cross-references Amendments 148B and 148E, I ask the Government to accept consultation with manufacturers, retailers, scientists and adult consumers before regulations are made. If the Bill is to succeed in delivering what I believe are the Government’s intended outcomes, we must ensure that there is public trust by demonstrating that any regulations imposed are technically informed. I have tabled these amendments as I am keen to prevent poorly evidenced secondary legislation arising that might have unintended consequences.
Tobacco control policy must be driven by scientific evidence, not ideology, and that is the basis of Amendment 148E. It would ensure that when future regulations are made about the composition or ingredients of nicotine products, they are assessed in a way that is relative to the harm caused by smoking. I put it to the Committee that comparative assessments are already standard across medicine, toxicology and food regulation and that the same principle ought to guide nicotine policy. Amendment 148E would encourage smarter, targeted regulation in a way that focuses efforts where harm is greatest. It would ensure that we continue to distinguish between products that kill and those that help people.
Finally, in this grouping I have tabled Amendment 149A, as we need to ensure more adequate parliamentary oversight and accountability for the ministerial powers proposed in the Bill. One of my overriding concerns with the Bill is that its provisions are wide and, in many cases, open-ended. Through Amendment 149A I seek to preserve the constitutional norm that Parliament grants powers and departments exercise them. Through this amendment the Secretary of State would be required publish the rationale for any discretionary decisions. Beyond maintaining transparency in regulation, I believe that this is needed to protect both industry and consumers from uncertainty and ensure that there is fairness across the UK market. I beg to move.
Baroness Northover (LD)
My Lords, this group contains a number of amendments tabled by the noble Lord, Lord Udny-Lister, which relate to what he identifies as burdens that are potentially being placed on the industry when assessing the harms of products. There is much here that can and should be explored through consultation on this legislation. For example, it is important that clear standards are set for appropriate facilities to undertake testing, but it does not feel appropriate or proportionate to have a set list of providers who can undertake this. That feels like locking manufacturers into a bit of a closed market, although I hear what the noble Lord says his intention is behind this.
I also caution against amendments that seek to compare nicotine products as benign, when compared with tobacco. We have had quite a debate about that this afternoon. Obviously, it can be helpful in assessing whether a particular nicotine product should be used for smoking cessation purposes, but defining it as simply less harmful than tobacco does not mean it would be a good public health standard, as we have heard. Not all users of these products will be smokers, as we have also heard, and we already know that the route to smoking for young people is now often via vapes. We have had quite a discussion of that, and the fact that nicotine is addictive. We have heard how difficult it is to give up nicotine, however much we may wish that not to be the case. It is therefore important to assess the impact on health of nicotine in its own right. The noble Lord may feel that that comparative approach is included in his amendment, but I would be concerned about adding his amendment to the Bill.
Amendment 148C would remove the following provision:
“The regulations must prohibit a producer from nominating an individual without the individual’s consent”.
We feel that should remain part of the Bill.
Amendment 149A refers in effect to delegated powers. I understand the concern about those powers but also why the Government seek wide and flexible powers in the Bill, given what they are dealing with and the fast footwork in this industry. Would it not have been good had the vaping and tobacco industry made sure that nicotine substitutes were targeted only at smokers trying to shed their smoking habits? Who would have thought, as we looked at this a few years back and supported the use of such products for such purposes, that we would be where we are now? But we are—so I hope that the Committee will forgive me for my jaundice on this matter. This ship has sailed; the manufacturers have shown themselves not to be trusted to market them only as smoking cessation tools, and the Bill rightly seeks to protect our children and grandchildren. Waiting for primary legislation to come around again on this, while the industry targets in a new and inventive way so that children get hooked and cannot free themselves from its embrace, is not what a responsible Government should do.
Had the industry proved trustworthy in the past, I would maybe have a different view, as someone who thought nicotine substitution was a useful down ramp for addicted smokers—so I remain unconvinced. Who would have predicted that we would be where we are? This industry is nothing if not inventive, and we should therefore oppose these amendments.
Earl Howe (Con)
My Lords, this group of amendments in the name of my noble friend Lord Udny-Lister raises a number of sensible points about proportionality, transparency and evidence within the regulatory framework that the Bill will establish. Amendments 148A and 148C speak to the question of clarity and accountability, both in research and in representation. They would ensure that everyone—manufacturers, the Government and members of the public—can have sight of who exactly is responsible for carrying out studies on products and who is representing a manufacturer’s interests.
