Tobacco and Vapes Bill

Earl Howe Excerpts

Report stage
Tuesday 3rd March 2026 Lords Chamber

Moved by

[Earl Howe]

21A: Clause 16, page 9, line 26, at end insert—
“(7A) Regulations made under this section may not come into force earlier than the end of the period of one year beginning with the day on which they are published.”Member’s explanatory statement
This amendment provides that regulations establishing the retail licensing regime for tobacco, vaping and nicotine products in England may not come into force until at least one year after they are published. This is intended to ensure that businesses and local authorities have sufficient time to understand, prepare for and implement the new licensing requirements, including administrative systems, training and enforcement arrangements.

[Earl Howe (Con)]

My Lords, Amendment 21A is in my name and that of my noble friend Lord Kamall. In Committee the Minister stated that the Government would design a licensing regime that would support compliant retailers while targeting rogue operators. She also spoke of minimising burdens where possible and recognised the importance of ensuring that retailers and local authorities had sufficient time for training and development. Reference was also made to a call for evidence and to the subsequent consultation that would address matters such as the process for granting licences and implementation generally.

A retail licensing system will require the creation of application systems, fee structures, compliance mechanisms and, crucially, enforcement arrangements. Local authorities will need to establish or adapt administrative systems, train their staff and ensure alignment with trading standards and environmental health functions. Small retailers, many of them independent businesses, will need to understand the new requirements. They will obviously have to submit applications, adjust their own internal processes and potentially invest in training or record-keeping systems.

In our Committee debate, I was encouraged by the Minister’s statement, which indicated that the Government were actively seeking views on how long a period implementation would require. I therefore have a number of questions for the Minister. First, can she update the House on the outcome of the call for evidence, if she has it, and the subsequent consultation to which she referred in Committee? Specifically, is she in a position to provide the feedback the Government have received from retailers and local authorities on the time they would require to implement a licensing regime?

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[Earl Howe (Con)]

My Lords, I am grateful to the Minister for her response to my amendment, which was largely reassuring and provided useful clarity. I think we all agree that, with the new licensing regime, enforcement must be effective and proportionate while also ensuring that businesses, especially smaller businesses, have time to prepare. I welcome the Minister’s assurances on this. However, if the will is there, I think useful progress could be made on the constructive ideas put forward by my noble friend Lord Lansley; I know that she has had discussions with him about these.

Last week the Minister provided welcome assurances to my noble friend Lord Lindsay on specialist tobacconists. She acknowledged their unique character and indicated that it is not the Government’s intention to remove the existing exemption, which allows such premises to display tobacco products provided that those products are not visible from outside. In relation to my noble friend’s amendments in this group, I thought the logic of his case was compelling and I was therefore encouraged to hear the Minister say that the Government were sympathetic to the aims implicit in the amendments. I look forward to some good news on that front and hope that my hopes there are not misplaced.

I thought the amendments from my noble friend Lord Udny-Lister contained some interesting ideas. They are all aimed at strengthening enforcement, improving verification processes and, more broadly, simplifying the operation of the licensing regime. As my noble friend said, there could also be benefits for consumer confidence. These are all good things so, whether or not my noble friend presses his amendments in due course, I hope that the Government will take some of his ideas away and give them further consideration. Meanwhile, I beg leave to withdraw Amendment 21A.

Amendment 21A withdrawn.

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[Baroness Walmsley (LD)]

My Lords, I thank the noble Lord, Lord Young, for tabling Amendment 202, to which I have added my name. It would require the Government to publish, every five years, a road map to a smoke-free country: in other words, a plan for the event rather than a review after it.

There are two essential components to achieving a smoke-free country. The first is that no one should start smoking at all. I hope that the Bill will successfully achieve that over time; the Government have shown great ambition in this area. The second component is that all current smokers are supported to quit, so that everyone stops. On this second part, the Government have been a little quieter, until recently. We have heard about the recent success of targets met for the number of pregnant women smoking at the time of delivery: I think it has gone down by half. However, the rates for other groups remain stubbornly high and we are not seeing the same targeting interventions. We need to ensure that we have this type of focus, energy and commitment with other groups, where we know that smoking rates are higher. Plans for these groups could be located in the road map being proposed.

