Tobacco and Vapes Bill (Tenth sitting)
Andrew Gwynne ExcerptsTuesday 21st January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 January 2025 - (21 Jan 2025)
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
It is a pleasure to serve under your chairmanship this afternoon, Mr Dowd.
As we discussed before the adjournment, clause 89 forms part of part 4 of the Bill. It provides the power to Revenue and Customs officers to seize and detain snus. We talked briefly about the time of detention being 48 hours. I was about to ask how one would decide that the amount was suitable to seize.
Clauses 7, 8 and 9 already provide for snus. Clause 7 bans UK manufacture. Clause 8 bans sales in the UK, but not where people buy it abroad or online and import it. Clause 9 covers the possession of snus with intent to supply, but does not give any indication of what sort of volume one would anticipate could lead to supply.
I am aware that when it comes to some illegal drugs, there is a rough and ready reckoning of how much would be considered as being possession with intent to supply and how much as being for personal use. It may be more complicated in this case, however, because the personal use of this product, which it is legal to import, will affect how often one wishes to import it.
For example, it is unlikely that someone who is importing snus for their own personal use would need to make an import on a daily or perhaps even weekly basis. Some people may decide that they are going to do it monthly or annually, which may mean that they are importing quite a sizeable amount that some customs officials may consider as not for personal use, but for supply.
Could the Minister indicate how it will be decided what counts as personal use and how people can prove that? We do not want a loophole that allows people to use this dangerous product.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship once more, Mr Dowd.
These are of course operational matters for customs officials who already utilise the powers that they have been given in a variety of different forms of legislation. It is common practice for customs officials to seize illicit goods at the border, irrespective of what those illicit goods are. That will now apply to snus.
Border Force officials will decide on a case-by-case basis—on the evidence in front of them in any particular case and on the intelligence that they might have—whether the goods that they have seized are likely to be for personal use. I imagine that given the quantities that would likely be needed, in the case of seizing illicit goods, we would be talking about large quantities of a product that clearly would not be for personal consumption. It would therefore not be unreasonable for Border Force officials to come to the conclusion that the illicit goods that they have seized may well be sold on, which is illegal.
Andrew Gwynne
I will not. That is pretty clear.
Question put and agreed to.
Clause 89 accordingly ordered to stand part of the Bill.
Clause 90
Retail packaging
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
The clause provides the Secretary of State with powers to make regulations about the retail packaging of vaping, tobacco and nicotine products, as well as cigarette papers and herbal smoking products. It also covers tobacco-related devices. For instance, regulations made under this power could restrict the appearance of packaging, as well as what information is provided on it, its shape and its texture.
Although vapes can be an effective quit aid for adult smokers, vaping is never recommended for children. It risks addiction and unknown long-term health impacts while their lungs and brain are still developing. Despite that clear health advice, there has been a significant and alarming rise in the number of children vaping. There are also reports of increased use of nicotine pouches among children and adolescents. That increased use is partly due to the blatant marketing of vapes to children through brightly coloured packaging and the use of child-friendly images such as cartoons. That is an unacceptable practice that the Government intend to stop.
We have seen the effectiveness of standardising tobacco packaging for youth smoking rates, and the evidence tells us that reduced brand imagery can decrease the appeal of products to children. This clause will allow us to make changes such as banning the use of cartoon characters on packaging and regulating the colours that can be used. The clause also replaces existing regulation-making powers for tobacco packaging, so that the power to regulate all the relevant products is in a single piece of legislation. I therefore commend this clause to the Committee.
Dr Johnson
Clause 90 is in part 5, on product and information requirements, and deals with the retail packaging of various products. Clause 90(1) grants the Secretary of State the authority to make regulations concerning the retail packaging of tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. This is one provision where tobacco-related devices are included; they have not been previously, in most clauses. The packaging is of the device, which may be supplied separately from a refill, so that is an important addition.
Clause 90(2) specifies that the regulations may include
“prohibitions, requirements or limitations in relation to the production, importation or supply of such products in the course of business.”
That is relevant because a quick search on the internet reveals that although quite a lot of things are prohibited in the UK, including different forms of cigarettes—those with branded packaging, coloured cigarettes and the like—and they may not be legal to sell in this country, it is perfectly possible to go on to a website, buy them in British pounds and have them supplied to one’s home, so there is a clear loophole that needs to be considered.
Subsection (3) outlines particular aspects that the regulations may cover, including the markings on packaging, such as the use of branding, trademarks and logos. I think the use of the word “logo” is key, because if I were to draw a pair of golden arches, people would know what I meant without my needing to write “McDonald’s” next to them, or if I did a little tick, people would know what I meant before I said that it was for Nike. The same is true of various logos, such as for Amazon and others, where the picture has become so well known that the name of the brand is not required to identify it. There is actually a board game that people can buy for their kids to test how good they are at identifying logos. Clearly, brand marketers are very aware of the use of shapes—as well as just the name—for identifying their products.
It is also possible to regulate the information provided on packaging or otherwise supplied with a product and the appearance of packaging. We have seen pretty coloured packaging and packaging designed to entice children with its texture, size and shape. I have seen vape holders that are teddy bear-shaped, so that while someone is not using their vape, they can put it in a teddy bear that comes in a range of colours. They are available on Etsy. It is even possible to regulate the means by which packaging is opened.
Those are useful powers for the Secretary of State to take, but only if he uses them. If he takes them and does not provide any regulations at all, they are worse than useless. Can the Minister explain the timescale in which he expects to perform any consultation required to introduce regulations to the House?
In addition, subsection (3) allows the Secretary of State to address in his or her regulations any packaging features that could distinguish between different brands, the number of individual products in a packet or the quantity of a product in a packet. Products then become standardised items that are less attractive, particularly to children. Subsection (4) specifies that any regulations made under the clause will be subject to the affirmative resolution procedure, meaning that they must be approved by Parliament before coming into force.
The regulations proposed as a result of the Secretary of State’s powers under the clause will build on previous regulations on shape and packaging. We are all aware that the shape, size and appearance of packaging has changed over our lifetimes. Indeed, on 20 May 2016 the UK implemented the Tobacco and Related Products Regulations 2016—the TRPRs—following the European Union’s tobacco products directive 2014/40/EU. The TRPRs form part of the current regulations retained as EU law after Brexit, and they contain a comprehensive set of rules for the regulation of nicotine-containing e-cigarettes and related products, often referred to as vapes.
The TRPRs introduced several important product standards for nicotine-containing vapes, which marked a turning point in how those products are perceived and controlled. Notably, they placed limits on the nicotine strength allowed in e-liquids, restricted the size of refill bottles and tanks, and mandated specific health warnings on the packaging. The packaging requirements were introduced to ensure that customers were fully informed of the risks associated with using nicotine products.
Again, placing the new regulations on top of the old ones will work only if they are properly enforced, and we have all seen examples of them not being properly enforced or followed. Under the current Tobacco and Related Products Regulations, nicotine-containing products such as e-cigarettes and e-liquids are required to carry a mandatory health warning on their packaging. However, the law allows significant flexibility on the colour, shape, style and types of branding used on those products, as we can see in the adverts when we walk down the street. Some of them are smooth-shaped, some are sharp, and some are shaped like SpongeBob SquarePants or teddy bears. There are also various flavours, although we will come to flavours later. The colours, branding and shapes are all part of the advertising to try to make the products attractive to users, and in some cases particularly to children.
The approach to vapes under the current regulations is in stark contrast to the stringent requirements already in place for tobacco packaging, which is covered by the Standardised Packaging of Tobacco Products Regulations 2015. The regulations maintain that cigarettes and hand-rolling tobacco packaging must be plain, with no branding, logos or colours that could attract potential smokers. The stark difference between tobacco and vape packaging raises important questions about how best to protect young people from the growing appeal of vaping products, which are still seen by many as a safer alternative to traditional cigarettes. We must be clear that they may be safer for smokers, but not for children or people who do not smoke.
It is important to understand the context behind clause 90. Before we had formal packaging regulations, cigarettes were sold with little to no concern for public health. Tobacco companies focused primarily on branding and advertising to create an appealing and recognisable product. The early 20th century saw the rise of the iconic cigarette brands, each seeking to distinguish itself through distinctive packaging designs. Often vibrant, colourful and glamorous—as we are seeing with vapes—they were designed to entice new customers, including young people, and to create a sense of status or sophistication.
Cigarette packaging became a key component of the advertising strategy, with slogans, logos and images intended to convey a lifestyle associated with smoking. Of course, a young person attracted to them would have bought that packet, carried it and shown it to their friends. The packaging would form part of the attraction of the product, and encouraged people to take on a product that we would not have wanted them to. There were no health warnings at that time, and little was done to inform the public of the dangers associated with smoking. That persisted for many years until the latter half of the 20th century. As Members will be aware, throughout the history of tobacco advertising, characters and mascots have played a significant role. These often colourful, friendly and appealing figures, designed to make smoking appear safe, desirable and even fun, were found on the packets.
Andrew Gwynne
The shadow Minister is making a really compelling argument, but it would be best saved for the Delegated Legislation Committee following the consultation, so that we know exactly what the Government are proposing. She is setting out a resounding argument for different measures, but that is not of course what the clause sets out. It gives Ministers the power to consult and to bring secondary legislation to a future Delegated Legislation Committee. That is where the shadow Minister should be making these absolutely superb arguments, but we need the powers first.
Dr Johnson
With respect, it is unwise to give someone the power to do something you do not want them to do.
Dr Johnson
Thank you, Mr Dowd—I am sure you have no opinion on this matter, as you are impartial.
Before giving powers under clause 90 to change packaging and make packaging regulations, it is important that we understand the Minister’s intention. Is it to strengthen or to weaken?
Andrew Gwynne
If the shadow Minister is seriously saying that the Government are bringing forward measures to weaken existing provision, she is living in cloud cuckoo land. She does not need to ask me or, through me, the Secretary of State whether it is our intention to weaken the provisions; it absolutely is not. It is in our manifesto that we would bring them in. We want to strengthen the measures. The shadow Minister actually needs to ask Opposition Members whether they would use the powers to weaken those measures. That is not a question for me; it is one on which she has to tussle with the Leader of the Opposition and with Opposition Back Benchers on the Committee.
Dr Johnson
I thank the Minister for his intervention, but the Labour manifesto is not necessarily a document on which one can rely. I do not seem to recall its saying that the Government were going to take the winter fuel allowance from old people. I will not test your patience, Mr Dowd, by giving other examples of where the Labour manifesto did not reflect what the Government went on to do, but the point has been made.
One of the key issues from the public consultation on the Bill, which is therefore relevant to clause 90, is the growing concern and mounting evidence about vape packaging and the need to prevent products from appealing to children. The consultation paper issued by the Government expressed a clear desire to ensure that no vape packaging or vape devices should target young people. The Khan review, which was done under the last Government, recommended that restrictions be placed on packaging images and descriptions to ensure that vapes did not appeal to children.
In that vein, the Government have suggested that they will ban the use of cartoon characters, animal images, images of inanimate objects and other child- friendly visuals used on packaging and devices, recalling the infamous tobacco mascots of times gone by. By implementing such a measure, I believe that the Government aim to reduce the attractiveness of such products to children, acknowledging that current marketing practices may be encouraging the use of such products among young people who have never smoked.
A quick online search can dig up all sorts of vapes and vape paraphernalia clearly targeted at children. Vape packets with SpongeBob SquarePants, Mario Kart characters and other cartoon characters can be found online. I have listened to children who have said that they have discussed which vape they should have to match the outfit they are wearing at a particular event.
There is significant public support for stricter regulation of vape packaging. A 2023 public opinion survey commissioned by Action on Smoking and Health found that 76% of adults in England are in favour of limiting the use of sweet names, cartoons and bright colours on vape packaging. That shows that there is widespread concern among the public about the need for stronger safeguards to protect young people from becoming regular users of nicotine products.
The call for limiting the appeal of vape products to children is in line with broader efforts to tackle young vaping, which has become a growing public health issue in recent years, but public opinion is not the only factor that should drive the changes to packaging. The Government’s concern over youth vaping is also reflected in their efforts to develop a comprehensive regulatory approach. In addition to restricting the use of child-friendly images on packaging, there are other, broader changes, which I will not go into now.
The packaging of vaping products is not just a cosmetic issue. The clause talks about cosmetic things such as what materials can be used, what packages can look like, how big they are or what shape they can be, but those have real implications for public health. By regulating the appearance and branding of these products, we can significantly influence how they are perceived by the public and, most importantly, younger audiences. The goal of the regulatory measures has to be to strike a balance between ensuring that vaping remains available as a harm-reduction tool for adults trying to quit and reducing the risks associated with its increasing appeal to young people.
That delicate balance requires careful consideration and ongoing dialogue between health experts, industry stakeholders and the public. As the Minister pursues such consultation—if he is given the powers under clause 90—I hope that he will consider the matter of flexibility and the way in which the businesses tend to evolve, and that he will future-proof the regulations. The UK Government have taken an important step in recognising the potential risks posed by packaging and are actively working to mitigate those risks through public consultations, policy papers and regulatory changes. However, that is only the beginning. To effectively address the challenges posed by vaping, further measures will need to be introduced not just on packaging, but in relation to other matters, which we will come to later.
We have made the case for why we should consider giving the Secretary of State or Ministers the powers to regulate retail packaging. However, the question is what impact that will have. Will it have a big or small impact, and will we be putting a large amount of regulation on to businesses for minimal effect and increased cost? Will this make a big difference? The Government have produced an impact assessment of the measures in clause 90 and their desired outcome. It says that the appeal of vapes to children, and the subsequent number who go on to vape, is expected to reduce with the restriction of packaging presentation. Such restriction would therefore result in overall health benefits to our young people due to a reduction in vaping uptake and associated harms.
Moreover, such a decrease in vaping uptake and associated usage among young people is recognised in the impact assessment as also being potentially beneficial for the environment because of a reduction in the anticipated litter from vape-related packaging. Indeed, a litter pick with volunteers from Sleaford a little while ago drew my attention to the harm that vape-related waste is having on our environment. Again, in considering the material of packaging, the Minister may want to think about any environmental hazard posed, which is something that he can mandate under clause 90(3)(d) to ensure that the packaging is to a standard that helps to reduce the effect on the environment.
Furthermore, the impact assessment highlights that the illicit vape market has been increasing and suggests that it could be exacerbated if these powers were implemented. However, it could also be argued that more appropriate packaging restrictions could assist in distinguishing between compliant and illicit vape products, depending on how the regulations were brought forward. They could make it arguably more difficult to discretely stock, advertise or sell such illicit products, and easier to identify and tackle illegality in the sector. It is recognised that packaging-related restrictions are expected to reduce the number of children and adults vaping, thus reducing the profits for manufacturers and stockers because of packaging presentation.
The impact assessment also sets out that such measures are not expected to prohibit or affect the abilities of vape consumers themselves in making choices based on their own preferences or in purchasing the products they wish to consume. If one is already a vape customer, or one is a smoker wishing to stop, packaging will not have an effect, but it may well reduce the likelihood that children start vaping, which is a good thing. Consumers are free to engage in purchasing and consuming such products as they wish, albeit that by being in different packaging, it is less appealing to children and young people.
Although no studies have shown the real-world impact of standardised packaging for vaping products, evidence from experimental studies suggests that plain packaging may reduce the appeal of vaping products among young people. There is research in the impact assessment about standard olive-coloured packaging—I am not sure whether that is a green olive or a darker olive—in comparison with branded packaging. It found that young people aged 11 to 18 had a lower interest in trying vapes in standard packaging but there was no difference among adult respondents between the branded and plain standardised products. Research from King’s College London and Action on Smoking and Health shows that different effect, with young people being more likely to attracted by the packaging than adults.
A recent study also looked at a cross-sectional online survey to explore interest in the perceived harms of vaping products when it comes to packaging. The study found that not only did young people aged 16 to 19 in England, Canada and the US find e-liquids in white or olive-coloured standardised packaging less appealing compared with those in branded vape packaging, but that they inaccurately perceived e-liquids in that standardised packaging as being equally or more harmful than smoking, compared with e-liquids in branded packaging. Again, there is evidence that packaging influences children’s decisions. If they look at something in a plain packet, they are more likely to think it is not good for them than if they see it in a packet with Mario Kart or a teddy bear on it. I know that is instinctive, but the evidence also bears it out, as seen in the Government’s impact assessment.
I am interested to know how clause 90 differs from existing legislation, particularly on tobacco products. It is my understanding that under the Standardised Packaging of Tobacco Products Regulations 2015, which came into effect on 20 May 2017, all products—including cigarettes, rolling tobacco and snuff—must be sold in standard packaging. The use of logos, trademarks and branding has been severely restricted and tobacco packaging must display the product name in standard font and size without any distinctive logos, colours or images.
Sarah Bool
My hon. Friend makes a very powerful and valid point. I would like the Minister to address how we are going to tackle the issue online. If someone cannot go into a physical shop, going online is the next alternative, and we want to ensure that we protect our young ones as much as possible.
I want to highlight one other point from Cancer Research. It said that it is also important that the legislation future-proofs against the use of bright coloured lights or similar displays that could appeal to young people. Again, we need to be careful of that. As has been said, manufacturers are often very good at finding their way around these regulations, so we do not want to make the products attractive in another vein.
My second point focuses on clause 90(3)(b), which says that provisions may be made about
“the information provided on packaging or otherwise supplied with a product”.
We had some evidence submitted from the North East Public Protection Partnership, which is a regional partner-ship that brings together chief officers of 12 local authorities in the north-east, representing environmental health, trading standards and licensing services. The partner- ship is in support of the measure, but believes that certain requirements should be put on packaging itself—it thinks that inserts in the packaging should be regulated. I have learnt, as I have not come across them often before, that inserts are used internationally, in Canada and Israel. They are proven to encourage people to give up smoking when they are placed inside the packaging. They usually contain positive messages to encourage people to quit—for example, by going into detail about improved breathing within a matter of days of quitting or the 50% reduction in the risk of heart attacks within a year, or by detailing how much money a smoker is likely to save.
The North East Public Protection Partnership believes that there should be specific regulations around the inserts and the packaging, setting out the type and size of font, the colour, the layout, and dimensions. It thinks that the specific information to use on packaging should be defined and that the information provided on where to seek more help to quit should also be included. It also says it is essential to set a date for suppliers for when packaging must appear on the UK market and that the penalties on manufacturers for non-compliance should be set out.
The partnership also said:
“The Government will need to liaise with Trading Standards in order to ensure that the appropriate offence, or offences, are included in regulations on pack inserts. We would recommend an offence is included which relates to the sale or supply of a tobacco product without the correct insert, so that Trading Standards can take enforcement action against the person selling. An example of this includes the Tobacco and Related Products Regulations 2016 where there is an offence to produce as well as supply product in breach of regulations.”
Finally, it adds:
“Health messaging should be on the outside of all tobacco, nicotine and vape products.”
My final question to the Minister is: have he and his Department turned their mind to inserts, what they might contain, and the role they could play in future?
Andrew Gwynne
We have had a good debate on clause 90—that is all we are up to.
To answer why this is an issue, unlike standardised cigarette packaging, vape packaging can—as we have already heard—come in many different colours, styles, and shapes. The previous call for evidence that the shadow Minister referred to showed that this increases the appeal of vapes to children, and it can encourage them to start vaping. That is what we want to crack down on with this clause.
A number of Members have asked why we are extending the provisions, given that tobacco packaging is already standardised. Only cigarettes and hand-rolled tobacco are subject to the most stringent regulations. This includes standardised packaging, specified packet shape, amount within packs, material, colour and appearance requirements, and so on. In England, around five times more people smoke other tobacco products, such as cigars, than a decade ago. There has been an increase in that consumption and we are committed to addressing this, which is why we are extending the measures to other tobacco products.
In terms of requiring dissuasive messages, of course, these are things that we can look at in the future—it is not something that we are looking at now. We will be mandating pack inserts for cigarettes and hand-rolled tobacco packaging, and we will be running a call for evidence on standardising the packaging of all other products. The shadow Minister, the hon. Member for Sleaford and North Hykeham, asked whether the Secretary of State or Ministers will use the powers. We are coming to Parliament with this landmark Tobacco and Vapes Bill, as we committed to in our manifesto, precisely because we want to use these powers. We are seeking these powers. The Scottish Ministers, the Welsh Ministers, and the Northern Ireland Minister are seeking these powers precisely because we all want to use them to tackle the scourge of youth vaping and move our country to smokefree 2030. Our manifesto committed to stopping vapes being branded to appeal to children, and the Bill provides new regulation-making powers to make this commitment a reality.
As has been alluded to, Members have asked over the course of our deliberations why the restrictions are not on the face of the Bill. In particular, the shadow Minister has gone into the level of detail that we will go into when the regulations are brought before the House, following consultation. My answer is that the technical and detailed nature of the requirements means that they are not suitable to be put on the face of the Bill. We might need to amend the requirements in response to future developments in the market, and scientific knowledge and evidence may change, which means that we will have to react where appropriate. It might also be necessary to gather further evidence post-implementation—this is precisely the point that the hon. Member for Farnham and Bordon made about ensuring that everything is evidence-based, that the data is there and that we scrutinise it, rightly. We may well come to decide that our regulations are the wrong regulations, or that they were the right regulations three years ago, but now need to be changed. That is the why the powers in the Bill are permissive.
It is also important to gather information about the effectiveness of the packaging regulations, to see whether they have indeed discouraged youth vaping. All the evidence from other jurisdictions that do this suggests that they will; however, we need to ensure that the evidence is relevant to the United Kingdom. We will also need to keep a close eye on what happens to adult vapers, particularly those who want to stop smoking, and whether vapes remain accessible to adults who are trying to quit smoking, which is something we need to be clear about.
To be clear, the requirements for vape packaging are yet to be determined, as I said in an intervention on the shadow Minister. The proposed restrictions will be subject to consultation, to ensure that any unintended consequences on adult smoking rates are considered. Research suggests that neutral packaging can remove appeal to youth without being dissuasive to adult smokers—the point made in the information from Cancer Research UK, which the hon. Member for South Northamptonshire rightly raised. Further analysis and consultation will take place before any regulations are made, because we absolutely want to get this right.
It is crucial that we do not rush into this, but have measures that are proportionate and workable, and that there are no unintended consequences. That is why there will be a transition period for businesses before any new regulations come into force, and the length of the transition will be considered as part of the consultation process. This is a balance to be struck between acting quickly to curb youth vaping and carefully considering unintended consequences on smoking rates, in order to ensure the most impactful change possible. That is why we have included a statutory duty to consult, to ensure that the relevant stakeholders are engaged, and to consider their responses and insights as regulations are developed.
Of course, we will provide more information about the timeline for our secondary regulation programme once we have Royal Assent, but let me make it clear to all members of the Committee that it is our intention to move at pace. We want to use these powers, so we want to make sure that, once the Bill becomes law, we start the process of getting the relevant regulations in place, especially for smokefree, because although many of the measures in the Bill will come into force on 1 January 2027, some regulations might be done beyond that date. We will have a lot of work to do in secondary legislation, to get the measures in the Bill—which we hope will all be approved in the course of our deliberations prior to Royal Assent—so that we can hit the ground running and get to 1 January 2027 smoke-free.
Dr Johnson
I am glad to hear that the Minister wants to use the regulations and strengthen the regulation around vaping—although I appreciate that that is not the view of the entire Committee—but he is talking about 1 January 2027, which is almost two full years away. Does he anticipate that the packaging regulations will come in before or after the legislation on the smoke-free generation?