I listened to what the noble Baroness, Lady Northover, said about a closed list. It seems to me that the besetting problem in this entire area is that the general public do not know what information they can rely on. There is an awful lot of myth and misinformation out there, as well as suspicion. By requiring that studies are undertaken by approved providers and that the nominated responsible person has a genuine connection to the UK, these amendments would bring about welcome transparency and help to provide confidence—to consumers and the industry alike—that those undertaking research and providing information are properly qualified and within reach of UK oversight. That principle seems very sensible. I would appreciate hearing the Minister’s thoughts on it.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Lord, Lord Udny-Lister, for bringing forward these amendments in Committee. I am also grateful to the noble Baroness, Lady Northover, for observing that the industry has failed to self-regulate—a view that I share.
Amendments 148B, 148D and 148E seek to impose specific requirements so that regulations pertaining to the testing, study and standard of products and their ingredients take into account the potential to reduce harms, relative to smoking. I am sympathetic to the need to ensure that regulations recognise that vapes and nicotine products are less harmful than tobacco products. As we have discussed a number of times, ensuring that vapes remain an accessible smoking cessation tool has been, and absolutely continues to be, a key consideration in the development of this Bill and future regulations. I assure the noble Lord, Lord Udny-Lister, that the use of powers under Part 5 of the Bill is subject to consultation, to which the industry is of course welcome to respond.
However, the purpose of the powers in relation to product standards, testing and studies pertains to compliance with product standards and safety. As I believe the noble Earl, Lord Howe, said, it is critical that the public can trust that the products on the market are what they say they are and do not pose a risk to health—and that quick action can be taken if they do. I am sure the noble Lord would agree that, for example, vapes on the market must not contain faulty or illicit elements and that if they do, whether they are safer than cigarettes is not the critical issue.
Amendments 148A to 148E speak to the ongoing call for evidence that we launched in October to support the policy development of regulations to be laid under the Bill. This includes seeking evidence on elements of the new product registration scheme, as I have referred to, including on the role of the responsible person and who that responsible person might be. The future registration system will play an important part in enforcing our rules on product requirements to ensure the consumer safety that noble Lords seek, while improving retailer confidence in the products that they are selling, which is also important. We want to hear the views of respondents and consider those carefully before bringing forward more detailed policy proposals. I hope the Committee understands that I do not want to pre-empt the call for evidence and how future consultation might pan out before deciding on the right approach. We need that call for evidence to be met and for the consultation to take place.
On Amendment 149A, I understand the noble Lord’s intention. I can reassure him that any sub-delegation to persons must be set out in regulations. As I mentioned, there is a statutory duty to consult on any regulations made under Part 5 of the Bill. I also remind noble Lords that regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.
The noble Earl, Lord Howe, asked about the Government’s stance on whether research on the harms of products is sufficiently robust. We obviously seek that robustness and continue to monitor the evidence before us. Perhaps most importantly, our commitment to research on harms is crucial. For example, the department has commissioned significant pieces of research into vaping and nicotine products through NIHR. Notably, this includes a living evidence map bringing together international evidence on vapes and nicotine products, including their health harms, trends in use and emerging evidence on cessation. However, I share his interest in ensuring that research keeps up with what we seek to achieve, and we are committed to doing so.
With that, I hope that the noble Lord can withdraw his amendment.
Lord Lansley
“Industry self-regulationInsofar as the Secretary of State makes regulation under this Part relating to vaping products or nicotine products, they may have regard to the availability of relevant codes of practice, guidance or standards made by independent self-regulatory bodies which are supported by representative industry bodies and may provide for a self-regulatory body to exercise functions relating to provisions under these regulations.”Member's explanatory statement
This new clause seeks to enable the Secretary of State to take advantage of self-regulatory initiatives relating to vaping & nicotine products in implementing part 5 of the Act.
Lord Lansley (Con)
My Lords, in this group we are, in a way, returning to an issue that we discussed earlier in relation to my noble friend Lord Udny-Lister’s amendment on the nature of the regulatory regime and how it will be deployed. I freely admit that mine is by way of a probing amendment, because we want to establish how this regime will work.