For example, mental health is a key priority area for the Liberal Democrats. There is a dual causal relationship between smoking and mental health: if you smoke, it increases your chances of developing mental health conditions and, if you already have a mental health condition, you are more likely to smoke. Nearly half of those with a serious mental illness in England smoke, alongside a quarter of people with depression or anxiety, compared with 11.6% of the general population. High rates of smoking in this population have a disastrous impact on physical health, particularly for those with a serious mental health illness who, on average, live 15 to 20 years less than someone without. It is estimated that smoking accounts for about two-thirds of this reduced life expectancy.

The pervasive false narrative that smoking somehow alleviates mental health symptoms urgently needs to be addressed, as it creates so many challenges when we are trying to support these smokers to quit. If the Government are going to publish a strategy, a dedicated section on how they will bring down smoking rates in this group would be extremely welcome and needed. I welcome the Government’s concession that vaping vending machines should be allowed in secure adult mental health settings; this should certainly help this population to quit.

Amendment 206, tabled by the noble Lord, Lord Lansley, would require the Government to publish a review of the Bill. I welcome government Amendment 205, which does something similar but with a lot less granularity. However, would the Minister give us a little more information about where the Government will get their evidence to underpin the review? Can she assure the House that that evidence will be independent and not influenced by any lobbying or so-called evidence put before the Government by big tobacco, or anybody else who would benefit from slowing down the elimination of smoking in the UK?

The intent of this review should be to support the legislation. As several noble Lords have said, the smoke-free generation is a novel policy and we need to demonstrate the impact and evaluate implementation to encourage other countries to follow. There are also many regulations on the way, along with those from other government departments, on nicotine products. A clear analysis of how these policies will work together would be very welcome.

However, the review must not be viewed as a sunset on the smoke-free generation, and I would welcome comments from the Minister on what, at this point, we know will not be in the Government’s review. For example, the Bill’s impact assessment notes that many of the health impacts of the rising age of sale will not be seen for 10 years, so we should be mindful that this part of the Bill is playing a very long game. There may be early data that we are on the right track and the review will perhaps be able to look at compliance, retailer feedback and all the other things that the noble Baroness, Lady Fox, mentioned. I feel that much of this falls into the scope of her Amendment 207.

Finally, Amendments 91, 120, 201 and 216, tabled by the noble Baroness, Lady Hoey, raise concerns about the Bill’s implementation in Northern Ireland. I have been reassured by the Government’s response to the TRIS process, which lays out in some detail their response to the concerns raised, but, as the noble Lord, Lord Forbes of Newcastle, mentioned, the legal opinion published in the Daily Mail was commissioned by the Tobacco Manufacturers’ Association. Without seeing it, I cannot really comment other than to say it is not surprising that the industry is laying the ground for future legal challenges. It is, as we know, highly litigious and wants to chill the appetite for tobacco control globally. It all goes to show, I suppose, that if you put two lawyers into a room, you get three opinions. There are, as we have heard from the Minister on other occasions, other legal opinions out there that say that the Bill is compatible, but I leave the noble Baroness to answer for those concerns. However, I support the Government to press on with this vital public health legislation, and to plan it and review it as required.

[Earl Howe (Con)]

My Lords, this has been a very useful debate with some powerful contributions, but I should like to turn first to the amendments tabled by the noble Baroness, Lady Hoey. It was reported last week in the Times that seven EU member states have formally expressed concern that the Government’s proposed generational smoking ban might breach the Windsor Framework. The Minister said last week that the provisions of the Bill intended to apply to Northern Ireland are compatible with the United Kingdom’s obligations under the Windsor Framework. However, these external concerns plainly have not gone away.

In a previous meeting, I was grateful to the noble Baroness and her officials for discussing the Technical Regulations Information System—or TRIS—procedure in respect of liaising with the European Commission and those EU countries that have raised objections. She explained that, in the Government’s opinion, the TRIS procedure is about consultation and will not lead to any decisions that would be binding on the UK Government. Can the Minister clarify if my understanding of the Government’s position is correct in that regard? Will she also update the House on discussions with the European Commission and with representatives of member states that have raised their concerns? Can she also say whether any formal objections have been lodged through the Windsor Framework structures, including the joint committee?

In general on this issue, we see a rather polarised position, with the tobacco industry on one side and ASH and the Government on the other, so I would be grateful if the Minister could clarify whether the Government have sought or obtained any independent external legal advice on compatibility and whether they are confident that the measures would withstand a challenge in the event of infraction proceedings or dispute resolution. Following on from that, what contingency planning, if any, has been undertaken should a divergence issue arise in relation to Northern Ireland?