Andrew Gwynne
The simple answer at this stage is: “I do not know.” It depends on parliamentary time being made available, the length of the consultations and what comes back from them, and a whole range of things that right now are outside of my control. But I say to the hon. Lady that, first, smoke-free is the priority. We have an absolute deadline for having smoke-free regulations in place, with enough of the lead-in time that we have promised retailers, and in respect of licensing requirements for the commencement of the Bill. But be under no illusion: we will be moving like the clappers, to get as many regulations in place as early as possible, so that the measures in the Bill can have the full impact and effect as soon as humanly and legislatively possible. That is my commitment.
Question put, That the clause stand part of the Bill.
Gregory Stafford
Those sound like fairly reasonable timeframes; if the Minister were minded to follow those, I would support him, notwithstanding what I have already said.
On clause 91, which I support, we need to ensure that there is a comprehensive stakeholder consultation for whatever the Minister plans to do in this area. There needs to be some kind of phased implementation—by which I mean an eight or nine-month period, or whatever—to ensure that manufacturers can catch up with whatever is being implemented. As I have said previously on other clauses, there must be robust enforcement mechanisms to ensure that manufacturers and retailers comply. Once again, this is all about educating the public about what the legislation means and what they should be expecting. Public education campaigns on this matter are essential.
Andrew Gwynne
I am grateful to the Committee for this discussion. Amendment 5 and new clause 1 require the Secretary of State to consult on regulations to introduce health warnings on cigarettes and cigarette papers. I am sympathetic towards the aim of the amendments, which encourage current smokers to quit by providing them with information on the harms of tobacco.
However, the UK already has some of the most stringent regulations in the world on tobacco packaging, which emphasise the heath harms of tobacco. That includes the requirement for plain packaging and graphic picture warnings on the outside of cigarette packs. A post-implementation review published in 2022 stated that these measures still remain effective in helping smokers to quit and in deterring children from taking up the habit. As set out in our response on 5 November 2024 to the consultation on tobacco pack inserts, we will implement positive quit-themed health messaging into the packaging of cigarettes and hand-rolled tobacco. That could contribute up to 150,000 additional quit attempts and 30,000 successful quits over two years.
We are also going further. We will look to extend the legislation on pack inserts to cover all tobacco products, tobacco-related devices, cigarette papers and herbal smoking products. To do that, we are running a call for evidence on standardised packaging to consider introducing more stringent packaging requirements for the different tobacco-related product types wherever possible.
On pack inserts in particular, my hon. Friend the Member for City of Durham asked about implementation. Of course, we are working to implement that as soon as we can, but only after engagement with relevant stakeholders, as I said in the previous debates. We will consult on the final specifications before laying the legislation before Parliament. There is a lot of clapping going on; this is something else on which we will be working like the clappers to get over the line. I hope that reassures my hon. Friend that pack inserts are a priority for the Government. We will move at pace to get that done.
On a technical note to my hon. Friend’s amendments, the Bill restates the existing power to make regulations on the appearance of tobacco products, including cigarette sticks. Not only that: it goes further and extends that power to other products, including cigarette papers. We therefore do not believe that the amendments are required to bring in dissuasive messages on cigarettes, because the powers already exist in this Bill should Ministers seek to consult in the future and bring forward secondary legislation.
While it is not our plan to introduce dissuasive messages on cigarettes at this time, because we already have strong health warning measures in place, we will continue to monitor the evidence. As has rightly been said, we want to be evidence-led in the measures we seek to introduce. I want to see the success of such measures in Canada and elsewhere so that we can use that evidence at a future stage.
While my hon. Friend the Member for City of Durham has indicated that she will withdraw the amendments, I hope I have given her some reassurance that the amendments are not needed because we have the powers to do precisely what she wants to do. At some stage in the future, a Minister—it may or may not be me—may come forward with secondary legislation following a consultation.
Dr Johnson
The Minister has been clear that he believes he has the power under clause 91 to put the messages on the cigarettes if he chooses to, which is interesting to note. Will he clarify whether that remains the case with information inserts? The clause refers to the appearance of the products, the shape and the messaging. Will it include pack inserts?
Andrew Gwynne
What the amendments seek to do is to put the messages on cigarettes themselves. Those powers exist in the Bill. I do not understand what the shadow Minister is talking about, because pack insert measures are happening: we will be moving at pace to ensure that they are further consulted on, that legislation is brought to Parliament and that we get the pack inserts in place. As far as dissuasive cigarettes are concerned, that is not our intention at this stage, but powers exist in the Bill for a Minister to consult and bring forward secondary legislation to put health warnings on individual cigarettes should Parliament and Government decide that that is the right thing to do.
Clause 91, included in part 5, provides the Secretary of State with the powers to make regulations about the future of vaping products, tobacco products, tobacco-related devices and nicotine products as well as cigarette papers and herbal smoking products. The clause would allow the Secretary of State to regulate what information should be provided on a product as well as the size, shape and appearance of a product.
It is vital that we reduce the appeal of harmful and addictive products to children. A key part of that is through how these products appear themselves. There are currently no limits whatever on what a vape can look like. As we heard in evidence, there are vapes that look like highlighter pens and computer pen drives. There are vapes that look like mobile phones. There are vapes that are concealed in hoodies so people can vape through the string of the hoodie. These are pernicious attempts to hook young children and adolescents on nicotine products. That is why the measures are so crucial.
Dr Johnson
We had a little search at lunch time and found some examples that may contravene the law. Can the Minister advise to where we should refer those for enforcement?
Andrew Gwynne
Of course, trading standards enforces the sale of these things, so if the hon. Lady has concerns about particular products being sold in the online sphere, the first port of call is trading standards, which can investigate and take the appropriate action.
Regarding enforcement of online sales, the Bill enables Ministers in England, Wales and Northern Ireland to introduce the licensing scheme that we have already debated for retail sale, including online retail sale, of tobacco, vapes and nicotine products. Penalties will be capable of being brought against retailers who do not adhere to sales regulations. Obviously, as we have discussed —I do not want to tread on old ground—we will consult on the details of the licensing scheme before regulations are laid. Moreover, in the financial year 2025-26, this Government will invest a total of £30 million of new funding for the enforcement agencies, including trading standards, His Majesty’s Revenue and Customs and Border Force, to tackle illicit and under-age sales of tobacco and vapes, supporting the implementation of measures in the Bill.
The hon. Member for Farnham and Bordon rightly raised some concerns about how long manufacturers and retailers will have to implement the changes. There will be a transition period for businesses before any of the new regulations come into force. The length of the transition will be considered as part of the consultation exercise. There is clearly a balance to be struck between acting quickly to curb youth vaping and carefully considering the unintended consequences that we are all worried about. That is why these measures are a proportionate step. However, let me be clear that we will not stand idly by while industry knowingly and deliberately encourages children to use a product that will addict them to nicotine. Industry has failed to self-regulate. The fact that a quarter—25%—of all children aged between 11 and 15 have vaped shows that self-regulation has failed. We must now intervene to ensure that this can no longer happen—or get worse.
We are not banning the sale or manufacture of vapes; rather, we are ensuring that all the measures that we are talking about happen in a proportionate way that seeks to remove the harm and risk to our children and future generations. However, let me be clear that industry self-regulation has failed. That is why I call on hon. Members to support clause 91.
Mary Kelly Foy
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 91 ordered to stand part of the Bill.
Clause 92
Contents and flavour
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
This clause provides the Secretary of State with powers to regulate substances, and the amount of a substance, used in vaping products, tobacco products, tobacco-related devices, nicotine products, cigarette papers and herbal smoking products.
We know that the use of tobacco products and herbal smoking products can increase when they are flavoured or are used alongside flavour accessories. For instance, menthol cigarettes appeal to young people because, compared with non-menthol cigarettes, they make it easier and less harsh to inhale smoke. That is why the sale of menthol-flavoured cigarettes was rightly banned in May 2020 by the previous Government, and I give credit to them for moving on that issue.
It is therefore very concerning that industry has used the same tactics for vaping and nicotine products. Research shows 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. We have heard a lot over the past few weeks, particularly from the shadow Minister, as well as from others, about flavours such as gummy bear and rainbow burst. Unicorn milkshake was another favourite of the shadow Minister—not that I am suggesting that she vapes, just that it is one of her favourites to refer to.
Dr Johnson
I would rather the Minister said that it was a flavour I have commonly referred to than a favourite flavour, because I honestly cannot tell him what a unicorn’s milk tastes like.
Andrew Gwynne
I would not have a clue either, because I am one of those boring individuals who has neither smoked nor vaped. I am now 50 years old, and I do not intend to start either in my next half century—now that I have had my liver check, I know that I am going to live for the next half century.
There is no reason why flavours such as gummy bear, rainbow burst or unicorn milkshake should be made available. They clearly target one audience, and one audience only: children. We cannot let industry repeat the same tactics it used to hook a generation of children on cigarettes by enticing the next generation to start and continue vaping.
Furthermore, some specific substances can increase the risk of harm to users and must be properly regulated or banned completely. Equally, any tobacco accessory that imparts flavour should also be banned. The clause will mean that the Secretary of State can close the current loophole.
However, we recognise that vape flavours can be a consideration for some adult smokers, as was mentioned earlier, and particularly those seeking to quit smoking. To avoid any unintended consequences, the scope of future restrictions will have to be carefully considered, with a statutory duty to consult on any proposed restriction, to ensure that we get the balance right.
What we do not want to do is dissuade people for whom vaping is the best stop smoking tool from stopping smoking. The advice of the chief medical officers of the four nations was clear: “If you smoke, it is safer to vape. If you are a child, you should never vape and never smoke. If you are a non-smoker, the same is true: never vape, never smoke.” We have to ensure that we do not throw out the baby with the bathwater and revert those who we wish to stop smoking back to smoking.
That point has to be carefully considered when the consultation and the secondary legislation comes before Parliament, but let me make it clear: we will not allow these child-friendly flavours that are blatantly in existence for one purpose only, which is not to stop adults smoking; it is to hook kids on nicotine. That has to stop, and that will stop.
Dr Johnson
Does the Minister want to comment on the range of flavours available, and whether he thinks that has any impact?
Andrew Gwynne
It absolutely does. That is why these powers are framed in the way they are. It is something that the Secretary of State and Ministers, when considering the balance that I have just talked about, may well take into consideration. We still want vaping to be accessible and available to people as a stop smoking tool. We recognise that one of the attractions of vapes over cigarettes is that they tend to taste nicer—or so I am told. If cigarettes taste anything like how they smell, I can understand why that is the case.
What we do not want to do is create a loophole that retains the attractiveness of vapes to children. The range of flavours will also have to be considered in any future consultation so that there are no unintended consequences. We must get the balance right and stop these awful products being promoted to kids in the most pernicious way while respecting the fact that for a number of people, vapes are a route out of smoking. With that, I commend the clause to the Committee.
Dr Johnson
I am grateful to the Minister for setting out aspects of the clause, and particularly for his passionate speech making clear that he wants to see vaping among children stop. When I first brought forward on the Floor of the House measures on vaping, it was with the intention of protecting children from the rapidly rising trend before they became hooked on a form of nicotine. I am grateful that the Minister seems to share the same passion for protecting children; that is good to see.
Clause 92 deals with the contents and flavour of tobacco, vaping and nicotine products. It provides for the Secretary of State to make regulations on the flavour of relevant products and the substances that may be included and their amount in any relevant tobacco, vape or nicotine product.
Sarah Bool
I agree. I think the hon. Member makes a valid point. It is part of the bigger discussion that we have to have, with the ability to be a bit more agile in how we actually decide, because I do not want us to take the wrong approach and have unintended consequences.
Again, that goes to another point that the shadow Minister raised, about what flavours are potentially harmful in themselves. The hon. Member for Cardiff West is right and I take his point about flavours such as bubble gum entirely, but apparently even cinnamon, vanilla and butter are toxic. They are fine for us to eat —butter in moderation, of course—but inhaling them is a different matter. I think it will be very interesting to see what combinations are used and what the impact is, because, apparently, if certain flavours and chemicals are combined, that can actually be even more toxic than before. That is something that the regulations, and some of the research, will have to look into for us.
Interestingly, the Royal College of Physicians also gave its view on this topic in the written evidence. That was along similar lines but slightly different. It says:
“While we know flavours can attract young people to vaping, the use of flavours by adults trying to quit smoking is an integral part of the effectiveness of vaping as a quit aid. We know that many adult smokers report wanting to move away from the taste of tobacco. Other nicotine replacement therapy…products, such as gums and lozenges, also have fruit flavours. The RCP supports limiting the number of flavours available and recommends restricting flavour descriptors. Bland descriptors, alongside limiting the number of flavours and removing those most popular with young people non-smokers from vaping without the unintended consequences of perpetuating smoking for adults.”
I agree with the points that have been made, but I think that we have to be careful about how we decide which flavours are used and their range. I take the point that we often want to move people away from tobacco, because a tobacco-flavoured vape is not pleasant, or so I am told, but my concern is that, if someone do not necessarily have a tobacco-flavoured vape, then with something as nice as peach and mango—which a vaper I know really likes—people will actually vape more than they ever smoked because it is tastier for them. I think we will really have to look into that as well.
I would also like some further clarity from the Minister on clause 92(3) and the clause what regulations the Department is currently thinking about, particularly when it comes to the imports of any of these vaping products.
Finally, subsection (4) that that there will be
“provision for a determination to be made by a person authorised for the purpose by the Secretary of State”
to make the decision on the flavours. Who is in mind to be given those powers? A bit more clarity on that would be much appreciated.
Andrew Gwynne
Let me start with the point made by the hon. Member for South Northamptonshire on the need for agility. I have argued in respect to a number of clauses that we have to be agile. That is why the Bill is permissive in nature. It grants powers to Ministers to consult and bring forward secondary legislation at further stages. It also allows Ministers to amend the regulations, if set, or to introduce new ones if not at a future date, without having to go back through the primary legislation processes, to make the Bill always fit for purpose and for the future.
That is the case in clause 92. As I said in opening, we recognise that vape flavours are an important consideration for adult smokers seeking to quit smoking. To avoid unintended consequences on adult smoking rates, the scope and impact of any future restrictions will have to be carefully considered by Parliament, following consultation, in secondary legislation. We will consult further on any regulations on flavours before they are laid in Parliament. This is really important—I can assure Members that we are not saying here and now what the changes are likely to be. We want them to be considered based on the evidence and consultation, because we want to get the balance right between preventing youth vaping and not having the unintended consequence of pushing people away from vapes as a smoking cessation tool, thereby missing our ambition for Smokefree 2030.
Dr Johnson
Can the Minister give us some timescales for the consultation and explain the various details that it will add to the consultation done by the previous Government?
Andrew Gwynne
Again, the shadow Minister is skipping ahead of herself. We have to get these powers through Parliament. I cannot tell her the scope or extent of the consultation, the consultees, or the nature of the restrictions we may seek to bring before Members, because Ministers do not have those powers yet. All I can do is give her assurances that these matters will be looked at, at speed and within good time, to bring a set of regulations before a Delegated Legislation Committee in due course.
We want to get the balance right, as Members across the House have amplified not just in this debate but throughout the course of proceedings on the Bill, because these are big changes, and they are landmark changes. If we get them right, they will do everything we aspire the Bill to do not just in tackling child and youth vaping, but reaching a Smokefree 2030. If we get them wrong, we could end up with smoking rates increasing, which is not what we want to see. We could see children starting to smoke again, which is absolutely not what we want to see. We could see all the work done in recent decades start to be undone. That is not the ambition or aim of the Bill. The aim and ambition of the Bill is to make smoking history and crack down on the scourge of youth vaping. I believe that if we get the regulations right, we will meet that aim. That is a good thing.
Gregory Stafford
The clause in essence allows the Secretary of State to regulate emissions from tobacco and nicotine products, ensuring that harmful substances released during use are controlled. This is a vital measure to protect smokers and non-smokers from hazardous emissions. My first question is on that last point: can the Minister confirm that the regulations will be designed to protect those who suffer from second-hand smoke? The evidence on vaping is weak, and the evidence on the effects of second-hand inhalation of vapour from vapes is even weaker, but some studies suggest that it is dangerous, especially given that, according to Public Health England, while cigarette smoke contains more than 7,000 chemicals, 70 of which are known to be carcinogens, there are significant problems—as my hon. Friend the shadow Minister said—from the chemicals that are, and potentially could be, in the vapes.
The clause ensures that the regulations can limit the release of those toxic substances and therefore reduce health risks for the users and those exposed to the second-hand smoke. We know that second-hand smoke causes serious health issues, including heart disease and lung cancer. Studies from the World Health Organisation suggest that exposure to second-hand smoke is responsible for 1.2 million deaths globally each year; I suppose, in the world’s population, that does not sound like a vast number, but given the fact that those people have done absolutely nothing wrong and are often, unfortunately, children and young people who suffer smoke from their parents and carers, I think it is worth controlling and regulating. Stronger emission controls would definitely reduce those deaths. As my hon. Friend the shadow Minister said, while vaping has been deemed less harmful than smoking, concerns remain about long-term exposure to certain chemicals in the e-liquids. The clause allows regulators continually to assess and update guidelines on vaping emissions—I welcome that—to reflect the latest scientific advice.
I am certain that the industry will push back on this measure, as they have done on many other points, but I hope that the Government are ready for any possible legal challenges on the regulations when they are brought in. Unlike traditional cigarettes, e-cigarettes or vapes have a vast array of formulations, and therefore creating effective regulatory standards that balance the harm reduction with the safety will be complex. Will the Minister outline how he intends to go about that once the regulations are in place?
Andrew Gwynne
As has been said, the measures in the clause make provision for the amount and nature of substances that may be released into the body by vaping products, tobacco products and related devices, nicotine products, cigarette papers, and herbal smoking products. The Tobacco and Related Products Regulations 2016 set out the maximum levels of tar, nicotine and carbon monoxide emitted by cigarettes, and they require all cigarette brands to be tested for emissions. However, we do not have the same requirements in place for vapes and other nicotine products, and the clause expands the scope so those products can be regulated in the same way.
Andrew Gwynne
The clause enables the Secretary of State to place restrictions on the display of non-compliant images for vaping products, nicotine products, cigarette papers, herbal smoking products, tobacco devices and tobacco products. That is so that displays of products can be brought into line with any packaging or other requirements about a product’s features established in regulations made under clauses 90 and 91, which we have just discussed.
To be clear, the restriction already exists for tobacco products. The Tobacco and Related Products Regulations 2016 make it an offence to publish non-compliant images of unit or container packs of tobacco products targeted at consumers. The clause merely expands on the existing provision to include all products, such as nicotine products and vaping products, because we have seen how producers and retailers display products in colourful and attractive ways to entice customers, sometimes using product images that are clearly enhanced. As we seek to restrict the packaging of products through secondary legislation, it is important that producers use accurate images of their products. That is what the clause is for. I acknowledge, that there is a real debate to be had—not quite to the extent set out by the hon. Member for South Northamptonshire —on the power of social media to push imagery to young people, particularly when it comes to smoking and vaping.
It is no coincidence that platforms such as TikTok are exploiting the fact that they can not only get imagery to young people, but, as a consequence, advertise products to them. That is why just this week, I have signed off an advertising campaign against youth vaping that will appear on TikTok. We have been given permission by Downing Street—one of only a handful of Departments allowed to advertise on TikTok—and we are doing so is because that is exactly where the tobacco and vaping industries are. We will not give them a free-for-all; we will go in there with some hard-hitting imagery, show how we protect young people’s lungs and challenge the narrative that the influencers are pushing.
It reminds me—I may have mentioned it already—that I have had not one, two or three, but four articles in LADbible. Since I have started referring to LADbible, it has popped up on my social media all the time, so somebody is listening in. That is precisely what one of the articles was about, because LADbible was incredibly concerned about the imagery from influencers that is being pumped out to young people, undermining all the public health messages that we have been pushing for decades. I was asked, “How do you challenge to a young person this image of a sexy, good-looking influencer with a cigarette or a vape?” It is very reminiscent of the imagery that we got in the 1950s and 1960s of film stars with a cigarette, and so on. That has been reinvented on social media.
Sarah Bool
The Minister is making a powerful point. I was concerned about the idea that an influencer might be able to publish an image of a retail packet that is not compliant. At the moment, there are no restrictions, especially if they are abroad. Obviously, some of the influencers with the biggest followings are outside the UK, and I am therefore not sure how we ensure compliance, other than by doing what X does with community notes that pop up. I think there will have to be a discussion with Instagram and some of the other companies, because they are making money out of it. Indirectly, I think the Bill does catch this issue, but I thank the Minister for his clarity.
Andrew Gwynne
Again, that is the beauty of the permissive nature of this Bill. Where loopholes are being exploited, Ministers will be able to come back to Parliament with a simple piece of secondary legislation, through a Delegated Legislation Committee. The shadow Minister said that secondary legislation does not quite get the scrutiny of a Bill, but it does get up to 90 minutes —I am sure she would find it easy enough to fill that. There is therefore scrutiny of secondary legislation.
We are very aware of this issue, which is why I have signed off the anti-youth vaping campaign on TikTok, which will hopefully be going out fairly soon.
Dr Johnson
I welcome the steps that the Minister is taking on social media platforms to discourage young people from vaping; that is a very welcome intervention. Given that he has appeared in LADbible articles, I am curious to know whether he will appear in the TikTok videos. I do not have a TikTok account, but it might almost be worth joining to watch them—I think that would be great.
How does clause 94 relate to the advertising clauses, which we have not discussed yet but will discuss later? Presumably, if an influencer is receiving revenue, they are effectively advertising a product.
Andrew Gwynne
I am not sure whether my social media clips from this Committee or any other parliamentary proceedings are quite made for TikTok, but who knows?
Andrew Gwynne
I agree with the hon. Gentleman: I do not think so either. I do not think I would get terribly many followers, and I am not sure I could ever be described as an influencer, except perhaps for Government Members—[Interruption.] Maybe. Even that has come to a Division. Politics can be brutal.
I will go into more detail on how the later advertising clauses interrelate with this clause when we discuss them, because there are clearly cross-overs. The clause will enable the Government to make restrictions that would prohibit an online retailer having pictures of products with non-compliant packaging on their website. That is to make sure that when we bring in the restrictions on the packaging, there cannot be images of a completely different product online or in the shop that would potentially attract children and young people to obtain it.
Hon. Members have asked why we need this clause if we are banning advertising. Without this power, businesses could continue to publish images of vapes that appeal to children both online and in store. As we know, research clearly shows that bright colours and cartoon figures have helped to fuel youth vaping. This clause will stamp that out.
The shadow Minister raised a fair point about clothing. Clause 123, if we ever reach it, contains powers on brand sharing. That could, subject to consultation—that is the caveat that most of these clauses seem to have—capture the images and logos that she mentioned.
On enforcement, clause 104 sets out that regulations can make provisions on enforcement, so that detail will be set out in regulations.
I will write to hon. Members about moving images to make sure that they are covered.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clause 95
Registration
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
The clause allows the Secretary of State to make regulations to establish a register for tobacco, vaping and nicotine products for their permitted supply in the UK. That will improve the existing regime, which has separate notification processes for tobacco products and nicotine vapes. Non-nicotine vapes and other nicotine products are not currently required to be notified. The clause will give the Government the power to establish a registration scheme covering all these products.