I will briefly establish my way of thinking on this matter. We have a tobacco control regime; I was responsible for it once. I think that we had about the toughest tobacco control regime anywhere in the world in those days, and I do not want in any way to do other than to strengthen it. We are debating the vaping industry alongside the tobacco industry, but I contend that we need to examine the regime of regulation for the vaping industry in its own terms and not by reference to the tobacco industry, despite the fact they are in the same Bill. These products are substantially different in terms of their possible harm—I will not dwell on that point; we will have a later group on that in relation to my Amendment 197. Picking up a point made by the Minister, the importance of research and of understanding the relative harms of a long-term use of vaping products both need to be established over time. I also contend that that should be independently interpreted in relation to how the regulatory regime will be managed.
A better analogy, although not an exact one, for the regime that we are looking to establish for the vaping industry is with that for the alcohol industry. We are discussing products that if used inappropriately, or if used by young people or used to excess, can do significantly greater harm. However, as I think we generally acknowledge, we want the products to be accessible to adults. We principally want them to be accessible for the reasons of smoking cessation, but we do not intend to prohibit access to them for other purposes; it is all part of a general proposition that they should be accessible to adults. There is therefore, to an extent, an analogy with the alcohol industry but not with tobacco.
In this group, my noble friend Lord Moylan has Amendment 198, which I think is complementary to my own amendment in the sense that what I am proposing is about an independent industry body. I will go on to describe what I have in mind by analogy with the Portman Group, which works in relation to the drinks industry—noble Lords may well be familiar with it through its work over quite a number of years. What my noble friend’s Amendment 198 is talking about is a forum representative of the industry for discussions with the Government about the application of the Government’s powers in relation to the industry.
Lord Lansley
Lord Lansley (Con)
I hope noble Lords will forgive me: I have tabled an amendment to my own amendment, just for the purpose of making it clear that it became apparent that, in relation to brand sharing, for example, it might be appropriate for this to apply in Part 6 as well as Part 5. All the arguments similarly apply.
Lord Moylan (Con)
My Lords, I think I am correct in saying that all of the amendments I have proposed so far have generally been met with a buoyant response and a good level of engagement. I suspect that Amendment 198 will be less welcome; I will speak to it briefly, partly because my noble friend Lord Lansley has already explained what the amendment says and made a comment with which I do not, in essence, disagree.
The amendment seeks to establish a vaping and nicotine industry forum so that the Government can engage with the industry properly. It would disapply the World Health Organization’s Framework Convention on Tobacco Control, which Ministers treat as if it were binding but which has not been the subject of a parliamentary statute imposing it on Ministers. My noble friend Lord Lansley says that this should not be necessary—I rather agree with him—but, in fact, it is necessary in practice because Ministers are treating the framework convention as binding. They are, therefore, excluding from their consultation vaping industry firms that are part of tobacco groups. They will engage with those firms that are involved exclusively in producing vapes—or are at least involved in producing vapes without being tobacco firms—but they will not engage with the others. Obviously, that leads to a very fragmented level of engagement with the industry.
We must be practical and realistic about this. As the tobacco companies transition—they clearly are transitioning—away from cigarettes and into vaping and e-cigarette products, the Government should start to engage with them differently as to their background. That is what Amendment 198 proposes; I do not have to say very much more about it.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have put my name to Amendment 198. This vaping and nicotine industry forum is very important; I am also very sympathetic to exploring different kinds of self-regulation, as is suggested in Amendment 154.
It is interesting that the noble Lord, Lord Moylan, was forced to put down that there would be a disregard of the World Health Organization’s Framework Convention on Tobacco Control because it speaks to the problem. I have been concerned about, in our discussions in Committee, the conflation of nicotine with tobacco; the conflation of vaping with smoking cigarettes; and, sometimes, the conflation of industries. The industries are distinct. I am pleased whenever I hear that the Government are prepared to acknowledge and meet members of the independent vaping industry and so on; they often represent small SMEs and so on.
I want to mention something that I genuinely do not understand. A lot of tobacco companies have now moved into anti-cigarette mode. It is a bit like how BP went beyond petroleum. If you ever go to an event with anyone from a tobacco company, you will be more likely to get a lecture on the dangers of cigarettes than on anything else. They have been forced, by being treated like pariahs, to adopt a different method and different products. I wonder whether the Government might acknowledge that this is going on; personally, I think that treating even tobacco companies as pariahs is not helpful.