Let me turn to Amendments 202, 205 and 206, which relate, in their several ways, to reviewing the effects and outcomes of the Bill as an Act. I am supportive of them but especially grateful for Amendment 205, which responds to the plea put forward by a number of noble Lords in Committee that this far-reaching Bill, whose real-life effects on the health of the population must inevitably lie in the realm of uncertainty, merits close review at a point when we are in a position to assess those effects realistically. Hence, I particularly welcome subsection (2) of the new clause proposed by the amendment, which refers to assessing the impact of the Act. As my noble friend Lord Lansley argued persuasively, the review needs to drill down into the granular detail and the substance of how smokers and non-smokers are behaving in response to the implementation of the different strands of policy.

Having said that, I very much support the ideas contained in my noble friend Lord Young’s Amendment 202, for all the reasons that he gave. A review within four to seven years, as the Government have proposed, considering both economic and health outcomes and involving the devolved Governments, is a sensible safeguard as far as it goes. However, a road map and milestones, which both government and Parliament could follow and monitor along the way, would add considerable value. I am sorry that it appears that this is not an idea that the Government are willing to take further.

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In relation to the risk potential of a nicotine product that is relatively safer than smoking, it is vital that we do not simply hide away what it is that we want adult smokers to consume. The danger here is that, even in relation to communicating age restrictions in shops, you are going to have posters, banners, digital screens and all sorts of things. That does not equate to having a demand that everyone buys vapes. What it does do is communicate to anyone who wants to buy vapes that different types of vapes are on sale, and it ensures that you can advertise the kinds of age restrictions that we are demanding that retailers now enforce. There is a real danger that the kind of ultra position of plain packaging will have unintended consequences.

[Earl Howe (Con)]

My Lords, I am sorry to disappoint the noble Baroness, Lady Walmsley, but, unless it is designed as a probing amendment, I fear I am not drawn to Amendment 123. In essence, it would tie the Government’s hands on the rules around the packaging and display of vapes. If the amendment were accepted, it would make any prior consultation and legal advice completely pointless. Measures of this depth and scope, mandating plain packaging for all vaping products and prohibiting point-of-sale display in all circumstances, would represent a major intervention in what is currently, and will certainly remain, a lawful market, and not only a lawful market but one that serves a significant therapeutic purpose in a public health context. The extent to which the powers in the Bill relating to the packaging and display of vapes need to be exercised must surely depend on decisions by Ministers following full and proper consultation with the businesses, manufacturers and retailers that would be directly affected.

Some regulation in these areas is almost certainly going to be necessary, particularly if we are to protect young people. However, regulation must be proportionate and evidence based. Vapes are not the same as tobacco, as the noble Baroness, Lady Fox, pointed out. For example, there needs to be scope for product differentiation by consumers. If consumers are denied choice, that will kill off any incentive on the part of manufacturers to pursue beneficial innovation. That consideration is important if we believe that vapes are likely to occupy an important place as a smoking cessation tool for adult smokers over the medium to long term.

On Amendments 125 and 134 from my noble friend Lord Moylan, notwithstanding the remarks of the noble Lord, Lord Darzi, I hope to hear the Minister make some positive comments. As my noble friend has argued, both today and in Committee, it is not just the flavour of a vape that gives it an appeal but the flavour that it purports to have, and we know that the flavour descriptor can affect the purchasing decisions of those inclined to use vapes as a recreational toy.

In relation to Amendment 136A, there are clearly a number of considerations that must be weighed carefully. On the one hand, higher-capacity devices may be important for some adult users who rely on vaping as a smoking cessation tool. For those individuals, practicality and product functionality can make a real difference in supporting a transition away from combustible tobacco. On the other hand, there remains a legitimate concern, which my noble friend rightly voiced, about whether larger-capacity devices could increase appeal to younger people or facilitate greater nicotine consumption, with implications for addiction.

I suggest that those are finely balanced issues. I look forward to hearing the Minister’s response on the evidence base underpinning the proposal and how the Government intend to strike the right balance.

[Baroness Merron (Lab)]

My Lords, I am grateful for the contributions in this debate. Amendment 123 was tabled by the noble Baroness, Lady Northover, and spoken to by the noble Baroness, Lady Walmsley. Clause 89, which I will refer to later as well, already gives the Secretary of State powers to regulate packaging, while Clause 13 already provides powers on display that can set requirements as to where products can be sold.