Currently, before they can sell nicotine vapes and tobacco products on the UK market, producers must notify their products to the relevant authority. For nicotine vapes, that is the Medicines and Healthcare products Regulatory Agency, or MHRA, and for tobacco products it is the Department of Health and Social Care. That is meant to help to ensure that products comply with our regulations and that retailers are confident that they are selling notified and regulated products. However, there are weaknesses with those systems, and both fail to support enforcement agencies adequately. The clause allows us to establish a more robust scheme for the registration of products. The details of the scheme will be set out in regulations and subject to consultation.
However, in future, if a trading standards officer found a product to be different from its registration details, that product could be eligible for removal from the register until the information is updated. That will greatly improve the confidence of enforcement agencies in addressing issues with non-compliance. Unless they are well regulated, these products can be harmful, particularly for young people. Establishing a new registration system will play an important part in compliance to make sure that products meet the regulatory requirements and are safe for consumers, and it will improve retailer confidence in the products they are selling. I therefore commend the clause to the Committee.
Dr Johnson
Clause 95 relates to the registration and information requirements of the relevant products. The Tobacco and Related Products Regulations 2016 require producers to notify the Government when they place or intend to place nicotine-containing vapes in refill containers and tobacco products in the UK market. Regulation 31 deals with refill containers and regulation 22 deals with tobacco products. Producers must make their submissions to DHSC for products to be sold in England, whereas in Scotland, the Medicine and Healthcare products Regulatory Agency is responsible for publishing these notifications.
Is the MHRA the right organisation for this? We heard in evidence that when some consumers see that a product has been regulated by the Medicine and Healthcare products Regulatory Agency, they believe the product to have been medically tested for safety, which is not the case. They are not tested to the same standard as the other products that the MHRA tests, such as medicines to be prescribed by the doctor or chemist. It is misleading; I wonder whether the Minister also thinks it is misleading. In her evidence, Dr Laura Squire said that it concerned her. For Northern Ireland, the EU common entry gate for producers can be used to place products on the Northern Ireland market. The notification does not currently apply to nicotine-containing vapes and refill containers, so this clause is an improvement.
Clause 95(1) allows the Secretary of State to make regulations to establish a register for products such as tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. Subsection (2) provides that these regulations
“may impose prohibitions or limitations on the supply of an unregistered product in the course of business.”
Subsection (3) outlines the matters that the regulations may address, including who will maintain the register, who will be eligible to be registered, and the need for producers to provide information to the registrar. Regulations may also cover the content of the register, the expiry, renewal, cancellation or suspension of a product’s registration, and the publication of the register. Furthermore, the regulations may set fees for registration or continued registration, which could be used to cover the cost of administering the provisions.
We heard in evidence that although products are registered, there is no ongoing monitoring of those registered products. We have seen examples where even supermarkets have been selling products that did not meet the requirements of notification. What will the Minister do to ensure that the regulations he produces can be adequately adhered to and enforced?
Subsection (4) specifies that regulations made under the clause may require producers to provide various types of information, such as reasons for including ingredients in a product, images of the product or its packaging, information about the risks, details about substances released into the body, information about the producer’s operations, and details about any nominated responsible person. That all sounds sensible, but we are asking the industry to mark its own homework. I wonder if the Minister has any comments on how reliable industry-provided information might be on some of these, particularly in relation to risk, because the history of the industry is not strong in that area.
Subsection (5) clarifies that the regulations may allow the retention of payment of register fees into the Consolidated Fund, which we discussed last week. Subsection (6) reiterates that the regulations made under the clause will be subject to the affirmative resolution procedure, which we have also talked about.
What is the rationale for the intervention in this clause? As I understand it, to support a compliant market, it is important that we have products that are registered and can be shown to meet the regulations. This clause will help to ensure that legitimate products are available to sale and will let retailers know what the products are.
Dr Johnson
I am suggesting that there is a difference between regulating a product as a medicine, which requires stringent steps, and a statement of what the product does, the effect it is going to have on the body, the claims made about it, and why it is safe, or safer than having the problem that it is treating. Some drugs make people quite unwell but people are willing to trade off being unwell for being cured. For example, cancer drugs make people very poorly at times, but it is considered better to have chemotherapy than cancer, because cancer leads to fatality. That process lets a consumer know that the product has been robustly tested and that the quality is there. On an ongoing basis, someone is checking that the paracetamol bought from a supermarket contains the ingredients that it says it contains on the packet. This notification process does not do that. It says to a company, “Come along and tell us what’s in it. We’ll believe you. Thank you very much. We’re not going to check and we’ll hope it’s all right.” That is a weak process.
It is not surprising that there is a weaker process for a consumer product than for a medical product. However, having it also done by the MHRA could lead consumers to believe that the vapes have gone through the first process and not the second process. I think that is misleading—some of the Minister’s hon. Friends are nodding vigorously—and was something brought up by the MHRA itself in response to, I think, my question. The MHRA answered that this could mislead consumers to think that it is medical regulation of vapes when it is not. There is only a point in having a register if it will be used to achieve something. Having a list of stuff does not make a great deal of difference if no one is going to check that the list is accurate, and I cannot see that there is any great step to say that the list is accurate. What comes with a register is important, as well as the register itself.
The rationale, as I understand it, of the register is to support the compliant market by having products registered and shown to be meeting the regulations. Again, I understand that this registers that a company has said that it complies with the regulations but I cannot see where the provisions say that there is anyone checking. That may be something that the Minister will add, maybe in relation to later clauses.
The aim of the register is to help to ensure legitimate products are available for sale, and to let retailers know what they are. When a retailer—a chap running a corner shop—wants to buy some of these products to sell, and he has a licence, and he has checked people’s ages under the provisions of the earlier clauses, and he wants to sell the product, he wants reassurance that the product is genuine and not illicit. Checking this register for that product would be a step that a reasonable retailer can take to check the product is legit, or at least said to be legit.
Both industry and enforcement agencies have asked the Government to update the current notification systems. Although that was not part of the consultation process, I understand—and the Minister can perhaps clarify this—that subsequent consultation will be required to better inform the new registration system and its implementation.
The Government would like to ensure that non-nicotine vapes and other nicotine products being sold in the UK market are subject to the current notification requirements of nicotine vapes. That is in line with the consultation undertaken by the previous Government in 2023, when the majority of responses were in favour of regulating all non-nicotine vapes and other nicotine products under a similar regulatory framework as nicotine vapes. Again, I ask the Minister to consider whether the MHRA is the best organisation to be providing that service if it is not doing what most of the public may consider it is doing?
At the moment, if enforcement agencies find that the product is notified as not being compliant with regulations, they are unable to update the notification accordingly. The new powers will ensure that the register of products can be updated, and therefore that items can be removed if they are not meeting requirements. To ensure that we can effectively monitor the products and support enforcement, it is necessary for the Government to have the power to introduce the registration regime. I am not against the principle of that, but I think it needs to be well thought through. Perhaps it will be when it comes to the regulations in the statutory instrument—when we no doubt meet again. Adding regulations in general is not necessarily a welcome thing, but in that case it may be useful.
There will be some costs to industry, due to measures including product registration requirements, particularly on non-nicotine vapes and other nicotine products. That may put off producers with lower standards and may improve the general safety standard of the industry, but it is also possible that those with lower standards will not bother, so the Minister needs to explain what the plan is for that—and also the plans for factories.
The registration requirements will also mean that consumers can access more information on non-nicotine vapes and other nicotine products. I ask the Minister: will consumers have access to the information on what all the ingredients are? Will there be thought given to people with allergies who wish to use those products? There may be a cost to companies that have to request information from their suppliers and gather existing data on non-nicotine vapes and other nicotine products. Companies will also have to spend resources on completing the required paperwork.
Based on the impact assessment for the Tobacco and Related Products Regulations, I understand that the Government expect those tasks to take between 10 and 15 hours per notification, plus or minus any translations or translation costs that may be required. Given that any companies notifying the UK will be selling or operating in the UK, translation costs should be negligible. Therefore, it will be 10 to 15 hours work, plus currently a small fee of £150 to notify of a nicotine-containing vape product. There is also a fee for tobacco and herbal products set at £200, a fee for any modifications at £100, and a further annual reporting fee of £100.
A new fee will be imposed to register products, which will likely be in line with the current fees for tobacco, herbal and nicotine-vape products. Non-nicotine vape products and other nicotine products that were not subject to notification of fees will be charged a fee to register, with the amount to be determined through further consultation. That is another case where essentially what is happening is that the Government are taking a lot of power to do things, but not being terribly explicit about what they intend to do with them. While the Minister said that he is going to go like the clappers, we still have no clear indication of how fast those clappers are clapping away.
For potential new information requirements, there may be additional costs with acquiring that information. Some manufacturers may already collect new information, in which case there will be no additional costs other than staff time spent collating and submitting. Those costs may be more burdensome for smaller companies. The changes will be achieved through secondary legislation, which will be subject to consultation to determine what information should be notified, how the registration will operate, the process for any non-publication of notification and the level of fees associated with costs administering the system.
The impact assessment says that the Bill will also give the industry enough time for businesses to make any changes before the future regulations come into force. Again, the Government are saying that they are going to give enough time, and they are going to go like the clappers. But how fast are the clappers going and how much time is enough for industry? I still do not think we have any idea.
I have a couple of questions. In subsection (3)(a), where the regulations make a provision about who is to keep the register, will the Government clarify what that Government body or third-party private entity will be? Will it be the MHRA, or will it be something else?
Subsection (3)(b) gives the Secretary of State power to regulate eligibility for registration. There is room for debate about what constitutes eligibility and whether small businesses or new entrants will face excessive regulatory hurdles. The power may also raise concerns about what happens if a product or business fails to meet the requirements. Will they be shut out of the market? Will they be forced to make changes? How will that work?
Paragraphs (c) and (d) of subsection (4) require producers to provide information about potential risks to human health and substances released by products, but the wording is relatively broad and could raise questions about how tobacco and nicotine product manufacturers will assess and report risks. What level of scientific evidence will be required? How will they balance transparency with proprietary information or concerns about trade secrets? What will happen if the product risk assessment is disputed, and how will disputes be resolved?
We may have a situation where the vape manufacturer says that their product and the flavourings are safe but the evidence from medical professionals suggests otherwise. Will they provide the information themselves or will they fund other people to do it? Will that be done under a general pool, or will it be specific to that product at that time? How much influence will the industry have over the results? If we ask a specific question, we will get closer to the answer we want.
In the case of vaping products specifically, the health risks are not yet fully known. It is fair to say that there is some debate on the matter, even among respected authorities. The American Lung Association claims that vaping is linked to a condition called popcorn lung, and the Harvard Medical School lists popcorn lung under the risks of vaping. However, the NHS and Cancer Research assert that vaping does not cause popcorn lung, so there is a dispute. Clearly, more research is needed, but in the meantime how will the regulations in the clause address an issue like this?
Subsection (5) introduces the idea of fees for registration, including provisions that allow the fees collected to reflect the cost of regulation. It raises issues about how the fees may affect small and independent producers in a market that is taxed. Do we have any indication about what the fees may be? Could the cost of registration become prohibitive for small companies and push them out of the market? Will there be mechanisms to ensure that the fees are not too burdensome for newer and small businesses, or is the intention to limit the number of products on the market by making the fees higher so that we get a smaller number of products and are therefore more able to regulate and assess what is in each of them?
Andrew Gwynne
I welcome this debate because it raises some important questions. First, we have had a long discussion about the MHRA, and under the existing legislation it is the appropriate body. I want to make one thing very clear by emphasising the point that the shadow Minister rightly made and that the MHRA also made in giving evidence to us on the first day of the Committee: no medically approved vape is available. Vapes being registered through the MHRA does not make them medically approved for health purposes. It is really important to keep emphasising that no vape currently available in shops in any part of the United Kingdom is medically approved for health purposes by the MHRA.
I take very seriously the point the shadow Minister makes about whether the MHRA is the appropriate body going forward for this aspect of the registration scheme. We are considering how a more rigorous registration scheme can best be delivered given the nature of these products, which I again emphasise are not healthcare products. We are scoping a potential new home for the registration scheme. Officials at DHSC and the Office for Product Safety and Standards have already met to discuss learning and best practice from other product registration schemes. I hope that gives some hope to Members. While the MHRA is currently the appropriate body, at some stage we might well decide that it is not necessarily the best place for this new registration scheme to sit.
Dr Johnson
I thank the Minister for that. I am grateful that he is looking for a new home for the regulation that more accurately reflects what is being done.
Mr Barros-Curtis
I agree that that sounds promising. I am sure that the Minister and his officials are all over this, but to be clear, will the Bill as drafted give them the requisite flexibility? In two years’ time, should that change have happened, could the requisite regulations be drafted to bring that into effect without needing to come back to the House?
Andrew Gwynne
Yes, that is absolutely the case.
On the shadow Minister’s question about the ingredients in the vape—or any other product, for that matter—if those turn out to be different from those in the register, I reiterate that the product could be eligible for complete removal from the register until the information is updated. That is precisely the measure that enforcement agencies have asked for to give them the greater clout that they need when it comes to non-compliance: once those products are removed from the register, they would not be permitted for sale—end of.
Dr Johnson
Let us look back to the issues of the Elfbar items that had, as I understand it, a higher number of milligrams per millilitre—certainly a higher nicotine content—than they were supposed to. If there is no penalty other than being removed from the register until the information is updated, could not someone less reputable say, “Well, I’ll put on what I want to put on; if I get caught, I will at that point say what is really in it and go straight back on the market”? Is a period of not being able to sell the product envisaged? Is a stiff fine envisaged? What is the penalty envisaged or will the register simply have to be updated?
Andrew Gwynne
As the clause stands, the product would be removed from the register and could not be sold. Alongside that, we aim to establish a testing regime to check regularly that products on the shelves are what they say they are. That will help to support overall enforcement and ensure that all registered products are safe for consumers. As with other matters, all will be set out in regulations, subject to consultation. Ultimately, all this is down to the regulation-making powers. All of part 5 basically sets out the framework for what can be done in future, subject to regulations.
On the point about ingredients—the shadow Minister made this point twice, in particular about people who may be allergic to certain aspects of the ingredients in a product—under the TRPR, products already need to list the ingredients. We have sought to introduce powers, which we covered during our debates on the earlier clauses, whereby Ministers would be able to request even more information on packets or products, should that be deemed necessary. We have the measures already in place through the TRPR on publishing the ingredients. Were Ministers in future to decide that a particular compound was highly allergic to certain people so there needed to be further warnings on packets, they would have the power to make the necessary alteration through the usual processes of consultation and secondary legislation.
Dr Johnson
Will the Minister clarify whether the regulations require someone to print the ingredients in full on the vape packet, on the vape itself, on a website or on all three?
Andrew Gwynne
I will get back to the shadow Minister on that because I suspect that the House is about to divide, and I need a bit of inspiration from the box on the exact answer. I would not want to mislead the Committee inadvertently.
Clause 103 covers offences to provide false or misleading information. It will allow for the punishment of imprisonment or a fine, or both. I hope that covers the concern.
Question put and agreed to.
Clause 95 accordingly ordered to stand part of the Bill.
Gregory Stafford
Yes, absolutely. I think the shadow Minister is completely right. There is that point, in terms of potential fear—if that is the right word—for this person if they are not in a senior position. Indeed, some of the less scrupulous companies may seek to intimidate said compliance officer. Also, to be frank, a lack of expertise in this area could lead to ineffective compliance oversight. While that is something undesirable in and of itself, it can also potentially have negative impacts on the consumer.
Finally, could the Minister say a bit about the potential legal-liability issues of this person? Nominating a single individual raises questions about personal legal liability. Will this individual be legally responsible for compliance —or non-compliance—or will that be the chief executive or someone else, or will there be corporate responsibility or liability for breaches of the standards? I really think that provisions should be in place to ensure that the company—the manufacturer, the producer—bears the ultimate responsibility, rather than this named individual.
The clause needs a clear set of qualifications and criteria regarding the experience of said responsible person. We should make sure that the accountability is structured to prevent scapegoating of individuals, as the shadow Minister has mentioned, and some kind of training programme is in place to support those compliance officers in their roles so that they can enact their duties responsibly. We should also ensure that, should something go wrong, it is the company that holds ultimate responsibility and liability in law rather than that individual.
Andrew Gwynne
I am grateful for this discussion today, and particularly for the amendments tabled by my hon. Friend the Member for Dartford. His amendments would require the Government to make regulations under clause 96 within six months of Royal Assent to the Bill, and for the required information to be published.
I am really sympathetic towards attempts to increase transparency in the tobacco industry, and we take our obligations as a party to the World Health Organisation framework convention on tobacco control very seriously. Indeed, we take our membership of the WHO very seriously, and, given events on the other side of the pond this week, I think it needs a champion on the world stage. Multilateralism works, and the globe is a better place for having the World Health Organisation. It is not perfect and it needs reform—like a lot of major multilateral organisations—but if we did not have the WHO, we would have to invent something pretty similar to it.
Tobacco and Vapes Bill (Ninth sitting)
Andrew Gwynne ExcerptsTuesday 21st January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 January 2025 - (21 Jan 2025)
Jack Rankin
I thank the hon. Member for providing that clarity. That is good to hear, but it is important to put on the record that we in this House should apply the same rules to ourselves as we apply to our constituents.
Again, as a non-lawyer, I ask the Minister for some clarification on the implications of the non-criminal liability of the Crown in clause 47(2) and how that sits alongside the reference to
“persons in the service of the Crown”
in subsection (4). What I am seeking is consistency between what applies in the real world and what applies to the Crown. Perhaps the Minister could say what that provision means in laymen’s terms, so that I can say to my constituents that what we are applying to them also applies to us.
I want to add to the point made by my hon. Friend the Member for Farnham and Bordon. If you will forgive me, Sir Roger, I will be a bit parochial to illustrate the point. I said earlier that the Crown is quite a nebulous concept for a legislator, and where it begins and ends is difficult to understand. It is often taken to mean the state more broadly, but I have another example, from my constituency. Windsor Great Park is Crown Estate—the arm’s length Government body that the House has been legislating on in the past weeks—but the castle itself is owned and managed by the royal household. In my casework and when dealing with stakeholders, I often find that different rules apply to the Crown Estate and the royal household. The royal household seems to have much more personal control from the monarch, whereas the Crown Estate is very much run by the trustees, effectively on behalf of the Treasury.
It would be good to understand what we mean when we talk about the Crown. It is clear from my hon. Friend the shadow Minister’s remarks that we are talking about the palaces, but it would be good to know whether the clause applies to all these different arms of the British state in some way, shape or form, or whether other provisions apply to them.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship, Sir Roger. I am grateful to hon. Members for their questions on these clauses, which are entirely technical and appertain to the treatment of the Crown in relation to the measures in the Bill. They follow a general Crown application, being broadly similar to, and mirroring pretty closely, the way other Acts of Parliament deal with the Crown. I am not sure whether the fact we have spent more than half an hour debating them shows Parliament at its best or at its niggliest, but we are having the debate none the less.
Gregory Stafford
I take the Minister’s point that the clauses are technical, but if we are not here to ensure that legislation is drafted correctly and appropriately, what are we here for?
Andrew Gwynne
We are here to ensure that the Bill gets on the statute book. I was under the impression—perhaps the misapprehension—that at least the two Opposition Front Benchers, the hon. Members for Farnham and Bordon and for Sleaford and North Hykeham, were supportive of the measures in the Bill. If so, we seem to have spent an extraordinary amount of time discussing matters that do not really affect the Bill, except in relation to the Crown.
Andrew Gwynne
Perhaps the hon. Lady will let me finish. The measures are standard practice for any Bill, but Members have put some questions to me, so I will reassure them about some of the issues they have raised. But before doing so, I will give way to the shadow Minister, who has had plenty of time to talk about this matter.
Dr Johnson
I thank the Minister for giving way. I want to echo the point made by my hon. Friend the Member for Farnham and Bordon that the purpose of line-by-line scrutiny is to do just that: to go through the Bill line by line. The Minister’s job might be to get things on the statute book for his Prime Minister and Cabinet and for the Government in which he serves, but surely he wishes to ensure that the Bill he is leading on is in the best possible condition. That is the purpose of the line-by-line scrutiny that we are in Committee to do.
Andrew Gwynne
I absolutely do with that. The point I am making is that we have just over another week to deal with these matters. If we get to the end of next week not having considered important chunks of the Bill because we have wasted time on silly little matters that appertain not only to the whole of this legislation, but to other legislation as well, and on fairly standard clauses relating to how legislation deals with the Crown, that will be on His Majesty’s loyal Opposition.
I will make progress and answer the points that were made. Why are clauses 47 and 137 necessary parts of the Bill? The presumption is that legislation does not apply to the Crown unless expressly stated as doing so. The clauses clarify that provisions in parts 1 and 6 of the Bill, and in the regulations made under them, bind the Crown. They ensure that all bodies and persons acting as public servants of the Crown are held to the same standards as businesses and private citizens in England and Wales. They ensure consistent application of the Bill across the public and private sectors.
Does the Bill bind Parliament? Yes, it does. Parliament was consulted and was content with clause 159, in particular, being included. We have already had the debate about snuff, and it will be up to the House authorities to determine the rules of the House. There is absolutely nothing to prevent there being a box at the entrance to the Chamber with the latest chief Doorkeeper’s name engraved on it—that tradition can remain for evermore—just as we have a Smoking Room, which we can no longer smoke in but which is still called the Smoking Room. That is tradition. I really do not know why Members are overthinking these matters.
Members asked why there are differences between Crown applications in the devolved Administrations. As we have already discussed, the Bill brings together legislation from across the four nations. I believe it is a triumph, because it shows the close working relationship between the Labour Government and the devolved Administrations, irrespective of the parties in power in Cardiff Bay, Holyrood and Belfast. Because health is a devolved matter, and because the Bill builds on legislation dating back nearly 100 years in some cases, there are some differences in the provisions for each nation.
Members asked why only some parts of the Bill apply to the Crown. The fact is that clauses 47 and 134 explicitly provide that parts 1 and 6, and any regulations made under them, apply to the Crown. Other measures in the Bill also apply to the Crown without the Bill’s explicitly stating so because those provisions amend existing legislation, and the Crown application reflects whether the underlying legislation applies to the Crown.
There is an established precedent that smoke-free places legislation does not apply to the Crown in England and Wales, and that it is the responsibility of the Department responsible for running the relevant part of the Crown Estate to determine what is appropriate. That is precisely what the House of Commons did when it determined that the smoking ban would apply to the royal Palace of Westminster. The same is true of all the measures in the Bill.
Members asked which parts of the Bill will apply to the Crown. Part 1 and regulations made under it apply to the Crown by virtue of clause 47.
The hon. Member for Sleaford and North Hykeham asked about Northern Ireland. Part 3 amends existing legislation in Northern Ireland, and it does not apply to the Crown. That is an existing precedent, which the Department of Health in Northern Ireland wishes to retain. Part 2 amends the existing legislation in Scotland and part 1 amends the legislation in England and Wales. That is why there is a different approach to different parts of the United Kingdom in respect of the Crown.