Baroness Northover (LD)
My Lords, consultation and the extent to which certain groups are involved has been a key theme of these debates so far. Amendment 154, in the name of the noble Lord, Lord Lansley, raises some interesting points regarding existing codes of practice, guidance and standards. He is quite right that there is a real range when it comes to manufacturers and retailers of vaping products. However, as a general principle, I think he will recall from his time in government that self-regulation has had a lot of problems, as the Minister reminded the noble Earl, Lord Howe.
One relevant example here is the voluntary code that was introduced for tobacco advertising in 1971. I am not aware of a model in the vaping industry that has been effective in regulating products in a way that reduces their appeal to young people, as we have been debating. As the Minister pointed out, it has had that opportunity and it has not taken it. Although I recognise that Amendment 198 from the noble Lord, Lord Moylan, is speaking specifically about vaping policy and products, the fact remains that it is the manufacturer or company that is captured by the WHO treaty. The suggestion in Amendment 198 is, in effect, that the Secretary of State should disregard Article 5.3 of the WHO Framework Convention on Tobacco Control. This is part of a global treaty to protect health policy from the pernicious influence of the tobacco industry. I made reference earlier to what I saw when I was a Department for International Development Minister—tobacco companies giving children in developing countries cigarettes and pressurising Governments, who hardly had the resources to push back, to allow them free rein.
Article 5.3 was a necessary reaction to decades of deceit by an industry that knew about, but covered up, the deadly effects of its products on those who are hooked on them. It was, in my view, an astonishing achievement to secure this measure through the WHO; I doubted that it could ever be achieved. In my view, we must do nothing to undermine that global agreement, and I hope we will not, but as the noble Lord, Lord Lansley, pointed out, Article 5.3 will not prevent the Government working with parts of the vaping industry that are not owned by the tobacco industry; nor does it exclude all contact. The guidelines are clear: parties should interact with the tobacco industry only when it is strictly necessary in order to enable them to regulate effectively. Tobacco companies have claimed that Article 5.3 should not relate to their non-tobacco products, as the noble Lord, Lord Moylan, and the noble Baroness, Lady Fox, indicated, but the requirements in the treaty are both clear and necessary. The tobacco companies’ profit motives are misaligned with public health goals.
Even with these guidelines and the UK’s strong position on Article 5.3, the tobacco industry continues to try to engage with Ministers. I was extremely concerned to see that, last week, the Trade Minister, Chris Bryant, was at an event sponsored by Philip Morris, Imperial Brands and British American Tobacco: the Asian Trader Awards. Paul Cheema, the retailer who fronts the “Protect Your Store” campaign, which is full of industry-backed misinformation, was awarded the Responsible Retailer of the Year award, sponsored by Imperial Brands, in recognition of his work to campaign against this very Bill. That campaign bears a strong resemblance to the “Save Our Shops” campaign, which the noble Earl, Lord Russell, will remember, as, no doubt, will the noble Lord, Lord Lansley. That campaign, launched in 2008, was funded by the Tobacco Manufacturers’ Association through the Tobacco Retailers’ Alliance.
I hope the Minister will remind her colleagues in the Department for Business and Trade of their responsibilities in this area. The tobacco industry is extremely active in attempting to influence this Bill and other regulations, and it has deep pockets. I am very wary of the approach of these amendments, for the reasons I have given; I look forward to the Minister’s response.
Earl Howe (Con)
My Lords, each amendment in this group constitutes a suggestion to the Government that there is a place for regulation with a lighter touch in what is currently a rather heavy-handed Bill. As our Committee debates move forward, I get the sense that a large number of restrictions, rules and regulations are now being devised centrally and will, in due course, be placed on some very large industries, some of them very responsible, without those industries being brought properly into the loop. I hope that I am wrong on that latter point.
My noble friend Lord Lansley has helpfully drawn attention to the codes of practice and the standards that already exist in the vape and nicotine industries, which are overseen by representative industry bodies. The existence of these standards and codes is a reflection of a desire on the part of those businesses to act responsibly towards consumers—and to be seen to do so because, of course, these industries understand their businesses best and are in the best position to frame rules that are designed to drive out poor practice but nevertheless maintain healthy competition in the marketplace.