The noble Baroness, Lady Walmsley, asked about evidence. There is evidence that removing branding and standardising packaging reduces a product’s appeal to young people, as the noble Baroness alluded to, while having little impact on adults. However, I can say that we will consult on proposals before making regulations. The noble Earl, Lord Howe, has referred to this issue a number of times and I agree, because we are conscious of the need to ensure a balance between dissuading young people from taking this up while not dissuading adult smokers from quitting.

On the point about research, through the National Institute for Health and Care Research, we continue to fund high-quality research, including research on the packaging of vapes and nicotine products, and I am glad to say that that is due to conclude later this year. While I understand the intention of the noble Baroness, Lady Walmsley, to reduce the appeal and visibility of these products, and I acknowledge her concerns, her amendment does seek to set the requirements in the Bill. As the noble Earl, Lord Howe, referred to, we have a statutory duty and we would be wise to consult on these issues, because we need to ensure, as the noble Earl said, that any restrictions are proportionate and evidence based. However, I reassure the noble Baroness that these are areas on which we will be acting.

On Amendment 136A, tabled by the noble Lord, Lord Udny-Lister, under the Tobacco and Related Products Regulations 2016, vaping products, as has been referred to in this debate, are already limited to 2 millilitres for tanks and 10 millilitres for refill containers. Over recent years, some manufacturers have developed devices where multiple refill containers can be attached to a single device as a means to circumvent the legislative requirements and restrictions.

I want to assure the noble Lord that Clause 90 provides the powers to amend or place additional requirements and limits on vape tank sizes and the size of refill containers. It is vital that we undertake the necessary consultation, because we wish to make sure that our regulations are based on the best possible evidence related to tank capacity limits and that we do not have unintended consequences for adult smokers who use vapes as a quit aid, something I know is of concern, and rightly so, to noble Lords. It is therefore more appropriate for such detailed technical measures to be introduced through secondary legislation. Our recent call for evidence sought views specifically on tank sizes to better understand current market practices and we are, as I mentioned in an earlier group, currently analysing responses and will consider our proposals for consultation post Royal Assent.

Finally, I turn to Amendments 125 and 134, tabled by the noble Lord, Lord Moylan. I begin by assuring noble Lords—and the noble Lord, Lord Moylan, suggested I would do this—that Clauses 89 and 90 already provide powers for the Government to regulate information on vape devices and packaging, including flavour descriptors. I draw the attention of noble Lords particularly to Clause 89(3), which is a non-exhaustive list of the kind of provision that regulations could make, including in paragraph (b),

“the information provided on packaging or otherwise supplied with a product”.

I have listened carefully to the concerns expressed by noble Lords about potential unintended consequences of implementing flavour restrictions too rapidly or stringently, and I understand the points that noble Lords have made about the role that flavoured vapes can play in helping adult smokers quit, something the noble Baroness, Lady Fox, mentioned. Certainly, the noble Lord, Lord Moylan, did a very fine job of inviting us into the world that he has experienced in this regard. In that spirit, I can confirm the Government’s commitment to consult on regulating flavour descriptors as a first step before considering broader restrictions on flavoured ingredients. This commitment reflects our intention to adopt a proportionate approach, again as the noble Earl, Lord Howe, asked me to do, supporting adult smokers in their efforts to quit while also working to reduce the appeal of vaping products to children.

However, and on the points raised by the noble Lord, Lord Darzi, I have to be clear that it is essential that we retain the ability to go further in line with the evidence, which the noble Baroness referred to. Flavourings are added to vaping products and that can increase their appeal. Hundreds of flavoured ingredients are used in vapes and, although some are considered safe when ingested, we do not, as the noble Lord, Lord Darzi, said, know the long-term health effects when they are inhaled, particularly in respect of children. Some initial data drawn from the limited research available is concerning and indicates that certain chemicals may be harmful if inhaled. For this important reason, we must have the flexibility to restrict flavoured ingredients in the future to protect public health. We have sought further data on flavours as part of the call for evidence conducted at the end of last year and we are reviewing those responses. In addition, we are exploring commissioning further research on the health impacts of vape ingredients when inhaled.