Members asked why we need clause 66, the technical clause relating to the Scottish Government. It is because it corrects an omission in the Tobacco and Primary Medical Services (Scotland) Act 2010, and it is being made at the request of the Scottish Government. It is a convention that in an Act of the Scottish Parliament those responsible for the enforcement of the legislation are explicitly identified as being able to make an application to the Court of Session for the purposes outlined in the clause. Scottish Ministers may take over enforcement under the 2010 Act, so it is appropriate that they are listed alongside local authorities, which is what clause 66 achieves. The clause inserts a provision into the 2010 Act, which is Scottish law. There are no impacts on the law in England, Wales or Northern Ireland. The clause is narrow and relates only to provisions in part 1 of the 2010 Act.
Members asked about overburdening the court. We are working the Ministry of Justice to ensure that the Bill does not introduce a significant burden. This is about regulatory change—and, look, most citizens are law abiding and will follow the law.
Question put, That the clause stand part of the Bill.
Andrew Gwynne
I thank the shadow Minister for the points she has raised. Definitions are needed to ensure that the legislation can be interpreted with an appropriate understanding of the technical terms, and we have opted to take a co-ordinated approach to definitions across the four nations, which will hopefully ensure clarity for the public, retailers and enforcers.
As we know, nicotine is a highly addictive drug, particularly for adolescents whose brains are still developing. As mentioned in the Bill, a nicotine product means any device, part of a device, or substance containing nicotine that is intended to deliver nicotine to the human body. There are currently no age of sale or advertising restrictions for products such as nicotine pouches—and, unlike vapes, there are no set nicotine limits. Nicotine strengths can vary from 2 mg per pouch to, in some cases, 150 mg or more. Like vapes, they can come in a variety of flavours and colourful packaging designed to appeal to children. The use of nicotine products such as nicotine pouches is increasing, particularly among young men. As we are committed to doing everything we can to protect children from becoming addicted to nicotine, it is only right to take action to control these products.
Dr Johnson
On the point about nicotine pouches, it is of concern that they may be the next way in which this industry seeks to make our young people addicted to nicotine. We have seen in places such as Sweden a plethora of these products, which are now expanding across the UK as well. I know the Minister will be looking at some proposals to restrict the amount of nicotine in the pouches. When he does so, will he consider not just how much nicotine is in them compared with a cigarette, but how much is absorbed into the body? The amount in a cigarette that is absorbed as a proportion is much lower than that of a nicotine pouch.
Andrew Gwynne
Those are important considerations for when we are developing the regulations, and I take precisely the same view as the shadow Minister. These things have to be part of that overall analysis and equation when we come to look carefully at the regulations.
The shadow Minister asked a number of questions. First, she asked whether a provisional driving licence would be applicable, and the simple answer is that it would. She also asked whether there is a loophole here with medicinal products, and whether children could be restricted from purchasing vaping substances for a future vape that may have medicinal approvals. Of course, it is important to point out to the Committee that to date no such vape exists. As per all licensed medicines, if one existed, it would be regulated by medicine regulations, which are subject to higher standards set by the MHRA.
The health advice is that nicotine replacement treatment, for example, is most effective when provided alongside expert advice. That is really important, and that is why we are putting money into smoking cessation services and why measures in the Bill will permit the distribution of free vapes by the NHS and public health authorities; we think that is entirely appropriate.
There is no age of sale restriction for nicotine replacement therapies. In extreme circumstances, for example, were there a MHRA-approved vaping device that met the criteria of a medical device, I suppose the vaping liquid could be prescribed to a child if that were appropriate. That is all hypothetical because there is not such a device approved by the MHRA; therefore, there is not the loophole the hon. Member for Sleaford and North Hykeham thinks there might be, although she is right to raise it.
Dr Johnson
To clarify the point about there being no device available, that had been my understanding as well, but Dr Laura Squire from the MHRA said in evidence to the Committee that in 2015 a vape had been approved for medical use, but had never been marketed. Has the licence for that product lapsed in some way so that it is no longer available?
Andrew Gwynne
I do not know, but I will ensure the Committee is informed by officials. My point is that it is not marketed. Therefore, there is no medical device on the UK market, and all that is currently hypothetical. We have to legislate for the future, which is why I said that nicotine replacement therapy is the most appropriate form of treatment for children. Were there a device at some stage in the future that was available for the NHS to use in a medical context—as opposed to swap to stop—then it would be appropriate for a doctor to be able to prescribe that should they wish to. However, that would be within a highly regulated medical setting, as opposed to just getting liquids from a vape shop.
Dr Johnson
Clauses 48 and 49 exempt the medicinal product and medical devices. I understand why the Minister has done that, but how is he going to ensure that the industry does not find ways of making the nicotine replacement products that are currently legal and used only for medical purposes lemonade, gummy bear or unicorn milk-flavoured, and therefore attractive to children? The Committee has heard repeatedly about the way the industry behaves.
Andrew Gwynne
We absolutely have thought about that, which is why the measures in the Bill and the powers it gives to Ministers across the jurisdictions of the United Kingdom enable regulations to be made to ensure that we always keep up with where the industry is going and—importantly—where the evidence is going. This is not just about where the industry might go; it may be that at some stage in the future there is new medical research showing that even the levels we are talking about lowering to have safety issues, and we will need to react to that.
That is why I will defend the way the Bill has been drafted, ensuring that Ministers will be able, at any stage in the future, to return to Parliament or the devolved legislatures to seek changes to secondary legislation to ensure that the measures are always relevant to the circumstances of the day.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
The Chair
I apologise to the Committee; this is quite complex, even by my standards. Amendments 25 to 31 were debated under clause 1. The lead amendment, which was similar, was negatived by the Committee on a Division, and so I am not selecting them for a separate Division. That is in my gift.
Amendment proposed: 67, in clause 50, page 25, line 34, at end insert—
“(ba) in subsection (5), at end insert “, save if it is a first offence.”
(bb) after subsection (5) insert—
‘(5A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 3 on the standard scale or a recorded police warning.’”—(Dr Johnson.)
This amendment prevents penalties for a first offence of selling tobacco products to person under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.
Question put, That the amendment be made.
Andrew Gwynne
In answer to the shadow Minister, clause 52 will repeal the offence for someone under the age of 18 in Scotland of buying or attempting to buy a tobacco product or cigarette papers. It means that it will no longer be an offence for someone under the age of 18 to buy or attempt to buy those products in Scotland. That is because Scotland is the only part of the United Kingdom in which it is an offence for those under 18 to purchase tobacco products. The repeal will align the legal approach across the whole United Kingdom. It is being done after consultation and with the full consent of the Scottish Government. With the change to the age of sale, it was no longer deemed necessary to retain this provision, as the age-of-sale restrictions apply to the sale and not the purchase of tobacco products.
Clause 53 will repeal the power for constables in Scotland to confiscate tobacco products or cigarette papers from someone in a public place whom they suspect to be under 18. Both provisions were originally made in the Tobacco and Primary Medical Services (Scotland) Act 2010. Repealing them will ensure that legislation in Scotland is in line with legislation in England, Wales and Northern Ireland. With the change to the age of sale, it was no longer considered necessary to retain the provision, as age-of-sale restrictions apply to the sale and not the purchase of tobacco products. As we have already debated, that will ensure that we do not criminalise children.
Question put and agreed to.
Clause 52 accordingly ordered to stand part of the Bill.
Clause 53 ordered to stand part of the Bill.
Clause 54
Extension of tobacco legislation to herbal smoking products
Question proposed, That the clause stand part of the Bill.
Dr Johnson
Clause 54 will extend tobacco legislation to cover herbal smoking products, which are products made from plant material and intended for smoking that do not contain tobacco. It will amend section 4 of the Tobacco and Primary Medical Services (Scotland) Act, which governs the sale of tobacco products to individuals under 18, by inserting “herbal smoking product” after “tobacco product” in subsection (1). This will mean that the sale of herbal smoking products is subject to the same restrictions as tobacco products and is prohibited to persons under 18.
The clause will also amend section 4C of the 2010 Act, which deals with the sale of tobacco-related products by persons under 18, by adding “herbal smoking product” so that individuals under 18 are also prohibited from selling herbal smoking products. This is distinct from the ability to buy them, for which there will be a rolling age; it applies to the selling of these products.
The clause will also modify section 6 of the Act, which addresses the purchase of tobacco products on behalf of individuals under 18, otherwise known as proxy purchasing. It will amend subsection (1) by inserting “herbal smoking product” after “tobacco product”, making it illegal for anyone to purchase herbal smoking products on behalf of individuals under 18.
Finally, the clause will insert into section 35 a definition for herbal smoking products. This was covered in clause 48 and clause 1; clause 54 will add it to Scottish legislation. It specifies that a herbal smoking product is one that is made entirely or partially of vegetable matter and that is intended to be smoked, but that does not contain tobacco. Given our previous debate, these seem reasonable changes to make.
Andrew Gwynne
I will not detain the Committee on this question. As the shadow Minister says, these are reasonable changes to make and are in line with the clauses that we have just discussed.
Question put and agreed to.
Clause 54 accordingly ordered to stand part of the Bill.
Clauses 55 to 57 ordered to stand part of the Bill.
Clause 58
Possession of snus etc with intent to supply
Amendment proposed: 70, in clause 58, page 29, line 19, at end insert
“, save if it is a first offence.”—(Dr Johnson.)
See explanatory statement to Amendment 72.
Question put, That the amendment be made.
Dr Johnson
Clause 65 introduces schedule 9, which will amend the Tobacco and Primary Medical Services (Scotland) Act 2010 to broaden the scope of the retailer register and make related provisions to include herbal smoking products, vaping products and nicotine products, alongside tobacco. The amendments that it makes aim to regulate businesses that sell those products in a similar way to tobacco products.
Essentially, in schedule 9, the key changes are as follows. There will be an expansion of the register: section 10 of the 2010 Act will be amended to require the Scottish Ministers to maintain a register of businesses that are selling tobacco, herbal smoking products, vaping products and nicotine products. It will ensure that all those categories are subject to the same regulatory framework as respects the register.
There is clarification within the schedule of a “registrable business”, which is now defined to include any businesses dealing with tobacco, herbal smoking, vaping or nicotine products. The term is used throughout the Act, ensuring that all relevant businesses are captured under the regulations.
The amendments that schedule 9 will make to section 11 of the 2010 Act require applicants to specify which type of registrable business they intend to operate at each premises —essentially, which products they wish to sell. Can the Minister confirm that that means that some businesses could register to sell some products but not others under the Act? Perhaps they could sell tobacco products but not nicotine products, or vice versa. The registration process will be updated to reflect those additions.
Section 12 of the 2010 Act, which deals with certifications and notifications, will be amended to require certificates of registration to specify the type of product that a business sells. Additionally, under section 13, businesses must notify the Scottish Ministers of any changes, such as if they no longer desire to sell a specific type of registrable product. The Act’s provisions concerning banning orders, offences and public inspection of the register will be updated to reflect the inclusion of herbal smoking products, vaping products and nicotine products alongside tobacco products.
In addition, schedule 9 will add new definitions, including of “herbal smoking product business” and “nicotine product business”, ensuring clarity in the application of the law.
Andrew Gwynne
I welcome the shadow Minister’s comments. Of course, health is a devolved matter. Scotland has a long-established and functioning register of tobacco and nicotine vape product retailers. The Bill will expand Scotland’s registration scheme to include retailers selling herbal smoking products and nicotine products. The Scottish Government’s view is that introducing a licensing scheme at this time would put undue pressure on local authorities and the retail sector in Scotland. In line with the Scottish Government’s tobacco and vaping framework, the technical infrastructure of the register is being improved, which has been welcomed by stakeholders. Each of the nations of the United Kingdom is taking forward an approach that best suits its population.
Dr Johnson
Clause 84 is a short clause that extends the retail register provisions in Northern Ireland. It states:
“Schedule 10 amends the Tobacco Retailers Act (Northern Ireland) 2014 (c. 4 (N.I.)) to extend certain provisions about the registration of tobacco retailers so that they apply in relation to retailers of vaping products and nicotine products.”
Schedule 10 ensures that retailers selling tobacco products, herbal smoking products and cigarette papers are covered by the scheme.
Andrew Gwynne
As the shadow Minister says, the clause extends the existing registration scheme by expanding it to businesses that sell relevant products. The register will be expanded while the new licensing regulations are introduced, ensuring a stronger and consistent enforcement regime at all times.
Question put and agreed to.
Clause 84 accordingly ordered to stand part of the Bill.
Schedule 10 agreed to.
Clause 85 ordered to stand part of the Bill.
Schedules 11 to 13 agreed to.
Clauses 86 and 87 ordered to stand part of the Bill.
Schedule 14 and 15 agreed to.
Clause 88 ordered to stand part of the Bill.
Clause 89
Power of officer of Revenue and Customs to seize and detain snus etc
Question proposed, That the clause stand part of the Bill.
Dr Johnson
Clause 89 is such an important clause in that it forms a whole part of the Bill, part 4, by itself; whereas other parts contain multiple clauses, part 4 only contains clause 89. The clause deals with the power of a Revenue and Customs official to seize and detain snus, which the Bill defines as an oral tobacco product that
“is not intended to be inhaled or chewed”.
Hon. Members will remember that snus is a tobacco product that the Bill treats differently from all other tobacco products; there is a much heftier penalty for sale and a complete ban on manufacture. In line with the fact that it is dealt with differently from other tobacco products and that it will be illegal to manufacture and import, there needs to be provision for customs officials to deal with the snus if they find it.
Subsection (1) allows a Revenue and Customs officer to
“seize any relevant oral tobacco products that have been imported and detain them for no more than 48 hours.”
I presume that 48 hours is standard; the Minister may be able to expand on that. Any products seized and detained under this clause
“must be dealt with during their period of detention in such manner as the Commissioners for His Majesty’s Revenue and Customs may direct…For the purposes of calculating the 48-hour period mentioned…any period falling on a non-working day is to be disregarded.”
The Minister will be able to confirm, but I presume that is essentially saying that, if a product were seized on a Friday at 4.50 pm, they would get all of Saturday and Sunday and until late on the Tuesday to deal with the snus and would be able to seize it for that period.
The clause says that non-working days are Saturdays, Sundays and bank holidays; that is fairly straightforward. A relevant offence is an offence under clause 9 of the Bill in England and Wales, section 9C of the Tobacco and Primary Medical Services (Scotland) Act 2010, which is inserted by the Bill, and article 4G of the Health and Personal Social Services (Northern Ireland) Order 1978, which is also inserted by the Bill.
Dr Johnson
My hon. Friend is right to probe the Minister on those questions. It is important to understand why things are chosen. The Minister has sometimes referred to things being chosen because that is the way they were before, but the writing of new primary legislation offers a not-frequent opportunity to change things that may not be working very well. When items are seized at the moment, is the Minister’s advice from his civil servants that 48 hours is an adequate period of time in which to deal with all the paperwork that presumably needs to be done? Is it too long, and could it be shorter if it needed to be?
The commissioners for His Majesty’s Revenue and Customs are responsible for dealing with the relevant oral tobacco product during the period of detention, but that will not prevent the importation of snus for personal use. Can the Minister explain why that is the case?
Andrew Gwynne
It is not illegal to consume snus in the UK—I got told off for pronouncing that in Mancunian as “snuss” earlier, but each to their own—or to possess it for personal use. Clause 89 is that is intended to form part of a robust legislative framework in relation to oral tobacco products, and specifically helps to enforce other provisions of the Bill that prohibit possession with intent to supply in the course of business. It is common practice for customs officials to seize suspected illicit goods at the border. That will now also be applicable to snus products imported into the UK. The 48-hour period is standard practice, but after 48 hours the enforcement agency is able to decide on what action it wishes to take. I hope that answers the points raised by the shadow Minister and the hon. Member for Farnham and Bordon.
Dr Johnson
I want to understand how a customs official would make such a decision. The Minister has been clear that it is not illegal to possess snus—I hope I pronounced that properly—for personal use. However, it is an offence to manufacture it under clause 7, to sell it or offer it for sale under clause 8 or to possess it with intent to supply under clause 9. How would the Minister quantify an amount for personal use? Under ordinary circumstances, one could say—
Obesity: Food and Diet
Andrew Gwynne Excerpts(1 year, 7 months ago)
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The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
I am grateful to the Backbench Business Committee for ensuring that this debate took place, and I am particularly grateful to my hon. Friend the Member for Stroud (Dr Opher) for securing it in the first place. I am also grateful to all Members for their valuable contributions. We have heard speeches from across the House, including from my hon. Friends the Members for Bolton South and Walkden (Yasmin Qureshi), for Chelsea and Fulham (Ben Coleman), for Ilford South (Jas Athwal), for Swindon North (Will Stone), for Liverpool West Derby (Ian Byrne), for Washington and Gateshead South (Mrs Hodgson), for Worthing West (Dr Cooper), for Southend East and Rochford (Mr Alaba), for Blackpool South (Chris Webb), for Bathgate and Linlithgow (Kirsteen Sullivan), for Dudley (Sonia Kumar), for Dartford (Jim Dickson), for Mid Cheshire (Andrew Cooper) and for Bury St Edmunds and Stowmarket (Peter Prinsley).
On the Opposition Benches, we heard from the right hon. Member for Wetherby and Easingwold (Sir Alec Shelbrooke), who I have to say looks so healthy as a consequence of the medication he is taking. I remember what he looked like before—he is a shadow of his former self. We also heard from the hon. Members for Newbury (Mr Dillon), for Chester South and Eddisbury (Aphra Brandreth), for Caerfyrddin (Ann Davies), for Honiton and Sidmouth (Richard Foord), for Lagan Valley (Sorcha Eastwood), for Strangford (Jim Shannon) and for Stratford-on-Avon (Manuela Perteghella), and then obviously from the Opposition spokespeople for the Liberal Democrats and the official Opposition.
The United Kingdom has an obesity crisis. It poses serious challenges to our health, adds preventable pressure on the NHS, and restricts our economic productivity. I am reassured that none of us in the Chamber today underestimates the scale or importance of the task ahead, and we all recognise the need for action. I am proud that this Labour Government have already acted on manifesto commitments in several key areas, as I will outline, but I am also aware that much more needs to be done.
Over two thirds of adults are living with excess weight, and around 36% of children are living with obesity or are overweight by the time they leave primary school. That is appalling, but while it is shocking by itself, that average hides the deep inequalities we see in obesity. Children living in poorer areas are more than twice as likely to be living with obesity than those living in the least deprived areas. That has a huge impact on our lives, increasing the risk of many serious diseases—as we have heard—as well as exacerbating mental health issues and reducing the years that we and our loved ones can expect to live in good health. Almost 22% of all working-age people are economically inactive, and much of that is due to long-term health conditions caused or exacerbated by obesity. The cost of obesity-related conditions to the NHS now stands at £11.4 billion a year, and the cost to wider society is a staggering £74 billion every year.
I am so proud that we are committed to raising the healthiest generation of children ever. That means going further on prevention and tackling the drivers of obesity. Over recent decades in the UK, food and drink that is calorie dense, nutrient poor and less healthy has become cheaper. It is vital that we ensure our policies continue to drive companies to make food and drink healthier. That is why this Government took action to uprate the soft drinks industry levy in the October Budget. That levy has already taken thousands of tonnes of sugar out of the drinks we consume every day, and I give credit to George Osborne, the Conservative Chancellor in the coalition Government, who introduced that measure. Uprating the levy is a key part of keeping it effective and continuing to drive reformulation towards healthier products.
However, this is not just about what is in our food and drinks; less healthy foods are more heavily promoted, marketed and advertised than ever before. One third of the food industry’s advertising budget is spent on marketing confectionery, snacks, desserts and soft drinks, while only around 1% of that budget is spent on marketing fruit and vegetables. It is therefore not a surprise that our children want to eat those products. One study estimated that 6.4% of UK childhood obesity is attributable to junk food TV advertising. That is why this Government have already met our manifesto commitment to lay the secondary legislation required to ensure the ban on junk food ads targeting our kids comes in from October this year. This includes a 9 pm TV watershed for the advertising of less healthy food and drink products, and a restriction on paid-for online advertising of all these products.
Jim Shannon
The Minister is giving a very comprehensive response, and it is much appreciated. One of the things I asked for in my speech—I know he will do this, but I think we could probably do it better—is to look at initiatives in each of the regions of Scotland, Northern Ireland or Wales that could complement the policy driven from here. Is it the Minister’s intention to do that with the regional Administrations?
Andrew Gwynne
The advertising regulations of course cover the whole of the United Kingdom, but this Labour Government have a good working relationship with the devolved Governments in Northern Ireland, Scotland and Wales. We have the intergovernmental ministerial meetings, and we have been liaising closely on a whole range of public health measures, including the Tobacco and Vapes Bill, directly with ministerial counterparts in the devolved Governments. I want that relationship to deepen and mature because that is good governance across the whole United Kingdom.
We know that our chances of accessing healthy food depends on where people live. Children living in less affluent areas see five times more fast-food outlets on their high streets. That is why it is so important that strengthened the new national planning policy framework. Local authorities now have clearer powers to block fast-food outlets near schools, and also where children and young people congregate, to stop the relentless targeting of children and young people by the fast-food industry. Making the healthier choice the easier choice is a major part of achieving our shift to prevention. We will continue to look at ways to support people to make and sustain changes in their diet in line with the Government’s “Eatwell Guide”.
This may be a good point at which to clarify our position on ultra-processed foods. There are concerning associations between ultra-processed foods and negative health outcomes, including obesity. However, where the evidence is not yet clear is whether the negative health outcomes are due to processing or to these products tending to be high in calories, sugar, saturated fat and salt. I want to reassure hon. Members across the House that many ultra-processed foods are already captured by the existing healthy eating advice, policy actions and regulations relating to HFSS foods. Our scientific advisory committee on nutrition continues to monitor the evidence on ultra-processed foods, and we will commission further research where needed.
In my last few minutes, I will turn to a number of the issues that have been raised. First, just to reassure the shadow Minister, porridge oats will not be banned. The majority of porridge, muesli and granola products will not be affected by the restrictions, but some less healthy versions with added sugar, chocolate or syrup could be affected. To be in scope, products must fall within one of the categories of food and drink set out in the schedule to the advertising regulations and be defined as less healthy by the 2004-05 nutrient profiling model. For example, categories include but are not limited to soft drinks with added sugar, savoury snacks such as crisps, breakfast cereals, confectionery, ice cream and pizza. Despite recent media reports, the majority of porridge products will not be affected.
The right hon. Member for Wetherby and Easingwold made a really important point about stigma, and he is absolutely right that we really have to tackle stigma. Our genetics and our will power have not changed in the last 50 years. What has changed is the food environment and that we are bombarded with marketing for unhealthy foods. We already know that the issue is even worse in some of the poorer communities.
Finally, my hon. Friend the Member for Chelsea and Fulham and the hon. Member for Caerfyrddin mentioned accessibility to healthier affordable food. No child should live in poverty; that is why our ministerial taskforce is exploring all levers available across Government to give children the best start in life. We will tackle food insecurity by rolling out free breakfast clubs in every primary school and continuing to provide free healthy food during the holidays for children who receive free school meals. It is really important that we continue with that.
There is no silver bullet for obesity. This debate has shown that obesity is not just about health; it is about food, tax, education, business, employment, advertising and more. It is both a national challenge and a challenge within local communities. Our health mission is focused on shifting towards a more preventive approach which will benefit this agenda. In addition the Department for Environment, Food and Rural Affairs has announced an ambitious new cross-Government food strategy to work with the food industry to deliver on our goals for food security, health, affordability and the environment.
Obesity is a hugely complex challenge, but tackling it is a key part of achieving the change needed in this country. This Government are committed to taking effective action and I look forward to updating Members on what we do next.