My noble friend may correct me if I am wrong but, as I interpret his amendment, he is not saying that there is no room for government regulation on top of what these industries are already doing; as we debated earlier, there may well be further restrictions that, for public health reasons, prove to be appropriate. What he is saying, however, is that the Government need regulate only where there is a patent need to do so; and that there may be less need to regulate if there is a responsible industry body in place. There is a parallel with the Portman Group.
Lord Lansley (Con)
Before my noble friend moves on to that helpful analogy, I would like to say—not least in response to what the noble Baroness, Lady Northover, said—that I do not regard what I am putting forward as asking for industry self-regulation. In fact, I am asking for co-regulation in that relationship with government. Making the regulation effective is what I am all about.
Earl Howe (Con)
That is a very helpful clarification; I am grateful to my noble friend. There is a good parallel with the Portman Group, which is recognised, as he said, in statute and has a well-understood relationship with government. That is an appropriate parallel for the Government to consider.
In the same vein, Amendment 198, tabled by my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, seeks to establish an industry forum. The bringing together of Ministers, supply chain representatives and officials would ensure that policies are based on not only principle but real-world experience. I return to the theme of evidence-based policy and there is a parallel here too. As the Minister knows, there are already industry forums for pharmaceuticals and for medical technology, each of which I used to chair as a Minister. Each provides a mechanism for government and officials to engage with those who work day-to-day in the vape and nicotine industries. For the vaping and nicotine industries, it would be a very effective way of making sure that the real world was reflected in future policy-making.
Baroness Merron (Lab)
I thank the noble Lords, Lord Lansley and Lord Moylan, for tabling these amendments, and other noble Lords for their considerations today.
Turning first to Amendments 154 and 154A, tabled by the noble Lord, Lord Lansley, I understand the noble Lord’s intention and the comments that he and the noble Earl, Lord Howe, made. I heard the noble Lord, Lord Lansley, clarify that he is talking about co-regulation. I understand his intent, but as I have said on a number of occasions—other noble Lords, including the noble Baroness, Lady Northover, have supported this—the industry has failed to self-regulate. Vapes are branded and advertised to appeal to children and rates have more than doubled in the last five years, with one in five 11 to 17 year-olds having tried vaping.
In addition to Part 5, the requirements set out in regulations are the best way to stop future generations from becoming hooked on nicotine. As I have previously said, we will consult on regulations where they are made under Part 5. The vaping industry and other bodies are welcome to respond to this consultation. We will return to advertising in more detail when we reach a later group, but despite existing restrictions on vape advertisements and the opportunities that the industry has had to self-regulate, evidence shows that vape advertising continues to appeal to young people. It is unacceptable that, in too many cases, vapes are being deliberately promoted and advertised to children.
Baroness Fox of Buckley (Non-Afl)
I keep hearing that the evidence shows that the advertising is appealing to children. Can the Minister send me details of that evidence, because I cannot find it? I have seen lobbying material from organisations that do not like vaping but no evidence as such.
Baroness Merron (Lab)
I will of course be happy to do that for the noble Baroness.
The noble Lord’s amendment also seeks to allow a self-regulatory body to exercise functions established in regulations under Parts 5 and 6. I point out that Clause 104 already provides for legislative sub-delegation where required. It allows the Secretary of State, when making regulations under Part 5, to delegate functions to other people, which will allow decisions to be made by the most appropriate body. For example, it may be appropriate to delegate functions under Clause 98 on testing, so that a body with specific technical expertise—the noble Earl, Lord Howe, referred to this—can carry out tests on products and determine whether they comply with product requirements.
Lord Moylan (Con)
May I just gently correct the Minister? I did not ask why the Government adhered to their international obligations; I understand why a Government will, in general, want to adhere to their international obligations. The dilemma I raised was why the Government would continue to adhere to international obligations when the practical necessities of engaging with the industry would suggest that there is a case here for not doing so. It would be legal in domestic terms not to do so; indeed, this amendment would give sufficient warrant to anyone who doubted it would be legal not to do so. The question is, in a sense: how long will the Government go on ignoring reality because they prefer to adhere to a non-binding international obligation?