I hope that all this reassures noble Lords that the powers in the Bill already provide a comprehensive framework to act on these issues and that our approach will remain balanced and evidence-based to strike a necessary balance between reducing youth appeal and ensuring that adult smokers continue to have access to products that may help them quit. I hope the noble Baroness, Lady Walmsley, will feel able to withdraw the amendment.

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Moved by

[Earl Howe]

192A: Clause 136, page 78, line 11, at end insert—
“(3) Regulations made under this section may not be read as placing any burden on a person to prove to any enforcing authority that smoking is necessary for artistic reasons, and in any proceedings relating to an alleged offence it is for the enforcing authority to establish that the conditions for any exemption do not apply.”Member’s explanatory statement
This amendment seeks to clarify that regulations relating to smoking in theatrical performances do not alter the existing allocation of the burden of proof.

[Earl Howe (Con)]

My Lords, in moving Amendment 192A I will speak also to Amendment 194A standing in my name. In Committee, I raised a question relating to Clause 136, which I make no apology for raising with the Minister again. Under the Health Act 2006, Ministers have a regulation-making power to exempt performers and performances from the smoking ban, where doing so is justified by the artistic integrity of the performance. That provision in effect creates a presumption of legality that empowers producers, directors and performers to make a reasoned judgment about whether smoking is intrinsic to the artistic content of the work.

I contend that Clause 136 turns that structure on its head. Instead of a power to permit smoking for artistic reasons, it substitutes a power only to create a defence to the criminal offence in Section 7(2) of the 2006 Act. That offence is clear. It says:

“A person who smokes in a smoke-free place commits an offence”.


In other words, under the current law, you do not commit an offence unless and until you are convicted of it, whereas, under the exercise of the power in the Bill, you have committed an offence unless you can prove in court that you have not. Those, it seems to me, are two very different things. While the Government maintain they are merely rephrasing the current law to create the same legal effect, I have not been persuaded by their explanation. The burden of proof has clearly been reversed.

Let us not forget that we are talking about theatres. Many of them are small and many of them are already operating on narrow margins. Some are fringe venues that are not organisations with legal departments on retainer. Yet, as the Bill stands, a theatre director who permits an actor to smoke on stage is thereby immediately in legal and financial jeopardy, because he has rendered himself liable to arrest for an offence from which he can be absolved only by arguing his artistic case before a judge. That cannot be right. It cannot be right to oblige every director of a Noel Coward play to commission legal advice to protect himself in the event of his subsequent arrest. If Clause 136 remains as it is, I hope the Minister will tell me that its provisions will be the subject of guidance to the enforcement authorities, because that at the very least is what is required.

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Finally, I shall speak briefly to government Amendment 200. This is a minor and technical amendment to address a drafting inconsistency in Clause 144 relating to the persons responsible for signs in heated tobacco-free premises in Scotland. It aligns the wording with that used in the equivalent provisions for smoke-free and vape-free places in Scotland. I hope that noble Lords will feel able to support this government amendment and that the noble Earl, Lord Howe, will see fit to withdraw the amendment.

[Earl Howe (Con)]

My Lords, I thank the Minister for her response and all noble Lords for their contributions to this debate. I welcome what the Minister had to say on my Amendment 192A. It seems that the key must be for clear guidance to be issued to enforcement authorities to ensure that the heavy hand of the law is not laid inappropriately on those in our entertainment industry. From what the Minister said, I am at least reasonably confident that that will not be a consequence.

I welcome the fact that the Government recognise the importance of acting on the basis of evidence. Where powers exist to designate spaces as vape-free, it is right that they are exercised proportionately and on the strength of clear and published evidence of risk. I was glad to hear the Minister’s response to the amendments in the names of my noble friends Lord Sharp and Lord Udny-Lister, especially in relation to hospitality settings.

I also hope that as the Government consider how these powers may apply more widely, there will be full and proper consultation with those sectors potentially affected. Once again, I think in particular of theatres and performance venues where there may be specific artistic or practical considerations. It is important that such institutions are consulted appropriately and that we do not create unnecessary burdens or unintended consequences for them without good reason.

As we conclude this Report stage, I express my appreciation to the Minister and her officials for their willingness throughout the passage of the Bill to engage with us and other noble Lords on its provisions, and for the changes and undertakings that the Minister has been prepared to make in response to concerns put forward at various stages. The Bill is a better Bill as a result. With that, I beg leave to withdraw Amendment 192A.

Amendment 192A withdrawn.