Tobacco and Vapes Bill (Seventh sitting)
Andrew Gwynne ExcerptsThursday 16th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 January 2025 - (16 Jan 2025)
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Clause 15 makes it an offence to give away or discount any vape product. That is important because discounts encourage us to buy more things. That is what they are there for; it is what promotions are for. They encourage us to buy things that we did not want or need. We do not want people to consume excessive quantities of vapes that they do not want to have, but that does happen. A cursory glance on the internet shows that numerous websites are advertising vape discount codes and vouchers offering 10% or 15% discounts on vapes, as well as giftcards that are readily available for online purchase. The clause therefore replaces section 9 of the Tobacco Advertising and Promotion Act 2002 and extends its scope, as there are currently no restrictions on businesses freely distributing nicotine and non-nicotine vaping products, cigarette papers and herbal smoking products.
In 2023 the former Prime Minister, my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak), created an illicit vapes enforcement squad, backed by £3 million. It was designed to close the legal loophole that allowed the vaping industry to provide free samples of vapes to be distributed regardless of consumer age. That was patently unacceptable, and I welcome the action that the previous Government took on the issue. I point out that giving away vapes was pretty common. In fact, my own parliamentary staffer went to a promotional event on vaping held in Parliament itself, in this very House, and was given free samples of Vuse vapes. I have been made aware by staffers that similar events take place outside Parliament, so I think that this is a useful clause and I will support it.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship, Sir Roger. May I start by not only thanking the shadow Minister for her support, but congratulating my hon. Friend the Member for Dartford on his birthday? [Hon. Members: “Hear, hear!”] It is a real pleasure that we are able to provide him with a full day’s entertainment—better than Netflix.
Jim Dickson (Dartford) (Lab)
I thank the Minister very much for his birthday felicitations. There is nowhere I would rather be than here.
Andrew Gwynne
I was just about to say, Sir Roger, that might be one thing that we have to divide on later. I wish my hon. Friend the Member for Dartford all the best for today and hope that he gets home in reasonable time to enjoy with friends and family what is left of his birthday.
I thank hon. Members for their speeches on these clauses today and earlier this week. The Government have two objectives on vaping. The first is to tackle youth vaping. Too many children are vaping and vapes are attractive and accessible to them. The Bill will bring about definitive and positive change to prevent future generations from becoming hooked on nicotine. The second objective is to support adult smokers to access vapes to help them to quit smoking. As the chief medical officer says:
“If you smoke, vaping is safer; if you don’t smoke, don’t vape; and the marketing of vapes to children is utterly abhorrent.”––[Official Report, Tobacco and Vapes Public Bill Committee, 7 January 2025; c. 11, Q8.]
I concur with that entirely.
In support of those aims, the clauses do not apply to licensed medicines and there is a defence available when any free vaping or nicotine product is given out in accordance with arrangements made by a public health authority or a public authority. That means that smoking cessation services will be able to continue to support adult smokers to quit smoking, for example by providing free smoking cessation quit aids where appropriate. That includes our national swap to stop programme that continues to help smokers move from cigarettes to vapes.
I also stress that we will continue to work with the Medicines and Healthcare products Regulatory Agency to support applications from industry for vapes as a licensed medicine. As Dr Laura Squire, the MHRA chief healthcare quality and access officer, stated in the evidence session, there may be progress in this area. I hope that that assures hon. Members that we continue to take a balanced approach to vaping, both through the measures in the Bill and our wider work on tobacco control.
More generally, the clauses make it an offence to give away any tobacco, herbal smoking, vaping or nicotine product as well as cigarette papers if the purpose or effect is to promote any tobacco, herbal smoking, smoking-related, vaping or nicotine product to a member of the public of any age—for England and Wales, in clause 15, for Scotland, in clause 62, and for Northern Ireland, in clause 80. The maximum penalty for the offence will be imprisonment for up to two years, a fine, or both.
The clause also extends to coupons and vouchers and to selling a product at a substantial discount. These measures mean that disreputable actors cannot bypass the restriction by offering a free voucher for a product instead of a free product. The clause also covers products that promote any of the aforementioned products—for example, t-shirts with vape company branding to promote vapes cannot be freely given away. On discounts, we are only prohibiting substantial discounts, so we can make sure that businesses cannot heavily discount products to the point at which the price is no longer relevant. Businesses can still discount products if they choose to. Clause 62 also includes a power for Scottish Ministers to create additional defences.
It should never have been the case that addictive nicotine and vaping products could be legally handed out for free. This is one of the many avenues by which industry is addicting our children. It is for these reasons I commend the clauses to the Committee.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Prohibition of retail sales of tobacco products etc in England without a licence
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Schedule 1.
Clauses 17 and 18 stand part.
Schedule 2.
Clause 19 stand part.
Schedule 3.
Clauses 20 and 21 stand part.
Schedule 4.
Clause 22 stand part.
Clause 85 stand part.
Schedules 11 to 13.
Sarah Bool
My hon. Friend makes a valid point. We do not want the introduction of this legislation to lead to any overburdening. We do not want the smaller convenience stores that are trying to operate to be challenged and put out of business. We want this to be a very practical measure so I agree that would be something to look into. I wonder whether the Minister might offer any further thoughts on that.
Andrew Gwynne
I thank Members for their contributions.
Clauses 16 to 22, clause 85, and schedules 1 to 4 and 11 to 13 establish powers for Ministers in England, Wales and Northern Ireland to introduce a licensing scheme for the retail sale of tobacco, vaping products, nicotine products, cigarette papers and herbal smoking products. There is currently no requirement for a business to obtain a licence to sell these products, which is a major gap in enforcement. This gap is hard to defend since the sale of products such as alcohol does require a licence, while tobacco—the single biggest preventable cause of death, disability and ill health—does not. Vaping and nicotine products also carry, as we have heard, a significant risk of harm and addiction.
Introducing a licensing scheme will strengthen enforcement of the law, acting as a deterrent to rogue retailers who breach sales regulations, supporting legitimate businesses and ultimately supporting public health outcomes. Retail licensing is a highly popular intervention, as the shadow Minister helpfully pointed out, because the polling shows that 81% of retailers and 83% of the public are supportive of tobacco retail licensing, and it is one of the most popular tobacco interventions surveyed.
Clause 16 establishes that an individual in England is required to hold a personal licence in order to sell tobacco, vaping products or nicotine products, expose those products for sale, and possess products for sale. The clause also establishes that a person must have a premises licence for any premises in England used for the storage, exposure or supply of a relevant product to a retail customer.
The clause provides for a discretionary power for the Secretary of State to make exceptions by regulations to the requirements for a personal or premises licence. This will enable regulations to appropriately account for all possible types of retail. The Secretary of State in England must, by regulations, make provisions for how licences are to be granted and must conduct a consultation before regulations are introduced. The scheme will be commenced by regulations.
I hope that in part answers the question posed by the hon. Member for Farnham and Bordon, because we want to ensure that the licensing regime is fit for purpose not just for bricks and mortar businesses, but for online business.
Dr Caroline Johnson
Will the Minister address under which part of the legislation regulations will be made in Scotland?
Andrew Gwynne
I will come to Scotland in due course.
Schedule 1 establishes the framework for the regulations. It establishes that the licensing authority will be the local authority, and defines the relevant types of local authority that regulations could establish as the licensing authority. In answer to the shadow Minister’s question, given that there is likely to be local government reorganisation in the future, it will be, and will remain, the responsibility of the outgoing local authority that is the licensing authority to continue the licensing function up to the date that the new local authority comes in, out of a shadow form.
The usual practice in local government reorganisation is that a shadow local authority is in place for a year in advance. It sorts out restructuring and necessary background work, with local members who were elected to the shadow authority becoming the members of the new local authority on the commencement date. That was true of the Local Government Acts in 1972 and 1996, and it has been true of local government reorganisations since. I have no reason to believe it will not be true of the next set of local government reorganisations. For a period of time, the outgoing local authority will be the licensing authority because it is the local authority until the date that it moves to new arrangements. From day one of the new arrangements, the new authority will be the licensing authority.
Dr Johnson
Some areas have a unitary authority, some have a unitary authority and a mayor, and some have restricted county councils. As local reorganisation occurs, how will the tier of local authority that has the competency and duties under this legislation be defined?
Andrew Gwynne
Where we know an area is moving from a two-tier to a unitary authority, the clue is in the name: the unitary authority will be the licensing authority because there will be only one local authority covering that area.
Gregory Stafford
I am sure the Minister has much greater understanding of his own Government’s policy, but my understanding is that there will be some devolution of powers to parish and town councils. Will they potentially become the licensing authority when there is a downward devolution of power?
Andrew Gwynne
No. The local authority, not the parish council, would be and will remain the licensing authority, as is the case at the present time. Notwithstanding that there may be a quasi-additional tier in the form of a mayor and a combined authority, where areas move from a two-tier to a unitary authority, it will be the local authority that is the licensing authority. That is what happens in my constituency in Greater Manchester, where we have effectively had unitary authorities since the metropolitan county council was abolished in 1986. Tameside metropolitan borough council and Manchester city council are both unitary authorities. They are both the licensing authorities for their respective parts of my constituency, even though we have a Greater Manchester combined authority and a Great Manchester metro mayor. I hope that clarifies the issue.
Schedule 1 also establishes that regulations may make provisions regarding the granting, duration, renewal and revocation of licences, and enables the licensing authority to charge a fee for the granting of a licence. In response to the point raised by the hon. Member for Windsor, the fee structure may be set at a level that takes into account administration and enforcement costs. The local authority will be able to use the fee to help cover the cost of granting licences and enforcing the scheme. That is the closest I can get: we intend it to be cost-neutral for the purpose of operating the scheme.
Schedule 1 establishes that regulations can place conditions on the licence. Retailers that breach those conditions will be subject to civil financial penalties. Regulations may make provision for licensing authorities to publish information about licences, such as the addresses of licensed retailers, and, to maintain fairness, regulations must include an appeals route, so that retailers can, for example, appeal decisions on the granting of a licence. Finally, regulations may require that a licensing authority must consider guidance published by the Secretary of State to support the smooth implementation of the scheme.
Clause 19 and schedule 3 establish the same power to introduce a licensing scheme in Wales, with the same framework for the regulations. The schedule establishes the licensing authority in Wales to be the council of the county or county borough. Clause 85 achieves the same in Northern Ireland by inserting a new clause into the Tobacco Retailers Act (Northern Ireland) 2014, while schedule 11 establishes the same framework. In Northern Ireland, a council will be the licensing authority.
Clause 17 creates offences in relation to the licensing scheme in England. It makes it an offence to sell, expose for sale, or possess for the purpose of sale any relevant products without, or not in accordance with, a personal licence. The clause also makes it an offence to use a premises in England for the storage of relevant product for the purpose of retail sale, the exposure for sale, or the supply of any relevant product to a retail customer without, or not in accordance with, a premises licence, and knowingly to provide materially false or misleading information in a licence application.
Anyone found to be committing a licensing offence may be issued with an unlimited fine on conviction. As an alternative to prosecution, trading standards may issue a £2,500 fixed penalty notice, which is an on-the-spot fine. Regulations can confer on courts a discretionary power to suspend or revoke a licence on conviction. The court may order relevant product to be forfeited and destroyed, to prevent a business from continuing to sell or unlawfully selling product.
Clause 20 establishes the same licensing offences in Wales, and clause 85 establishes the same licensing offences in Northern Ireland. In Northern Ireland, district councils will enforce the licensing scheme. People convicted of a licensing offence face a fine of up to £5,000. As an alternative to prosecution, councils in Northern Ireland can issue a fixed penalty notice, the value for which will be determined in regulations.
Clause 18 creates civil financial penalties for breaches of licence conditions in England, to ensure that licensed retailers continue to follow the rules. Breaching conditions is a civil matter, not dealt with by the courts. The value of the civil financial penalty cannot exceed £2,500. The clause also provides a limited and specific power to update that value to account for inflation, to ensure that the value remains relevant. A civil penalty cannot be issued if the breach of the licence condition already constitutes a licensing offence. That is to ensure that someone cannot be subject to double punishment for the same licence breach.
Dr Johnson
The power to increase the fine is in line with inflation, but if evidence over time showed the Minister that the fine was not adequate to deter the offence from taking place, the Government might wish to raise it by more than inflation, to provide a greater deterrent. Would it be wise to make the power more flexible?
Andrew Gwynne
As I have said during previous outings in the course of this Committee, the Bill merely rolls over the existing fines. We would need to do a much more complex piece of work to uprate the fines beyond the current values, plus inflation. That is not what the Bill seeks to do; we do not want to overcomplicate it.
Tobacco and Vapes Bill (Eighth sitting)
Andrew Gwynne ExcerptsThursday 16th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 January 2025 - (16 Jan 2025)
Sarah Bool
I think that is what they would do. If they did not step in at that point, any financing or any bank that had a mortgage over the property would certainly be looking to do that—to try to clear out the property and make sure that it is free to be used thereafter. It may seem like a technicality, but I can foresee this point as one that will be wrangled over for many years to come.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship, Mr Dowd.
This group of clauses relates to restricted premises orders. These are existing measures that local authority trading standards in England and Wales can use when dealing with a retailer that persistently breaches the age of sale and vending machine restrictions for tobacco products, herbal smoking products, cigarette papers, vapes and nicotine products. The clauses are based on and replace existing legislation.
A restricted premises order is an important enforcement mechanism for tackling persistent offenders. A persistent offender is someone who has committed an under-age sale of cigarette papers, tobacco, herbal smoking, vaping or nicotine products or has committed the offence of selling from a vending machine, at least twice within the previous two years. The person who brought the proceedings for the sales offence makes a complaint to a magistrates court to apply for a restricted premises order in respect of the premises where the offence was committed.
Clause 24 requires notice to be given to people who might have an interest in a restricted premises order being made in England and Wales, and sets out situations where an interested person might challenge a restricted premises order. An interested person is the occupier of the premises or someone who has an interest in it, such as the manager or owner. The clause sets out the circumstances in which notice should be given to an interested person where a restricted premises order is being applied for. Interested persons are allowed to make representations to the court to try to prevent a restricted premises order from being issued, or at least to try to vary it. This is a safeguard so that suitable steps are taken before a restricted premises order is made, and to maintain fairness so that a relevant person is informed of an impending restricted premises order.
Clause 25 provides those in receipt of a restricted premises order in England and Wales with the ability to appeal to a Crown court. This is important to the function of enforcement in the Bill as it enables businesses to appeal against a restricted premises order, such as where they feel they have a case that the order has been inappropriately or unfairly issued. This provision maintains the fairness of the enforcement regime in the Bill.
Clause 26 makes it an offence to breach a restricted premises order in England and Wales. The offence is committed when a tobacco, herbal smoking product, cigarette paper, vaping or nicotine product whose sale is prohibited under a restricted premises order is sold on the premises. The offence occurs if a person knew or ought reasonably to have known that the sale was in breach of the order. It also provides a defence for the person charged, where they prove that they took all reasonable steps to avoid a committing the offence. Making it an offence to breach a restricted premises order gives local authority trading standards the ability to escalate action to tackle persistent offenders. The severe penalty of an unlimited fine can act as a deterrent.
Finally, Clause 27 provides Welsh Ministers with the power to add to the offences for which restricted premises orders can be issued, in addition to what is already prescribed in the Bill. Offences added must be in relation to tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products only. This re-enacts an existing power for Welsh Ministers, who must consult before making regulations under this power. The clause is therefore important as it maintains existing powers that enable legislation in Wales to be kept up to date to ensure that restricted premises orders can continue to be used as an effective enforcement tool.
The Chair
I remind the Committee that if you want to talk about the clauses, this is the point at which you should do so.
Andrew Gwynne
In that case, clauses 28 to 30 relate to restricted sale orders, which are another tool in the arsenal of trading standards that can be used against those who repeatedly commit an offence. Like the clauses related to restricted premises orders, they are based on and replace existing legislation.
Clause 28 provides that a persistent offender in England and Wales can be issued with a restricted sale order. A persistent offender is someone who has committed an under-age sale of cigarette papers, tobacco or herbal smoking, vaping or nicotine products or has committed the offence of selling them from a vending machine at least twice in the previous two years. A restricted sale order is similar to a restricted premises order, but it puts a ban on an individual, rather than a premises, selling relevant products. It also prohibits the individual from having management functions related to the sale of relevant products and from keeping machines on any premises that sell relevant products. This is one of several measures in the Bill that will ensure that our enforcement approach to tackling under-age sales is both effective and proportionate. The clause is important for the overall functioning of the Bill, as it provides local authority trading standards with a further tool of enforcement. Restricted sale orders also act as a deterrent to persistent offenders, as they apply to a specific person regardless of where they are employed or whether they change employment.
Clause 29 provides those in receipt of a restricted sale order in England and Wales with the ability to appeal to a Crown court. The clause is important to the functioning of the enforcement regime in the Bill, as it enables individuals to appeal against a restricted sale order, such as where they feel that they have a case that the order has been inappropriately or unfairly issued. That maintains the fairness of the enforcement regime in the Bill.
Clause 30 makes it an offence to breach a restricted sale order issued in England and Wales. The offence is committed when the individual has done something, such as sell a product, that they have been prohibited from doing under the restricted sale order. It provides a defence where a person took all reasonable steps to avoid committing the offence. The clause is based on and replaces existing legislation. As with restricted premises orders, making it an offence to breach restricted sale orders gives local authority trading standards the ability to escalate action to tackle persistent offenders. The severe penalty of an unlimited fine can act as a deterrent.
I commend clauses 28, 29 and 30 to the Committee.
Dr Johnson
As the Minister has already described these clauses, I will not repeat that information, but I encourage him to answer my questions on the previous clauses, as they apply similarly to this group. The others were related to restricted premises; these clauses relate to restricted sales applying to people, but the questions are the same.
If one appeals to the Crown court, how much will it cost? The Minister did not answer the question about the phraseology of “on the premises” and how that would relate to the collection of items bought online. In the debate on the previous clauses—the same question applies to these ones—he did not answer why the offences in clauses 4 to 6 and 13 to 15 are not considered relevant. Will he also clarify that a different relevant offence can occur on each of the three occasions within the two years?
With regard to restricted sale orders, paragraphs (c) and (d) of clause 28(2) relate to machines used for the purpose of selling cigarettes and other banned products. It is illegal under previous clauses to sell items from a machine, so why would one need a restricted sale order to ban something that is already illegal?
The Chair
I will call the Minister. He may well wish to respond on the points related to clauses 28, 29 and 30 rather than the other points that have been raised, which can be taken up at another place and another time.
Andrew Gwynne
I will follow your guidance, Mr Dowd, because we will debate some of these issues further.
First, I apologise to the shadow Minister on the subject of the questions that she asked, particularly about the fines. The fine for a breach is level 5. That is the maximum and an unlimited fine. When it comes to the breach of a restricted premises order and the other offences we have been discussing, these are all serious offences that take place after someone has committed multiple previous offences and when several enforcement steps have already been taken along the way. It is therefore really important that trading standards has the option—and it is that, an option—to escalate enforcement measures to issue a potentially very high fine. The fine needs to reflect the severity of the offence and the fact that the offender is persistently breaching the regulations.
That follows on to the matter of record keeping raised by my hon. Friend the Member for Cardiff West. We will continue to work with trading standards during the long lead-in time that we anticipate we will have once this Bill hopefully gets Royal Assent. I am sure that trading standards already has good record-keeping that will help it to ascertain persistent offenders for rogue sales but, if it does not, we will work with it to make sure that it does and that it can properly enforce the measures in the Bill.
On the point about the current use of restricted sale orders, the data from the tobacco control survey shows that between April 2013 and March 2020, one council applied to the courts for a restricted sale order that was not approved. There have been no tobacco control survey reports since 2020, so more recent data is not available, but this information is gathered by the Chartered Trading Standards Institute, so that answers that point.
I take the point made by the hon. Member for South Northamptonshire about restricted sale orders and vending machine offences and we are seeking to remove vending machines for tobacco and vape sales. Restricted sale orders specifically prevent the sale of tobacco, vape and nicotine products, and, when offences relating to the sale of these products have been persistently committed by an individual, we think that they are a proportionate enforcement tool that is specific to the nature of the offence committed. I take the hon. Lady’s point that we are seeking to remove vending machines, but we want to make sure that the clauses are as watertight as possible so any sales from vending machines that might happen would still be covered by the scope of the measures for enforcement.
Dr Johnson
I thank the Minister for answering some of my questions. Another question related to clause 29 and appeal to the Crown court. How much does he anticipate that the average cost to interested parties will be? If he does not know, perhaps he could write to us.
On clause 28, the relevant offences do not include offences in other clauses in part 1 of the Bill, including clauses 4, 5, 6, 13, 14 and 15. They are not included as relevant offences in clause 28, or indeed clause 23. Given that the Minister wants a robust and watertight approach, why is that not the case? The other question related to online collection.
Andrew Gwynne
The hon. Lady has asked a number of technical questions. We will get back to her and the Committee about the interrelationships between different clauses.
On the question that she asks about applications to the Crown court and the fines system in the Crown court, it is of course the Crown court that deals with appeals against penalties issued in respect of criminal offences dealt with in the magistrates courts. These are matters for the courts.
I know she asked about costs, and we believe that it would not be proportionate to prevent a business that has breached tobacco and vape sale restrictions from being able to conduct other types of businesses. For serious cases, where criminal behaviour occurs on a premises, local authorities can apply for a closure order under section 80 of the 2014 Act. Closure orders fully close a business for a maximum of three months and can be extended for a further three months on application to a court. I am not sure that covers her point, but we will get back to the hon. Lady on that.
Dr Johnson
I had another question on restricted sale orders. Why has the Minister chosen to include particular clauses and not others? I believe he will write to the Committee on that question.
Dr Johnson
I asked about online sale and collection versus sale on premises. Finally, if an individual person is a repeat offender under clause 28 because they have sold tobacco three times, that would be fairly clear. If they have sold tobacco on one occasion, vapes on another and cigarette papers on another, does that still count as three relevant offences?
Andrew Gwynne
It is obvious that three separate offences have occurred, so if the hon. Lady is asking whether they count as three offences under the Bill, of course they would. They are each their own separate offence under the Bill. That is absolutely the case. We cannot be any clearer that these are three separate offences; they are in different parts of the Bill, but none the less they are offences under the Bill. I hope that clarifies that point.
In terms of online sales, what we want to ensure is that the measures in the Bill are proportionate. These clearly relate to premises rather than a virtual space. I will certainly write to the Committee to make sure that online is covered in the provisions. Throughout the measures we have discussed to date, we have discussed trying to bring the same regulation to bricks and mortars and to online, so that there is no loophole for the industry to move away from a physical space to online, to try to get around restrictions. How that relates to a particular restricted sale order is technical in detail, so I will write to the Committee at the earliest opportunity to clarify the point.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clauses 29 to 31ordered to stand part of the Bill.
Clause 32
Enforcement by local weights and measures authorities
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 33 and 34 stand part.
Clause 81 stand part.
Andrew Gwynne
The clause places the duty to enforce the tobacco and vaping measures in part 1 of the Bill and any display regulations in England and Wales on local weights and measures authorities. It provides local weights and measures authorities—meaning local authority trading standards in England and Wales—with the power to use the investigatory powers under the Consumer Rights Act 2015 to conduct their enforcement activity.