Baroness Merron (Lab)
I appreciate the clarification from the noble Lord and am grateful for his question. In my language, it does not give us a problem to abide by these obligations; they chime with our experience, with the evidence and, as the noble Lord is aware, with all previous practice. I will come on to the point from the noble Baroness, Lady Northover, about my ministerial colleagues in this regard, but this is also our government approach.
The noble Lord, Lord Moylan—I hope that I am quoting him correctly; I know that he will correct me if not—asked about the treatment of vaping firms with tobacco industry links in respect of the consultation. When responding to the call for evidence, and with regard to any future consultations, we ask that respondents declare any direct or indirect links to, or funding received from, the tobacco industry. Input from those vaping companies that have links to the tobacco industry will be summarised with regard to the requirements of Article 5.3, and responses from those parts of the vaping industry that are independent of the tobacco industry will be considered alongside the contributions and evidence of other regulations.
Turning to the point made by the noble Baroness, Lady Northover, about the DBT Minister, Sir Chris Bryant, I can tell her that the award ceremony to which she referred followed the historic signing of the UK-India trade deal. It has previously been attended by Ministers to celebrate the small businesses that are, as we have spoken about regularly, the backbone of our high streets and are delivering economic growth. We are acutely conscious of government guidance; I assure the noble Baroness that no bilateral or brush-by meetings with representatives of the tobacco industry were held.
Baroness Northover (LD)
Did the Minister know who was sponsoring that event?
Baroness Merron (Lab)
To my knowledge, he did not. I return to the point about consultation. There is a requirement to consult before making regulations under the majority of the powers in the Bill. At the risk of repeating myself, which I will do, we published a call for evidence on 8 October. The evidence is—I am sorry for pausing, but I have a cough. Perhaps the noble Lord, Lord Lansley, would like to take advantage of that.
Lord Lansley (Con)
I will give the Minister a moment to drink a glass of water.
If I may presume to ask a pointed question, I am looking for Ministers not to say, “Well, you didn’t do it in the past, therefore you can’t be expected to do it in future”, but to have a conversation with the industry about what this new regime will be, how it will work and how we can—most effectively, with the least interference in how an industry operates and with the lowest compliance costs—arrive at something that is flexible and effective. This may mean that the industry comes together to do something that it has not done in the past, but I do not think that we should exclude the possibility that the industry is capable of doing that.
Baroness Merron (Lab)
I understand that. I refer to my previous comments about Clause 104 already providing for legislative sub-delegation, although I am aware that the noble Lord has raised a broader point and drawn on the interests of the alcohol industry. I understand the point he is making. However, at the risk of repetition, our concern is very much based on our experience and the evidence of the industry. I realise that the noble Lord does not agree with that.
Lord Lansley (Con)
If I may intervene, since this is Committee and we cannot interrupt each other on Report and have this conversation, the point I am making is very simple: the past is not a necessary guide to the future. The fact that the industry did not do something in the past does not mean that it is not capable of doing it effectively in the future. As the Minister knows, the department’s experience is that, in relation to the alcohol industry, the Portman Group is an effective instrument for coregulation, so we should not exclude that possibility. I acknowledge that it is not simply a question of what powers are in the Bill; it is about how one structures the regime, and that conversation should happen now.
Baroness Merron (Lab)
I will be very happy to write further to the noble Lord, referring to the points that he raises, but I feel that he and I are at risk of repeating the same points to each other. My concern is that the industry has had much opportunity and not taken it. Indeed, it has been extremely creative—I am being polite—in working its way around legislation. Noble Lords will have heard my resistance to setting up more loopholes, and that is also for this very good reason. Although in theory I can understand the point the noble Lord is making, I am afraid that my reality does not bear it out. But I will gladly write to him. I appreciate that he is seeking to be constructive and draw on good practice elsewhere, which I understand. I thank him for the break that he gave me.
Finally, as I said, we published a call for evidence on 8 October on issues where more evidence is needed before we consult on specific proposals. That allows all stakeholders, including those relevant to Amendments 154, 154A and 198, to contribute their views. I hope that, with this, noble Lords will feel able not to press their amendments.
Lord Lansley (Con)
My Lords, I had plenty of opportunities to respond as we went along during the debate, so I simply take this opportunity to beg leave to withdraw Amendment 154A.