Those investigatory powers are comprehensive and include the power to purchase products, observe a business, enter premises with or without a warrant, inspect products, test equipment, require the production of documents, seize goods, seize documents as evidence, break open containers and require assistance from persons on the premises. Trading standards officers are experts in enforcement, and it is vital that we provide them with the appropriate powers to perform their duty. The clause ensures that local authority trading standards can use the same investigatory powers that are used now, and known to be effective, to enable successful enforcement of the new legislation.
Clause 33 provides a requirement for local weights and measures authorities in England, meaning local authority trading standards, to consider a programme of enforcement action and the potential design of such a programme of enforcement for offences under part 1 of the Bill and display regulations, on a yearly basis. The clause is important to the Bill as it reconfirms what local authority trading standards should consider appropriate action to enforce tobacco, vapes and nicotine product regulations in their local area.
Gregory Stafford (Farnham and Bordon) (Con)
The Minister is outlining clause 33. Under subsection (2), it is clear what the programme of enforcement action might involve, but what is not clear is what the consideration means in this case. In the local authority, is that decision made by a certain department, by the cabinet or, if a combined authority, by the mayor? What is due consideration under the Bill?
Andrew Gwynne
The hon. Gentleman has answered his own question, because that very much depends on the constitutional make-up of the local authority. The governance of that local authority will determine the way in which that is considered. As licensing functions tend to be quasi-judicial in their nature, enforcement required to ensure that those licensing conditions are met means that, in effect, elected members across the authority have some role in and responsibility for giving consideration to those points. I hope that clarifies the matter for him.
Gregory Stafford
It does in the most general sense, but I am trying to get to the specifics of this, if the Minister does not mind. The clause is very clear. It says in subsection (1) of clause 33,
“Each local weights and measures authority in England must, at least once a year, consider”
and so on. Presumably, the Department has some idea of what that consideration would look like, and it is presumably the Department’s job to enforce that the local authority has made some consideration. It must have some benchmark as to what that consideration would be, otherwise how on earth will it enforce that part of the Act once passed?
Andrew Gwynne
Look, the clause merely reaffirms the current case, which is that local trading standards and weights and measures authorities must consider certain things. The hon. Gentleman is right that on the enforcement regime for tobacco and vaping products, the Bill extends the consideration that local members should give. It is very clear, with the set of measures we are dealing with in this Bill, what those considerations should be and what local councillors and the executive or the mayor should consider on behalf of the local authority. Every local authority trading standards has a programme of enforcement that is approved by that local authority; this Bill will request of them that that is extended, within the scope of the measures in the Bill—hopefully to be an Act—to include what we expect for the enforcement of tobacco and vape regulations.
The Bill will also ensure that they continue to review the action they take on a regular basis. It is really important to ensure that the enforcement regime in any particular local authority area is as robust as it can be and that, where there are deficiencies, the local authority and the members constituting it have the opportunity to put things right. Clause 34 makes the same provision for programmes of enforcement action in Wales as is made for England under clause 33, and clause 81 makes similar provision for district councils in Northern Ireland. I therefore commend these clauses to the Committee.
Dr Johnson
I thank the Minister for outlining what these clauses do. I will not repeat his summary, but I will ask him one question: could he confirm what provisions are made for Scotland, please?
Andrew Gwynne
Scottish Ministers have advised that they do not wish us to legislate on this. It is my understanding that that is why these measures relate solely to England, Wales and Northern Ireland.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clauses 33 and 34 ordered to stand part of the Bill.
Clause 35
Power of ministers to take over enforcement functions
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
The shadow Minister makes an important case for these measures covering England and Wales. There are no known cases of Ministers needing to take over the enforcement of tobacco and vape regulations in England and Wales. Trading standards operates in all local areas and undertakes enforcement responsibilities, and it will continue to do so. We acknowledge as a Government that it is highly unlikely that these powers will ever need to be used, but it is important to have them to ensure that there is consistency in enforcement, if there is ever an occasion where a local authority is unable to conduct enforcement activity. We believe these powers act as a useful safeguard for very extreme circumstances.
If this power were exercised—as the shadow Minister has rightly put to us, although we do not expect it ever to have to be—how would it work in practice? It is a fair point. Ministers would decide how enforcement functions would be taken over, as well as the suitable organisations or individuals who would be involved in undertaking the enforcement action for a particular case, or cases of a particular description. That is woolly for the simple reason that we do not know what those circumstances would be. Were there circumstances severe enough to warrant Ministers utilising this power, we would want to ensure—
Dr Johnson
Ministers intervening in a particular case is obviously quite a sensitive issue, particularly where that is the prosecution of a single individual or the duty to enforce regarding a single shop. I can understand that there may be a conflict of interest, and the Secretary of State may be asked to choose a different authority to arbitrate to avoid that conflict, but how will the Minister ensure that these measures are not used for political purposes?
Andrew Gwynne
All I can say to the shadow Minister is that we do not intend to use these powers. They would hopefully never see the light of day. However, we have to legislate for—we are keen to legislate for—those exceptional circumstances that will probably never happen. Where there is a real failure on the part of a local trading standards to deliver its core functions, as set out in the Bill, Ministers must reserve the right to intervene.
Dr Johnson
With respect, if the clause said that the Secretary of State reserves the right to take over proceedings or the duty to enforce for more multiple cases in the same area, or take over the whole job of the local authority, that would perhaps make some sense, if the local authority was underperforming in its duties. However, these clauses state that it is for a specific case, not the wider failure to deliver.
Andrew Gwynne
I get that—it is difficult without having a specific example, because there has not ever been one, but we have to assume that at some stage in the future there may be a case, however unlikely that is. We have to ensure that the Secretary of State has the absolute confidence that the trading standards functions of a particular area are able to meet the ambitions of the Bill. If, for whatever highly unlikely reason, there is a conflict of interest or those functions have not been delivered in an appropriate way, Ministers need to have that opportunity to intervene. That is what this power, as unlikely as it may be, seeks to do; it is a backstop in the extreme, unlikely circumstance that local trading standards is not operating in accordance with the measures of the Bill.
Dr Johnson
Has the Minister discussed it with his Scottish and Northern Irish counterparts, and can he say whether they have a similar provision? If they do not have it, why do they feel that they do not need it?
Andrew Gwynne
Scotland does not have the powers in the Bill, and nor does Northern Ireland. We have discussed all of this in terms of where we are legislating for different parts of the United Kingdom. I would like to reassure the shadow Minister, though, that Scotland does have a similar, separate power from this. It is not true that Scotland does not have this power; it does have it, but does not want it to be part of the framework in the Bill.
This is a measure that we believe is a safeguard. It is unlikely that we will ever seek to use it, but we have to have those safeguards, because were there to be a local authority that is not able to perform the requests that the Bill sets out, and were the Secretary of State or Ministers at some stage in the future of the view that the trading standards functions were not meeting the requirements of the Bill, there has to be some measure to allow Ministers to step in and try to fix that situation so that the measures in the Bill, and the robust enforcement that we expect from those, are applied consistently across the whole country.
Dr Johnson
The Minister says that it is similar in Scotland—I would be grateful if he could confirm whether that is related to individual cases or to a wider takeover of a failing Department. The Minister has talked a lot about the proportionality of the offences, fines, and punishments that can be chosen by trading standards, and he says that he trusts trading standards to ensure that that is proportional to the offence on each occasion. The concern is that the clauses would allow the Secretary of State to interfere with that by taking over the proceedings or the decision to enforce in a particular case, which would mean, for example, that if a Secretary of State was concerned that his best friend was running a shop and was about to get into trouble, he could intervene on the basis of this legislation and prevent that person from having proceedings. Likewise, if an Opposition politician was in the same situation, he could intervene to make proceedings much harder and harsher than they would normally have been.
Dr Johnson
I cannot give way, because I am intervening on the Minister. Does the Minister understand that concern?
Andrew Gwynne
I understand what the hon. Lady is trying to get at, but I started by saying, in answering her, that there have been no known cases of Ministers needing to take over the enforcement of tobacco and vapes regulations in England and Wales. These are an important safeguard in a probably never event—[Interruption.] She asks why we are doing it: we are doing it precisely so there is a safeguard and, in an extremely rare occasion that we might need to intervene, we are able to. It is not a power that we are seeking to use, nor do we want to use it, but it is an important safeguard. With that, I commend the clauses to the Committee.
Question put, That the clause stand part of the Bill.
Andrew Gwynne
I am grateful to the shadow Minister for bringing this discussion before the Committee today. Amendment 54 would provide that someone who commits the offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in England and Wales, or the offence of purchasing these products on behalf of someone under age—proxy purchasing—cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.
Amendment 55 would achieve a similar effect in Scotland. This amendment would ensure that someone who commits an offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in Scotland, or commits a proxy purchasing offence or the offence of failing to operate an age verification policy, cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.
The shadow Minister’s intention may be to establish greater leniency for first-time offenders by removing fixed penalty notices as an enforcement option. Or it may be that she just wishes for first-time offenders to potentially face criminal prosecution and higher fines. Nevertheless, we do not want to weaken the existing penalty regime or reduce enforcement options available to trading standards by creating exceptions for first-time offenders or anyone else who has committed these offences. We also do not want to risk causing confusion for trading standards officers, when it comes to utilising these fines, by creating different rules for first-time offenders.
The purpose of the fixed penalty notices is to enable trading standards to take enforcement actions against rogue offenders more quickly and easily. These on-the-spot fines avoid the need to take offenders through a time-consuming magistrates court process, and reduce the pressure on courts. When enforcing tobacco and vape legislation, trading standards takes a proportionate approach, choosing the appropriate action to take to achieve compliance. That typically starts, as we have discussed, with the issuing of warning letters, which is often effective in achieving compliance without the need to escalate to harsher penalties, such as prosecution and associated criminal fines, which are subsequently issued by a court on conviction. We do not want to remove the ability of trading standards to issue fixed penalty notices, including for first-time offenders, where that is viewed as a proportionate penalty for the particular case before them. It is for those reasons that, once more, I ask the shadow Minister to withdraw the amendments.
I now move on to clause 37, which amendment 54 seeks to amend. The clause introduces new fixed penalty notices in England and Wales to enable local authority trading standards to take quicker action by issuing on-the-spot fines to retailers in breach of regulations, instead of seeking a court prosecution. The fine will be £200—double the amount proposed in the same Bill when introduced by the previous Government. We will go further by enabling the use of the fixed penalty notice for a wider range of offences.
Trading standards officers will be able to issue a £200 fixed penalty notice for under-age sales, proxy purchases and free distribution of tobacco, vaping and nicotine product offences, as well as breaches of tobacco age of sale notice restrictions and breaches of display of products and price regulations made under this Bill. The value of the fixed penalty notice is reduced by 50% to £100 if paid within 14 days by the individual in question. This amount is proportionate and brings the value of the fixed penalty in England and Wales into closer alignment with the current similar values in Scotland and Northern Ireland and the £200 fixed monetary penalties for breaches of the single-use vapes ban. It was also the most popular value given by respondents to the Government’s public consultation.
A higher fixed penalty amount, set at level 4 on the standard scale—currently £2,500—will be available for licensing offences under clauses 17 and 20, in England and Wales, once respective licensing schemes are established through regulations. This higher value reflects the seriousness of these offences and will help the taking of action against rogue retailers.
Fixed penalty notices offer an individual the opportunity to avoid prosecution for an offence if they make a payment within a specified period. Existing fixed penalty notices already in place for proxy purchases of tobacco and vape products will be replaced by this new regime. A strong and proportionate approach to enforcement is vital to support the implementation of new tobacco and vape measures and put us on track to a smoke-free United Kingdom. Fixed penalty notices will complement our existing sanctions and strengthen the toolkit available to trading standards officers by allowing them to take swifter action to fine rogue retailers that breach certain regulations, including age of sale regulations. I therefore commend clause 37 to the Committee.
Dr Johnson
The Minister has reassured me that the trading standards officer fining someone breaching the regulations and the provisions of the Bill that are relevant has the capacity to issue warning letters to someone who they believe has committed such an offence inadvertently—someone who would otherwise wish to adhere to the law, but has made a simple mistake—and there is a range of other options, such as an FPN or prosecution itself, for the more reckless or persistent offender, so I will not press my amendments to a vote.
On clause 37 itself, can the Minister answer this question. People can repeatedly be issued with FPNs; if someone were issued with an FPN rather than being prosecuted, would that be recorded as a “relevant offence” under clause 23 or 28—on restricted premises orders and restricted sale orders—or could someone be recurrently getting an FPN and not be treated as a recurrent offender?
Andrew Gwynne
My apologies to the shadow Minister. The simple answer is no; paying a fixed penalty notice is an alternative to criminal prosecution. A person cannot be convicted of the offence if they pay the fixed penalty notice within the specified time.
Dr Johnson
I thank the Minister for that information. Does he therefore envisage situations in which an individual receives an FPN recurrently but is not treated as a recurrent offender?
Andrew Gwynne
That would be a matter for trading standards to judge, but one would expect that if somebody is a recurrent offender in that regard, trading standards may want to use the vast array of enforcement powers, including, ultimately, being taken through the court process, should that be appropriate. But that is entirely a matter for trading standards.
Dr Johnson
I think that could lead to a situation where the first offence is committed and trading standards gives the individual a warning letter because they believe the individual did not intend to commit it, the second offence is committed and an FPN is issued, the individual commits a third offence and gets another FPN, and so on. By the time we get to the fourth offence, the trading standards officers may get fed up with that individual and want to treat them as a recurrent offender but be unable to do so because they have technically never committed a relevant offence. Trading standards would then have to prosecute them for the next three offences over two years before they could treat them as a recurrent offender, which would delay the prosecution under the restricted premises or restricted persons order of an individual deliberately and recklessly selling age-restricted products to under-age people. Can the Minister consider whether someone receiving recurrent FPNs would be considered for the restricted sale order, perhaps at a higher threshold than prosecution?
Andrew Gwynne
The shadow Minister makes a valid point. I remind her, though, that there is an array of tools for trading standards to use. A fixed penalty notice is one; we have discussed and debated other measures to date. There is an entire toolbox of enforcement measures. I am not quite the Stalinist some might think; I trust trading standards to take the appropriate action given the circumstances. The Bill, hopefully soon to be an Act, will provide trading standards with an array of different measures, so that if they decide that someone is a persistent offender, they can go down a variety of different routes.
Dr Johnson
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 ordered to stand part of the Bill.
Clause 38
Fixed penalties: use of proceeds
Gregory Stafford
I do not want to repeat too many points that other people have made. This a well-meaning, but ill thought-through amendment, as has been highlighted by the two hon. Members who spoke before me.
I was a local government councillor for 17 years, and served on many health and wellbeing boards. I do not recall them ever having a separate fund, so this would be a new innovation. It would not necessarily be an innovation without good intention, but using central Government legislation to enforce a completely new set of financial arrangements on local authorities could have a wider impact than those who have tabled these amendments have anticipated. The Minister, either in his summary or on Report, might find a way of achieving what those hon. Members want via other means, because clearly we would all want the moneys from continued enforcement to be used for things as close to health and public health improvements as possible. Will the Minister address that in his response?
Andrew Gwynne
I will first discuss the clause and then move on to the amendments. Clause 38 sets out how proceeds from the new fixed penalty notices in England and Wales must be used. I will also discuss the amendments that the hon. Member for Eastleigh has tabled on behalf of the Liberal Democrats.
The clause states that funds received from fixed penalty notices issues in relation to the licensing offences in the Bill must be returned to the relevant Consolidated Fund once the costs of investigating the offences and issuing the notice have been deducted. That will ensure that these fixed penalty notices remain cost-neutral and will not cause local authorities to incur additional cost burdens for enforcing a future licensing scheme. For all other offences, which carry a fixed penalty notice of £200, proceeds will be retained by local authorities and must be used in connection with their functions under this Bill, part 1 of the Health Act 2006, part 3 of the Public Health (Wales) Act 2017 and the Tobacco and Related Product Regulations 2016. That means that if local authority trading standards issue a fixed penalty notice—for example, to a retailer selling to someone under age—the local authority may retain the funds from the fixed penalty notice, and those funds must be used by the local authority to support the enforcement of tobacco and vape legislation. That will allow local authorities to cover the enforcement costs for issuing fixed penalty notices and to reinvest any remaining funds into their enforcement regimes.
The amendments to the clause proposed by the hon. Member for Eastleigh seek to ringfence the proceeds from the £2,500 fixed penalty notice for licensing offences for public health projects. They would achieve that by making it mandatory for any proceeds received by local authority trading standards from these fixed penalty notices to be allocated by local health and wellbeing boards to public health projects. Although I admire the hon. Lady’s ambition to further support public health—and who would not?—it would not be appropriate to enable local authorities to retain the fixed penalty notice proceeds in that way.
Councils already have a ringfenced budget for public health in England. The proceeds from the £2,500 fixed penalty notices for licensing offences were never intended as a revenue-generation mechanism. The fixed penalty notice is introduced to support the enforcement of the future licensing scheme and tobacco and vape sales regulations. It should continue to be the choice of trading standards officers to determine the appropriate enforcement action to take in a given case to achieve compliance. Enabling retention of fixed penalty notice proceeds for a different purpose risks distorting the operational priorities of the licensing scheme.
The £200 fixed penalty notice introduced by the Bill for offences such as under age sales are an exception. We worked carefully with His Majesty’s Treasury during the development of the Bill to enable trading standards to retain that relatively small value in order to support their procedures. To ensure that the future licensing scheme can be sustainably implemented, we have established that local authorities will be able to use the licensing fee to support them in covering the costs of administering and enforcing the licensing scheme, and that trading standards can deduct the costs of investigation and issuing fines from the FPN proceeds before returning the remainder to the Consolidated Fund.
My hon. Friend the Member for Cardiff West also mentioned the fact that the provision is not compliant with the reality of seeking to apply to both England and Wales, in that it makes specific reference to bodies that do not exist in Wales, namely the health and wellbeing boards, which only appertain to local authorities in England. I want to be clear that local authorities are receiving not just their public health grant but, in the financial year 2025-26, an additional £70 million from central Government and the Department of Health and Social Care to support local authority-led stop smoking services in England. We expect that investment will support our aim to help around 360,000 people to make quit attempts, and up to 198,000 successful quits a year.
Decisions for future years are subject to the spending review process, but that money, as the shadow Minister rightly pointed out, in part comes from the Consolidated Fund. So there is a virtuous circle of the kind that the hon. Member for Eastleigh rightly wants to see, in that there are direct correlations between money that my Department gets from His Majesty’s Treasury and money that the Treasury will get from not just those fixed penalty notices in the future, but other sources of income generation, including fines and penalties.
That money, in one form or another, almost certainly will be recycled into public health measures determined by Ministers and by Parliament and given to local authorities to determine how to spend at their local level. That could be through the public health grants, or through direct grants such as the smoking cessation or the drugs and alcohol grants that we make available to local authorities. But rest assured, there will be investment in public health, and that will come from money that my Department receives from His Majesty’s Treasury through the usual routes. With that, I ask the hon. Member for Eastleigh to withdraw her amendment.
Liz Jarvis
I will not be withdrawing the amendment.
Amendment 2 negatived.
Clause 38 ordered to stand part of the Bill.
Clause 39
Power to change amount of fixed penalties
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
The hon. Lady makes a reasonable point. Wales is the only devolved Government to have a provision on handing over products to people who are underage. That is why the clause is framed in the way that it is, given the fine balance of reaching consensus across the devolved Administrations and England. Wales is the only devolved Government to have this provision.
Dr Johnson
I may have misheard the Minister, but I am not sure he explain why he does not think it is necessary in England.
Andrew Gwynne
We do not think that this power is necessary, nor did the Northern Ireland Executive or Scotland. Wales wishes to retain a power that it already has, and I think that is fair enough.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 41 ordered to stand part of the Bill.
Schedules 6 and 7 agreed to.
Clause 42
Application of programmes of enforcement to old age of sale offences
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
Clause 45 enables the Secretary of State by regulation to extend the provisions of part 1 to cover devices or parts of devices that allow tobacco products to be consumed. Clause 67 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to give the equivalent powers to Scottish Ministers. Clause 86 amends the Health and Personal Social Services (Northern Ireland) Order 1978 to give the equivalent power to Northern Ireland.
These provisions mean that any newly emerging device or current device, such as heated tobacco devices, could be covered in future. This future-proofs the Bill, will allow us to stay on top of tobacco control and will protect the public from the harms of tobacco. Before making any regulations under the clause, the relevant Ministers or Department will have a duty to consult. For amendments to part 1 of the Bill, the Secretary of State must obtain the consent of Welsh Ministers if those regulations would be within the legislative competence of the Act of the Senedd. I therefore commend these clauses to the Committee.
Dr Johnson
I believe this is the clause the Minister previously mentioned in relation to bongs. It is his desire to ensure that items used for illegal drugs, which are currently legal only on the basis that they are used for tobacco, will not need to be used once tobacco is not as available. I have a question relating to the age of sale, because tobacco has a rolling age of sale. Is he suggesting that, to put these provisions in place and make these items illegal—such as the bongs that he has referred to so forcefully in the past—the smoke free generation will need to reach the point where there are no members of the smoking generation left?
Andrew Gwynne
I am not sure whether anybody is listening in to the proceedings of this Committee—I am sure lots of people are; the hon. Member for Windsor said thousands—but I certainly think that somebody connected with the tobacco and vape shop on Strutton Ground is listening, because the said offending bong, which has been there for the six months that I have been Minister, seems to have disappeared from the shop window. That shows the power of the parliamentary processes—it is not just sad geeks who are listening in to the proceedings of this Bill—[Interruption.] Indeed, it might have been sold—I did start to wonder whether I had inadvertently been advertising said bong.
The supply of controlled drugs and any articles for administering and preparing controlled drugs is regulated under the Misuse of Drugs Act 1971. However, as I have flagged, some items that might be captured by this legislation are also being displayed and sold. That is how they are getting around the Act—under the premise that they are used for smoking tobacco—and that includes things such as pipes and bongs.
Dr Johnson
My understanding was that the Minister did not wish to restrict the use of tobacco products and other products covered by this Bill by those who are over the age of sale, whether that be the smoke-free generation date or the age of 18. Does he accept that if he brings in regulations under clause 45, it will potentially affect those who are currently buying tobacco legally? How will he ensure a balance between protecting our population from drugs, particularly illegal drugs, and maintaining the availability of tobacco for those to whom the Government have decided it should be available?
Andrew Gwynne
I quite accept the shadow Minister’s point. We are not making the purchase or consumption of tobacco or tobacco products illegal. What we are doing is ensuring that the next generation can never legally be sold tobacco or tobacco products. I do not wish to stray over old arguments, but as I said when the Committee debated clause 1 at length, Parliament is effectively saying to the tobacco industry, “This is it. This is as good as your market share is ever likely to be. We’re going to stop that conveyor belt, so new people don’t come along to replace those who are dropping off the other end as a consequence of your product. We will move hell for leather to shrink what little market base you now have still further through things like the stop smoking programme,” which we discussed under the previous clause.
I hope that the hon. Lady accepts that although we will absolutely allow people who currently smoke to continue smoking or using tobacco products until the day they die if they so wish—we will do all we can to wean them off that addiction, but if they want to, they will be able to—we will be preventing the next generation from ever getting hooked. That is the context for all these clauses.
The power that we are discussing in relation to clause 45 will only mean that the other parts of the Bill can be extended to include these products. That is an important factor. We are not banning these products; we are just covering them in measures such as the display powers that we are discussing. That is important. It will mean that if a bong is put in a shop window like the one on Strutton Ground, action can be taken not on the basis that it is drugs paraphernalia—heaven forbid, because that would be a breach under the Misuse of Drugs Act 1971—but because the said bong can be used to smoke tobacco. It will give us the powers, should we so wish, to include a variety of other products in the scope of the Bill so that they cannot be displayed. If they are not displayed, the chances are that the said shops will not be selling them.
Mr Barros-Curtis
I agree that clause 45 is really important, for reasons that have been discussed by Members on both sides of the Committee. As has been said throughout, the tobacco industry will find a way if we do not make these measures as watertight as possible. In respect of subsection (3), which relates to the devolved elements, can the Minister reassure me that in his conversations with the Welsh Ministers they have shared his zeal to ensure that these measures are as robust and future-proof as possible?
Andrew Gwynne
Absolutely. The working relationship between me and my officials in the Department of Health and Social Care and my ministerial counterparts across the three devolved Administrations and their officials in their respective Health Departments has been textbook. It has been exemplary. Not that I would do so with the Welsh Health Minister, but I could have my ten penn’orth of argument with some of the other devolved Administrations on a whole range of policy areas, yet when it comes to tackling the scourge of tobacco and vapes, the four Health Ministers are as one. That is why this is a landmark Bill.
The SNP Administration in Holyrood, the Northern Ireland Executive, who cover a rainbow of political parties in Northern Ireland, and the Labour Welsh Government in Cardiff Bay have given me the responsibility and power to act on their behalf. That is the Union in action. That is co-operation in action. That shows that devolution need not be a mechanism to pull us apart; where we are at one, it can be a mechanism to draw us together. I reassure my hon. Friend that the powers in the Bill have been shaped by the Welsh Health Minister, to every last full stop, and have the full support of the Government of Wales.
Question put and agreed to.
Clause 45 accordingly ordered to stand part of the Bill.
Clause 46
Power to amend lists of identity documents
Question proposed, That the clause stand part of the Bill.
Dr Johnson
One point to add is that individuals with certain disabilities may not have a driving licence, because their disability makes them ineligible to drive. The options available to them are quite substantially restricted, because most of the options on the list are forms of driving licence. Has the Minister assessed whether those with disabilities are more or less likely to have the documents listed, and is he happy that those with disabilities who wish to buy age-restricted products can do so?
Andrew Gwynne
We have already discussed at length the Government’s intentions to have a robust but workable system that does not overburden retailers, but enables them to have the confidence that the people to whom they are selling their products meet the required age of sale. I have already discussed and set out the reasons for the list of ID cards.
Of course, most of the forms of ID are things that most people have, or they are able to get a PASS ID card. Those are commonplace for people who are currently under the age of sale for a variety of products, and that is one form of ID that they can purchase if they do not have any other forms of ID. There is also the defence for retailers that they took all reasonable steps, which might involve their looking at a form of ID other than those set out in the legislation, such as veteran cards, which we have already spoken about at length. That remains the case.
I want to give a bit of background on how the list came about. My understanding is that in the previous incarnation of the Bill there was not a list of forms of ID. That came in for criticism by the then Bill Committee, which thought that there ought to be a list. That is how we have ended up with the list that we have now.
Dr Johnson
Is the Minister suggesting that if a shop worker or retailer selling an age-restricted product to an individual saw a form of ID that is not listed in part 3 but which they were convinced was a real and genuine certification of age, they could use that instead?
Andrew Gwynne
That is the reasonable defence that we have already discussed under earlier provisions of the Bill.
Dr Johnson
So why is a list necessary? Why not just say “as long as they have taken reasonable steps to get the ID”?
Andrew Gwynne
If the hon. Lady lets me finish my contribution, she might get an answer that she likes. I have already had discussions with my officials about how we have less ambiguity in relation to the ID. The list was put in for the reasons that I stated. The previous iteration of the Bill did not have a list and was criticised by members of the then Bill Committee because it was too vague. We will perhaps come back at a later stage with an amended proposal.
I hope the hon. Lady recognises that her point has been made very well and that my officials and I are in full listening mode. We hope to reassure members of this Committee, probably on Report, that we can strengthen this element of the Bill—we do not want to weaken it—so that there is no ambiguity over ID. We will have a robust mechanism for retailers so that they have confidence in what is and is not an acceptable form of ID. We will get this right. I am determined that we will get these measures right and that they will be enforceable.
On the ability to add or remove from the list, should that be necessary, it will be future-proofed. However we define the requirements on identification, whether it is as it currently stands or as it changes, the way we do ID will change. In my relatively short lifetime—I am only 50—technology has moved on apace and forms of identification have changed. Who knows how things might change over the next 50 years? We have future-proofed much in the Bill against the tobacco and vaping industry being able to find another route through to sell its goods to the next generation. We are putting roadblocks in place for all those mechanisms. We also need to make sure that the enforcement mechanisms are fit for purpose for the future.
I hope I can reassure the hon. Member for Farnham and Bordon that the intention is not to make it easier to escape the ID requirements or make it harder for people to prove that they are of legal age. Perhaps, at some stage, certain ID mechanisms will become obsolete and we will need to remove them, but this is about adding new ID to the list so that as new forms of identification become available that we have not even thought of, the Bill will be future-proof. We are not restricting ID to passports and drivers’ licences that we might not even have in 50 years’ time. I hope the hon. Member accepts that explanation, and I hope that Members understand that we are in listening mode. We are looking at what constitutes applicable ID, so that clarity will be there for the retail industry on what applies and what does not.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)
Tobacco and Vapes Bill (Sixth sitting)
Andrew Gwynne ExcerptsTuesday 14th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 January 2025 - (14 Jan 2025)
Sarah Bool (South Northamptonshire) (Con)
I want to follow up on the points made on clause 5(3) and clause 6(3) in particular. Both specify that
“The notice must be displayed in a prominent position”.
I agree with many of the points my hon. Friend the Member for Windsor made about what that means in practice. In the information pack that we have been given, there is a quote from the Scottish Grocers’ Federation, which I want to read for the record. It explicitly states:
“In most convenience stores, space is at a premium and the suggested wording set out in UK Government proposals will require a significant surface area in order to be legible and accessible to all customers. The complexity of a moving ban will require very clear public messaging. Appropriate and mandatory signage is essential for good practice and the sale of age restricted items, SGF is concerned that multiple messages throughout the store relating to various product ranges and items could potentially create confusion and lead to challenging interactions between customers and staff.”
To protect our retailers, we must ensure that we enforce these regulations correctly. When making the regulations, the Secretary of State should take into account the voice of the retailers.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship, Sir Mark. In responding to points that have been made, I want first to reiterate that these two clauses do not relate to enforcement; they concern the nature of the signage that will be required to be displayed. We can come to those other matters later in the Bill’s proceedings. I remind Opposition Members of what has been said in previous debates: we will use the very long lead-in time to engage fully with the retail sector to ensure that we get the delivery in shops right and to ensure that the Bill’s provisions can be implemented without any hiccups.
I also reiterate that we abhor any violence and abuse towards retail staff—or anybody else—and it is the intention of this Labour Government to introduce a new offence in this respect. Given the comments that have rightly been made in the course of this and earlier debates, I hope that it will command full support from all parts of the House.
The hon. Member for Windsor asked what is meant by “negative resolution procedure”. It is the procedure for the statutory instrument that will be have to be made to introduce these regulations. The fact that it is “negative” means purely that it will not require a parliamentary debate. It will be done through the usual secondary legislation processes.
There were questions about the nature of the clauses relating to different parts of the United Kingdom, and why we are approaching this with slightly different methods. I must say politely—particularly to the shadow Minister—that we have to respect the devolution settlement. These matters are entirely within the legislative competence of the devolved Administrations. Some things remain reserved for the UK Government, but for a lot of the measures in the Bill, the legislative competence rests with the devolved Administrations and their Parliaments.
Dr Johnson
I have at no point suggested that I do not respect the devolution that is in place. I made two remarks that reference devolution. One was about the different penalties that apply for the same offence in different parts of the United Kingdom. While I recognise that Ministers in other parts of the country have the competence to change the penalties to make them different from those that apply in England, it is clearly the Minister here who decides what the draft legislation should say with regards to the penalty in England. My questions focused on why he has chosen to make it different in England from other parts of the United Kingdom. Clearly, if the Northern Irish had chosen a higher penalty, it is up to him if he wishes to join them, or to have a lower penalty.
The other issue I have raised regarding devolution was in relation to clause 5. The Bill as drafted says that tobacco cannot be sold to people born on or after 1 January 2009, and much effort has gone into ensuring that that is replicated in Scottish legislation all the way through, even though the Scottish Parliament could do that itself if it wanted to. It makes sense to do it in one go here because that is more efficient in terms of both time and financial expenditure for civil servants across the country. So my question was why the Minister has chosen not to include in the Bill the change to the notice in clause 5, saying that tobacco cannot be sold to people under 18. Why not change that now?
Dr Johnson
I am merely suggesting that changing the notice in clause 5 to
“born on or after 1 January 2009”
instead of “under 18” now would be more efficient, and help our Scottish colleagues, rather than implying they are not capable of doing so.
Andrew Gwynne
Sir Mark, the hon. Lady protests too much here, because while it is true that she was questioning why, for example, the English fines could not be the rate of the Northern Irish fines, she was also pretty much calling for us to legislate for Scotland and Wales to bring consistency across the whole United Kingdom. Likewise with clause 5, she asks why we in this place are not legislating for Scotland in respect of the notices that will be displayed in Scotland. It is not our job to legislate where the Scottish Government do not want us to do so.
Andrew Gwynne
No, I will answer the hon. Lady. My officials and I have been in contact throughout the production of this Bill with officials and Ministers in the devolved Administrations. I have had umpteen meetings personally with my counterparts in Scotland, Wales, and Northern Ireland, and there is an open offer. They are genuinely excited, Sir Mark, that we are able—as far as possible—to legislate with their consent to make smoke-free UK a reality, and we have sought to design this Bill in co-production with the devolved Administrations. None the less, there are some things that the devolved Administrations do not wish this Parliament to legislate on. For example, in respect of clause 5, on the notices, the Scottish Government have made it very clear that this is something they wish to do in their own way, in their own time, notwithstanding the fact that they have given us assurances that the measures will be in place to give enough time for retailers north of the border in Scotland to implement them. It is not for me to overrule the will of Scottish Ministers, who have the legislative competence to do this, if they do not wish this Parliament to do it on their behalf.
I hope that that answers future similar questions about the differences in different parts of the United Kingdom. We are legislating with the permission and consent of the three devolved Administration Governments, and we are not going to overstep. I have already said to my ministerial colleagues in other parts of the United Kingdom that if, during the course of the Bill through this House and the other place, they think, “That is not quite right and we need it to be amended,” or, “You know, it does make sense for Westminster to do it all in one go and do it for us,” we will respect that.
I have given Ministers my promise that if, as an afterthought, they want us to do some of this for them on their behalf during the Bill’s progress through its stages in both Houses, we will facilitate that. However, I am not going to overstep the powers given to me by the Scottish, Welsh and Northern Irish Ministers to legislate on their behalf and to ensure that we have a United Kingdom-wide Bill that meets the separate and different needs, ambitions and expectations of our devolved settlement.
Dr Johnson
I am grateful to the Minister for making clear that the reason that the text contained within the age of sale notice is not being amended at this stage is because Scottish Ministers have told him they would prefer to amend it themselves at a later date.
Andrew Gwynne
I am grateful for that, and if any offence was caused by my earlier comments, I apologise to the hon. Lady. We need to set out clearly that we are doing something quite ingenious, and that is only because of the goodwill and the desire of Ministers from different political backgrounds in Scotland, Wales and Northern Ireland to get this legislation through the United Kingdom Parliament with the ability for them to then differ on consultations and other matters once the legislation is on the statute book. That would have been unheard of in years gone by, when relationships were not necessarily as good as they currently are between the devolved Administrations and the Westminster Government.
The same argument applies to clause 6. The sign will be a matter for Welsh Ministers. Although the framework of the sign is set down in the Bill for Wales, because that was how they wished us to approach it, any changes would be a matter for Welsh Ministers. The hon. Lady asked the hypothetical question whether, if we changed the notices again, there would be adequate consultation or time for retailers. We are not planning on making life difficult for retailers. We think that the wording here is the right wording. I do not take it to be legalistic and technical in the way that the hon. Member for Windsor seems to think it is. It is the same wording that applies now, with the exception that rather than talking about people “under the age of 18”, it will say
“anyone born on or before 1 January 2009”.
I think that is pretty clear.
The wording on the signage was tested during the public consultation in January, and more than 70% of respondents supported it. Many respondents noted that we need to mirror the existing wording to ensure accessibility. Other products are more niche and were not deemed to be necessary on the sign, but I think most people understand what a tobacco product is, and a cigar is certainly a tobacco product. I commend the clauses to the Committee.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6 ordered to stand part of the Bill.
Clause 7
Ban on manufacture of snus etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 8 stand part.
Amendment 60, in clause 9, page 5, line 10, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 62.
Amendment 61, in clause 9, page 5, line 12, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 62.
Amendment 62, in clause 9, page 5, line 12, at end insert—
“(3A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a caution.”
This amendment, together with Amendments 60 and 61, prevents penalties for a first offence under section 9 being a fine beyond level 3 and provides for a discretionary caution.
Clause 9 stand part.
Clauses 56 and 57 stand part.
Amendment 70, in clause 58, page 29, line 19, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 72.
Amendment 71, in clause 58, page 29, line 21, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 72.
Amendment 72, in clause 58, page 29, line 21, at end insert—
“(3A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 3 on the standard scale or a recorded police warning.”
This amendment, together with Amendments 70 and 71, prevents penalties for a first offence under Section 58 (pertaining to restrictions on the possession of snus with an intent to supply in Scotland) being beyond level 3 and provides for a discretionary recorded police warning.
Clause 58 stand part.
Clauses 73 and 74 stand part.
Amendment 77, in clause 75, page 39, line 19, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 79.
Amendment 78, in clause 75, page 39, line 21, at end insert
“, save if it is a first offence.”
See explanatory statement to Amendment 79.
Amendment 79, in clause 75, page 39, line 21, at end insert—
“(3A) A person who has admitted guilt of a first offence under this Article is liable to a to a fine not exceeding level 3 on the standard scale or conditional caution.”
This amendment, together with Amendments 77 and 78, prevents penalties for a first offence under Section 75 (pertaining to restrictions on the possession with an intent to supply of snus in Northern Ireland) being beyond level 3 and provides for a conditional caution.
Clause 75 stand part.
Andrew Gwynne
I am grateful for the opportunity to open this debate. Amendments 60 to 62, 70 to 72 and 77 to 79 would create a more lenient penalty regime for the offence of possessing the relevant oral tobacco product, for example snus, with intent to supply it to another person in the course of business in England, Wales, Scotland and Northern Ireland, by creating an exception to the maximum penalty that a person can face for committing that offence if it is their first offence.
The amendments would establish that someone who admits to committing an offence for the first time would be liable on summary conviction or indictment to a fine not exceeding level 3 on the standard scale, which is £1,000, or provide instead for a discretionary caution in England and Wales, a recorded police warning in Scotland or a conditional caution in Northern Ireland. That is lower than the current maximum penalties, which are, on summary conviction, imprisonment for up to six months in England, Wales and Northern Ireland and 12 months in Scotland, a fine, or both; or, on conviction on indictment, imprisonment for up to two years, a fine, or both.
The amendments would remove the distinction between summary conviction and conviction on indictment for first-time offenders, meaning that the severity of the offence committed would not be taken into account in those cases as it would under current provisions. In creating a first-time offence, the amendments would have a similar effect to amendments that we have already discussed, so, if the Committee is content, I will not repeat myself, as my rationale for asking the shadow Minister to withdraw her amendment remains the same.
Dr Johnson
This group of clauses and amendments all apply to snus, which we are trying to ban, so the first question is: what is snus? Snus is a tobacco product predominantly used in Sweden and, to an extent, in the USA. When the Health and Social Care Committee, which I was a member of in the last Parliament, visited Sweden at around the time the previous Tobacco and Vapes Bill was introduced, we saw shops with massive displays of different types, brands and flavours of snus, which came in small round pots similar to those that we see nicotine pouches in; they were mostly kept in the refrigerator.
Snus is produced using tobacco leaves, salt and alkalis such as sodium bicarbonate or sodium carbonate. The alkali is there to help the nicotine to be absorbed more easily into the mouth and therefore into the bloodstream of the person using the product. Producers also potentially add a flavouring. As we have seen in cigarette papers, flavourings are used to improve the palatability of tobacco products. The mixture of tobacco leaf, salt, alkalis and flavouring is ground up, steam-pasteurised to inhibit the growth of bacteria, and then supplied loose or in small pouches.
The loose form is a moist, powdery product, which I understand is rolled between one’s fingers to create a sort of cylinder shape known as a pinch. It is placed under the upper lip, where it is held for about 30 minutes while the nicotine is absorbed into the bloodstream. Its moist nature helps to facilitate the absorption of nicotine and makes the nicotine hit faster; it is absorbed more quickly than it would otherwise be.
The second way that snus can be supplied is in a small pouch resembling a very little teabag, which comes in two formats: original and white. The original version is a sachet of material that is kept moist and is brown in colour. Again, the moistness allows a quick release, but the tobacco product does not need rolling and pinching; it just needs putting into one’s mouth, and it stays in its little pouch. The white version is not in all cases white, but the genre is known as white snus. It has a milder taste and a slower release because the powder in the pouch is dry. The dryness means that one needs to get it moist in the mouth before it will dissolve across the membrane and give the nicotine hit, which means that the dry snus is a slower-release product than the original. The American snus is a lower moisture product, again provided in a variety of flavours to suit the customer.
Why did I and others not know what snus was? I am sure you are familiar with it, Sir Mark. This specific form of tobacco product has been banned in the UK for some time. It was banned by the Tobacco for Oral Use (Safety) Regulations 1992—I was still at school—and then EU tobacco products directive 2014/40 created a European-wide ban, which was incorporated into UK law by the Tobacco and Related Products Regulations 2016. The Committee might be interested to know that Sweden has a derogation specifically for snus under that EU regulation, so snus is still sold there, as I described.
Advocates of snus believe it is less harmful and causes less respiratory disease and less cancer than does an inhaled form of tobacco. They try to market it as an alternative to smoking that is less harmful. However, the evidence shows a risk of cancer, particularly of the cheek and gums. Perhaps that is not surprising, given where it is placed to be used. Oral squamous cell carcinoma, a form of cancer of the mouth, often occurs in the site at which snus is commonly placed. It has also been shown that snus causes increased blood pressure, particularly in females, and despite not being inhaled it can contribute to an increased rate of asthma.
Aside from all that, snus contains nicotine, which we know is addictive. Regardless of the form in which it is taken, it creates the addiction and cravings that rob people of the choice not to use the product, which the Minister spoke about so powerfully last week. It is important that we consider this carefully, because otherwise people will become addicted to snus as another form of nicotine.
Dr Johnson
My understanding—I am sure the Minister will leap to his feet to correct me if I am wrong—is that the Bill does not apply to nicotine pouches per se, because nicotine pouches do not contain tobacco. As I understand it, the brands we see in our local supermarket in similar round pots contain nicotine, and they are put in the mouth and absorbed in a similar way, but they are not tobacco products. As I read the Bill, clause 7 will not apply to them, and obviously they are not currently illegal, because they are widely sold.
Andrew Gwynne
I can easily clarify that point. The clause applies to relevant oral tobacco products, which are defined as tobacco products intended for oral use, not intended to be inhaled or chewed, and that consist wholly or partially of tobacco. It does not apply to tobacco-free nicotine pouches, which are sometimes informally referred to as snus; the Bill classes nicotine pouches as nicotine products.
Dr Johnson
I thank the Minister for clarifying that so comprehensively.
Clause 8 deals with the sale of snus. Clause 7 having made it an offence to manufacture snus, clause 8 bans the sale of snus, which it defines, in the same way as described by the Minister, as a “relevant oral tobacco product”. In wording that is slightly different from that in other clauses, clause 8 also describes the offence as not only to sell, but to
“offer or expose…for sale”.
I had to look up what that meant. To help the Committee, apparently, to offer or expose something for sale means to expose it to attract an offer of purchase from the public. Something is put in the shop window—in the same way as the bongs the Minister described in a shop window the other day—to be visible to a customer and the customer may then choose to make an offer for the purchase of the product, and the product is thereby exposed for sale. In essence, this provision will make putting these products in a shop window an offence.
I am interested to understand why the wording in clause 8 is different from that for all the other tobacco and nicotine products in the Bill, where that wording is not used. If the Minister could explain that, I will be grateful. Again, the defence offered by clause 8 is “all reasonable steps”, but I am not sure what such steps would be, so I will be grateful for clarification on that, too, please.
The penalties for disobeying clause 8 are quite severe. The penalty on summary conviction is
“imprisonment for a term not exceeding the general limit”
in a magistrates court, which is six months, potentially rising to 12 months based on what the Lord Chancellor has said over the past few months, or a fine—of how much, the Bill does not state, so perhaps the Minister could help with that—or both. On conviction on indictment, the penalty is
“imprisonment for a term not exceeding 2 years, or a fine, or both.”
That means that we have a contradiction within the Bill. For virtually any other tobacco or nicotine products that may not be sold, but are sold by an offender, the offender is liable for a fine at level 3, 4 or 5, but clause 8—the sale of snus, as distinct from all other tobacco products—creates an offence that carries a penalty of significant imprisonment. I am not saying that that should not be the case, but I am interested to understand the rationale for the difference, because, notwithstanding any devolution differences, the decision on what to do in England and Wales is clearly for this Government and this Minister.
Clause 9 concerns possession with intent to supply in the course of business of a “relevant oral tobacco product”, as has been defined in clauses 7 and 8. I am interested in what is meant by “the course of business”. If one looks at section 4 of the Misuse of Drugs Act 1971, where possession with intent to supply is most readily thought of, it is the intent to supply it to another person. However, does “the course of business” imply that money must change hands? If one had the intent to supply to another without being paid, would that not be in “the course of business” and therefore be legal? Also, does the word “business” itself imply a properly regulated business? It could not be a properly regulated business in so far as it would be an illegal sale. Does the Minister therefore make a distinction between the product being sold from a business premises as opposed to being bought down the pub from an acquaintance?
Amendments 60, 61 and 62 to clause 9 basically look once again at the principle of proportionality. If, for example, we were to prosecute someone for the sale of cigarettes to a 19-year-old born on 1 January 2009, and it was that person’s first offence, we would give them a fine—so why would we wish to consider imprisoning somebody at the first offence for selling snus? The crime would appear to be somewhat similar but the penalty is very different. I do not intend to push the amendments to a vote, although other hon. Members may wish to, but they are designed to provoke debate on the proportionality of different offences, and the inconsistency between the penalties for different offences that may appear to be very similar. Amendments 60 and 61 insert the phrase
“save if it is a first offence”
and amendment 62 says:
“A person who has admitted guilt of a first offence…is liable to a fine not exceeding level 3 on the standard scale or a caution.”
I will be interested in the Minister’s comments.
Andrew Gwynne
I am grateful to the shadow Minister for her comments. Although I appreciate her intention to establish greater leniency for first-time offenders, these amendments are not appropriate. Tobacco and vape offences must be taken seriously. We do not want to weaken the penalty regime for these offences, including offences relating to snus, by creating exceptions for first-time offenders or anyone who has committed these offences. We do not want to remove the ability of the court to issue a higher-level penalty, where that is viewed as proportionate for a particular case, for anyone convicted of these offences.
I turn to the shadow Minister’s comments on clauses 7 to 9, 56 to 58 and 73 to 75. Those clauses make it an offence to manufacture, sell or offer for sale, or possess with the intent to supply, a relevant oral tobacco product, such as snus, in England, Wales, Scotland and Northern Ireland. A relevant oral tobacco product is something intended for oral use—the clue is in the name: it is not intended to be inhaled or chewed and it consists wholly or partly of tobacco in powder or particulate form. That includes snus.
As the shadow Minister rightly pointed out, snus has been banned in the UK and the EU since 1992. Snus was banned as it was a novel tobacco product that is harmful to health. Snus contains harmful compounds that have been demonstrated to cause cancer, including cancers of the mouth. The manufacture of snus with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector is currently banned, as she rightly pointed out, under the Tobacco and Related Products Regulations 2016. These clauses re-enact that ban on manufacture but, unlike the 2016 regulations, do not limit it to supplying the UK or travel retail sector. In effect, that extends the ban to include manufacturing snus for export. That simplifies enforcement and reduces the possibility of such harmful products being available within the United Kingdom.
Andrew Gwynne
I will have to get back to the hon. Lady on that point. We will write to Committee members to update them, because I do not have that information to hand or in my mind.
As I was saying, the supply of snus for consumption in any part of the United Kingdom or through the travel retail sector is also already banned under the Tobacco and Related Products Regulations 2016, and these clauses recast the existing ban as a general ban on sale. The ban on possession of snus for intent to supply support the ban on sale, while preserving the current position under the Tobacco and Related Products Regulations 2016, which allows possession of snus for personal use.
Under these clauses, it will not be an offence to possess snus for personal use or for personal gifting to friends and family; this is not about criminalising individuals who possess snus for personal use. These clauses maintain and simplify the ban, in place since 1992, on the sale of a harmful tobacco product. The clauses also make the prohibition on snus more comprehensive and make the legislation clearer and more accessible. We have no intention of allowing a banned and harmful product into the United Kingdom market. I commend the clauses to the Committee.
The hon. Lady asks about “all reasonable steps”. As we have already discussed, it will be for the discretion of trading standards as to whether all reasonable steps have been taken. As we know, they take a proportionate approach to these matters, and we know that their current procedures work. There is no expectation that they will not work with the legislation before us.
What would prevent a retailer from just giving some of these products to a customer, rather than selling them, to get round the law? Well, there is “brand promotion”, which includes free giveaways anyway. That covers all tobacco products—so it covers that situation.
Dr Johnson
I thank the Minister for going through the questions thoroughly. I did not want to risk his getting to the end of his speech without answering the question of why snus is treated differently from other forms of tobacco. Is it merely a historical artefact?
Andrew Gwynne
The hon. Lady need not worry so much, because I have notes to clarify her points. Many people ask why we are banning snus but only gradually raising the age of sale for cigarettes, given that snus is less harmful than cigarettes. Consumption of any tobacco product is harmful. We heard that—[Interruption.]. We heard that very loudly and clearly from somebody upstairs, but also from the four chief medical officers. They made it very clear that there is no safe level of tobacco consumption and that tobacco is uniquely harmful as a product in whatever form it is consumed.
It is this Government’s policy to support people to quit all forms of tobacco. Snus has been banned in the UK and across the EU since 1992. It was banned because it was a harmful novel tobacco product at the time, and it still is. It was agreed to prevent this new harmful product from ever coming on to the market. Why on earth would we now decide to give the tobacco industry a get out of jail free card and allow a product that has never ever been allowed on the market in the United Kingdom to enter the marketplace, irrespective of the age of sale?
Dr Johnson
To be clear, I am not suggesting that it should be on the market, as the Minister well knows, because I support both helping people using tobacco to quit and preventing people from starting to use tobacco. I merely want to understand why there is a difference in treatment. On the basis of what the Minister has said, why not make the penalties for cigarette sales the same as the robust penalties that already exist for snus sales? It is his choice.
Andrew Gwynne
The hon. Lady teases me, Sir Mark, and I get her desire for scrutiny of the issue of fines and of the measures we will take to enforce these laws in England, where they stand at different rates to other parts of the United Kingdom. There are different rates for different products as well. If somebody wants consistency across the four nations and consistency of approach across all products, I get that—that is laudable—but we believe that the measures in the Bill are proportionate and workable. If they turn out not to be—if they turn out to be an incentive rather than a disincentive—Ministers can come back and can look at these things again.
On territorial extent, the earlier clauses refer to England and Wales and the later clauses to Scotland and Northern Ireland. As the shadow Minister pointed out to the hon. Member for Windsor, a full breakdown of the territorial extent of clauses can be found in the annexe of the explanatory notes to the Bill, which hopefully will then be able to clarify in his mind which bits are UK legislation, which bits are devolved legislation and which bits have territorial extent across England, England and Wales, Great Britain or the United Kingdom.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clauses 8 and 9 ordered to stand part of the Bill.
Clause 10
Sale of vaping or nicotine products to under 18s
Jack Rankin
I disagree with the Government on some of the clauses dealing with vaping, but I will come to those later, when it is more appropriate. I agree with what the Government are trying to do in clauses 10, 11 and 12 to toughen things up for under-18s. To that end, I encourage them to support new clause 10, tabled by the shadow Minister, which tries to make purchasing more difficult for under-18s online. We talked earlier about the principle of vending machines, which is addressed in clause 12 and by trying to ensure age verification when there is no one else present. It seems to me that new clause 10 is entirely in line with that, so I hope the Minister might consider supporting it.
Andrew Gwynne
It is good to see you back in the Chair, Sir Roger. Before addressing these amendments, the respective clauses and the proposed new clause, I want to make it clear that I will be using the generic term “vapes or vaping products” throughout to refer to vapes, e-cigarettes or nicotine vapour products. Likewise, I will use the term “nicotine products” to refer to consumer nicotine products, such as nicotine pouches. I am not referring to licensed nicotine-based medicines, which will not be further restricted by the Bill.
Under clause 10 it will continue to be an offence to sell a nicotine vape to a person who is under the age of 18 in England and Wales, and anyone who is found guilty of the offence will be liable to pay a fine of up to £2,500 if convicted. It is a defence if the person can prove they were shown what appeared to be an identity document belonging to the purchaser that showed they were over 18, or that they otherwise took all reasonable steps to avoid committing an offence. The clause also extends this age of sale restriction to consumer nicotine products and non-nicotine vapes, as we know that children are accessing those products. There are currently no age of sale restrictions on those products, and non-nicotine vapes can easily have nicotine solutions manually added to them.
Clause 59 refers to Scotland and extends existing offences in Scotland for selling vaping products to under-18s, proxy purchases on behalf of under-18s, and failure to operate an age verification policy related to vaping products, so nicotine products are also covered in those offences. By amending that legislation, we will align the approach across the United Kingdom, which is the wish of the devolved Administrations. The clause amends Scottish legislation by replacing the term “nicotine vapour products” with the term “vaping products”, thus aligning the definitions across the UK.
Another of the changes to Scottish legislation in this clause makes it an offence for any person managing or controlling a premises to have a prohibited vending machine available for use. This effectively maintains the existing prohibition in Scotland on vending machines selling vaping and tobacco products; indeed, it extends it to include machines from which nicotine products, herbal smoking products and cigarette papers can be purchased. Again, this aligns the approach across the UK.
Clause 76 applies similar measures in Northern Ireland to those in England and Wales, meaning that it will be an offence to sell a vaping or nicotine product to a person in Northern Ireland under the age of 18, thereby expanding current Northern Ireland legislation to cover all vaping products and nicotine products. Anyone convicted of the offence will be liable to a pay a fine of up to £5,000. All these measures for England, Scotland and Northern Ireland will come into force six months after the Bill receives Royal Assent, to give retailers time to introduce them.
These clauses will play an important role in ensuring that we can tackle youth vaping successfully. They provide businesses with certainty as to who they may legally sell products to, and they reinforce our health advice that children should never vape.
However, the amendments tabled by the shadow Minister would undermine that approach by creating a more lenient penalty regime for the offence of selling vaping or nicotine products to someone under age. They would establish that someone who admits to committing an offence for the first time would either be liable on summary conviction to a fine not exceeding level 3 on the standard scale—that is, a fine of £1,000—or be given a caution instead. Level 3 is one level lower than the level 4 fine of £2,500 that someone who commits this offence is liable to under the current legislation.
Dr Johnson
The Minister knows me well enough to understand that I would never seek more lenient penalties for those selling vapes to children; there is no excuse for selling vapes to children. However, I am concerned that there may be sales in the online marketplace that are not adequately covered by the regulations as they are currently drafted. The principle of new clause 10 was to ensure that such offences are properly covered, so I would be grateful for his reassurance in that regard.
Andrew Gwynne
I will come to that; I am just spelling out why I am concerned about the consequences of the shadow Minister’s proposals in the amendment, because they would lead to more lenient penalties for those committing an offence for the first time than they are liable to under the current legislation. Again, like the amendments that we have already discussed, the effect would be to create a first-time offence, and if the Committee is content, I will not repeat myself, as the rationale for my asking the shadow Minister to withdraw the amendment remains the same.
The shadow Minister’s new clause 10 would introduce an offence in England and Wales for businesses selling vaping products online without applying an age verification policy. It would therefore create a requirement for businesses selling vaping products online to take steps to establish and ensure that any customer attempting to purchase those products online was above the age of 18.
Although I am incredibly sympathetic to the shadow Minister’s intentions, as I said earlier, the Bill already makes it an offence in England and Wales to sell a vaping or nicotine product to anyone under the age of 18. As with in-person retail, online retailers must take all reasonable steps to avoid selling vaping products to anyone under age. Alongside the Bill, we are exploring how we can enhance online age verification to further tackle online under-age sales. The office for digital identities and attributes, which sits within the Department for Science, Innovation and Technology, is creating a framework of standards and governance, underpinned by legislation, which will enable the widespread use of trusted digital identity services. We are working closely with DSIT to consider how its work to enable the use of digital identities can best support retailers selling tobacco and vapes, whether online or in-person. It is for those reasons that I commend clauses 10, 59 and 76.
Gregory Stafford
I may have missed the Minister’s explanation, but why has he decided not to have the incremental increase for vapes when he has it for smoking? Does he feel that there is something fundamentally different about vapes, beyond the smoking cessation element, that could have been an exemption from the progressive age range that he has for tobacco?
Andrew Gwynne
The hon. Gentleman should panic not; I had not quite come to the end of my contribution. I was merely saying that it is for those reasons that I commend clause 10, clause 59 and clause 76 to the Committee.
Andrew Gwynne
If the hon. Lady will allow me to first answer her hon. Friend, it may well be that I answer her thoughts in the course of answering him. The hon. Gentleman is absolutely right that there is a difference here between our approach to tobacco and to vapes. The hon. Lady—the shadow Minister—has, rightly, always been, and will continue to be, a doughty campaigner for a nicotine-free generation and for a smoke-free generation. That may well be where we end up at some stage in the future. However, we believe that the measures in the Bill are entirely appropriate and proportionate. We are not planning to raise the age of sale for vapes in a similar way to that for tobacco; let me explain why.
Tobacco is a uniquely harmful product. No other consumer product kills two thirds of its users. It is therefore entirely appropriate to create a smoke-free generation, as we are seeking to do in this legislation, and to gradually phase out tobacco so that it is a thing of history. Although vaping is not harm-free—I will come on to the harms in due course—it is less harmful than smoking and, currently, we do not believe that a generational age of sale restriction on vapes would be an appropriate response to the current evidence in relation to health harms. Instead, the Bill contains strong measures to stop the promotion and the blatant advertising of vapes to children, and so bring about definitive and positive change to stop future generations from becoming hooked on nicotine.
It may well be, over the course of the coming years, that greater evidence emerges about the harms of nicotine. Lots of studies of vaping are taking place and it may well be that we have to take further action; that is why the measures in the Bill are permissive. The tobacco industry has often, after having one route closed off to it, sought an alternative route to maintain market share and market presence. It may well be that the vaping industry employs exactly the same tactics—all the evidence so far would suggest that it does. That is why the measures in the Bill are not just proportionate for the here and now but future-proof, so that Ministers can come back to Parliament, on a whole range of issues, and seek to close off other routes.
I would hope that, with that explanation, the hon. Member for Farnham and Bordon understands that there is a very big difference between tobacco and vaping. However, we reserve the right to return to Parliament and to utilise the powers in this Bill, should we be granted them, to ensure that, if there is evidence of harms, we can immediately respond to those.
Jack Rankin
I commend the Minister on making the evidence-based point about the difference between a smoke-free generation and a nicotine-free generation. Does he agree—I think he does, given the comments he has just made—that there are some somewhat sweeping powers here, which could be used to come back and ask for more legislation against vaping companies? Does he agree that that potential lack of certainty for legitimate vaping businesses might impede investment in this space, which is actually contributing to the benefit of a smoke-free generation?
Andrew Gwynne
There is nothing in the Bill that we are proposing to do that will restrict the legitimate sale of vapes. As a Government, we recognise that vapes have been used, and continue to be used, as a stop smoking tool. Our advice remains very clear: vapes are not harm free. We do not yet know the full extent of the harm, but as we heard from the chief medical officers from the four nations, it is unlikely that they are harm free. Indeed, there is limited evidence showing some harms, and there are lots of studies and research taking place to ascertain what the long-term impacts of vaping might be.
Our advice remains clear: if a person has never smoked, not smoking, and not vaping, is the best thing. If a person has smoked, vaping is safer than smoking, but it is not risk-free, and as a smoking cessation tool, it has proven to be successful for some. We do not want children to ever take up vaping—ever, and not in adulthood, either. Vaping is for people who have been smokers who want to give up; vapes are a safer product than tobacco.
Dr Johnson
I thank the Minister for clearly explaining that children should never vape. In fact, if children are smoking and wish to quit, they can get support from their GP and others, but they should not use vaping, because vaping is bad for children.
To take the Minister back to my question about new clause 10, before he took the two previous interventions, he said that he is working with DSIT to provide regulations and legislation that would cover new clause 10 and ensure that online sellers of age-restricted products are obliged to check a person’s age before selling them. Will he advise when he expects such regulations to be available? Will they be in time for his smoke-free generation in a couple of years’ time?
Andrew Gwynne
I absolutely hope that the measures will be worked on at pace and will be available for that. Officials from the Department of Health and Social Care are working closely with colleagues in DSIT to ensure that these matters are included in the online age verification legislation that it is seeking to introduce.
A couple of other points were raised in the course of the debate. On the issue of fines and why there are inconsistencies, I do not wish to over-labour the point, but the maximum fines that the shadow Minister quoted are consistent with existing tobacco and vapes legislation. We believe they are proportionate to the severity of the offences. There is a bit of a pushmi-pullyu argument here, because on the one hand we have had amendments that seek to have more lenient penalties, and on the other, arguments for harsher penalties. We believe that the current fine levels in England are appropriate, which is why we are remaining with them. It is for trading standards to take a proportionate approach to enforcement, deciding the appropriate action to take for a given case to achieve compliance based on the evidence before it.
On TikTok and advertising, I understand that the Advertising Standards Agency has issued an enforcement notice to vaping companies and brands instructing them to stop any advertising on TikTok. To date, it has reported around 300 posts, approximately 80% of which predated the notice to TikTok for removal.
On the issue of enforcement with physical sales, and online sales with age verification, it was interesting that in the evidence session we heard from National Trading Standards that it has undertaken test purchasing both in brick and mortar premises and online and that the failure rate in brick and mortar premises was 26%, compared with 10% online. We do not want any breaches of the law, but that puts into context that the current issues tend to be on the ground rather than online—although we need to cover all bases. I ask the shadow Minister to withdraw her amendments and proposed new clause.
Dr Johnson
I am grateful to the Minister for providing the extra information. Amendments 63, 64, 81 and 80 were designed once again to provoke debate on the coherency of the penalties across the different clauses of the Bill. Sometimes the penalties are different for the same offence and, inexplicably, sometimes they are the same for different offences that perhaps one would expect them to be different for. However, I will not press those amendments to a vote, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 ordered to stand part of the Bill.
Clause 11
PURCHASE OF VAPING OR NICOTINE PRODUCTS ON BEHALF OF UNDER 18S
Dr Johnson
Amendments 65 and 66 apply to clause 11. In line with other Opposition amendments tabled to various clauses of this Bill, they seek to provoke debate on the coherency of the penalties. They encourage the Minister to look in detail at those penalties before Report—specifically, to consider the differences between the shop worker, the shopkeeper and the shop owner in terms of the level of fine required, and also to consider the individual who inadvertently commits an offence on one occasion versus the person or company that deliberately and repeatedly flouts the law and require different handling.
Amendment 65 amends clause 11 to add at the end of page 6, line 5,
“, save if it is a first offence.”,
while amendment 66 inserts:
“A person who has admitted guilt”—
that is, a person who has owned up—
“of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale”.
I think I have explained what those are for.
Clause 11 makes it a criminal offence for a person aged 18 or over to purchase, or attempt to purchase, a vaping or nicotine product on behalf of someone who is under the age of 18—essentially stopping adults from buying vapes for kids. Clearly, buying things for children that are so potentially harmful to them is not the action of a responsible adult.
If a person is charged with this offence, they can defend themselves by saying that they had no reason to suspect that the person they were buying for was under 18. It is not really clear to me when that sort of a situation would occur. If someone is under 18, it should be fairly obvious that they are quite young. Any responsible adult who knew the child would have an idea of how old they were, and any responsible adult who did not know the child would surely guess that there was a risk in buying something for someone who looked young, in case they were under 18 and incriminated themselves. I understand why the defence is there, but I am not really sure how it would be used. The Minister may be able to enlighten us further.
A person found guilty in relation to this offence is liable to a fine up to level 4 on the standard scale, which amounts to £2,500. This clause is very important, because we must stop children getting access to vapes. Popular culture tells us that vapes are very accessible to children. For example, we were all glued to our screens—I know we were in the Johnson household—watching Luke Littler, the recent BBC young sports personality of the year, win the PDC world darts championship. It was fabulous to see someone so young achieve such an amazing feat.
Luke Littler won half a million pounds, which is a wonderful thing for that young gentleman, but he reportedly said that he would celebrate by vaping. Of course, he is actually a 17-year-old young man, despite his great achievements. He is a sports prodigy, a national hero, and a wonderful example to young people of what can be achieved at a young age, but presumably, until he turns 18 very soon, he will need someone else to buy vapes for him. That will be illegal under the new law.
On a more serious note, we know through the various different reports that on county lines, where people are selling drugs, they are often giving vapes to children as a way of enticing them into feeling that they are favoured by those adults. They are using children’s addiction to nicotine and desire for further vapes, and for access to further vapes, as part of a grooming process to get them into dreadful situations with county lines. Clause 11, which prevents children’s access to vaping and nicotine products via a proxy adult, is a very sensible measure that I will support.
Andrew Gwynne
I am grateful to the shadow Minister for her support. Clause 11 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in England and Wales. The clause replaces the existing restrictions, which only apply to nicotine vapes.
Similarly, for Northern Ireland, clause 77 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in Northern Ireland. The clause replaces the existing restrictions that only apply to nicotine vapes and extends them to non-nicotine vapes and nicotine products such as nicotine pouches. Anyone convicted of the offence would be liable to a fine of up to £5,000. Both of these clauses contain the defence for those charged that, if they can prove they had no reason to suspect the person they were buying the product for was under 18, that would be considered.
Dr Johnson
I thank the hon. Member for his intervention. I will come to amendment 96 and the mental health aspect shortly, but I will deal with the clause first, which makes sure that these vending machines are not available. At the moment, one can buy nicotine products in a vending machine where those exist. As I said, the ASH survey showed that 6.6% of 11 to 17-year-olds who currently vape have access to vapes through a vending machine, so this is happening in the UK already. The hon. Gentleman will have heard me say earlier that, until this Bill passes, it is not illegal to sell nicotine products to children. Some responsible retailers have a voluntary scheme for not selling to under-18s, but it is not a legal requirement. Some irresponsible sellers do sell vapes to children.
Paragraph 782 of the impact assessment says:
“There is limited evidence presented on the number and locations of vape vending machines, however it is suggested by online retailers that they are currently predominantly placed in locations such as nightclubs, bars and pubs. It is anticipated that”
without this legislation
“the market will develop further and vape vending machines will become more prevalent in other locations such as supermarkets, train/bus stations and other locations accessible to under-18s.”
In my mind’s eye, I remember recently seeing a vape in a vending machine alongside sweets; I just cannot quite remember where it was, but it was certainly somewhere that was easily accessible to people.
The aim of the clause is to protect children and to ensure that vending machines—commonly found dispensing food and drink in child-friendly establishments such as canteens and leisure centres, and easily used by young people—are not available. The machines protect anon—anonymity; I might have to put my teeth in, Sir Mark—
Jack Rankin
I thank my hon. Friend for her intervention and I agree with everything she has just said.
I will just finish my remarks to my hon. Friend the shadow Minister. She talked about this measure being a further opportunity; I would suggest that the easy availability of nicotine products in certain instances would be an aid on that journey.
We should be working pragmatically on amendments such as this in Committee, to ensure that the evidence is considered and that the right balance is struck. I will support the amendment tabled by my hon. Friend the Member for South Northamptonshire. Because the nicotine product vending machine measure is part of clause 12, I will vote against clause 12 stand part.
Andrew Gwynne
Clauses 12 and 78 prohibit vape and nicotine product vending machines in England, Wales and Northern Ireland, and similar provisions are made elsewhere for Scotland. However, it is really important that the Committee understands that Scotland already specifically prohibits vape vending machines.
Clause 12 makes it an offence for any person managing or controlling a premises to have a vaping or nicotine product vending machine available for use, which effectively prohibits the sale of vapes and nicotine products from vending machines. I will try to clarify this point for the shadow Minister. She asks, “Who is responsible? Who is that person?” The offence is linked to the person with management control of the premises, as that is the most appropriate mechanism; they have control over whether the vending machine is present. That is the answer to her question.
This Government will stop the next generation from becoming hooked on nicotine. To do that, it is essential that we stop children from accessing harmful and age-restricted products. Prior to the prohibition of tobacco vending machines, we know that children who smoked regularly used those machines as their source of cigarettes. We cannot allow the same thing to happen with vapes.
Vending machines do not require any human oversight, so it is much easier for determined individuals to bypass age-of-sale restrictions and, crucially, to undertake proxy purchases on behalf of individuals under 18 because there is a much lower chance of their being challenged about such a purchase. Additionally, by their very presence vending machines advertise their contents and the Bill will ban the advertising of vapes. We need to ensure that children are protected from harmful and addictive products. Ensuring that we remove the ability of children to access age-restricted products is an essential part of that approach.
I turn to amendment 96, regarding the exempting of mental health units from the vending machine prohibition. I am grateful to the hon. Member for South Northamptonshire for bringing this important issue before the Committee today for discussion. Her amendment would allow vape and nicotine product vending machines to be available for use in specialised mental health units in England and Wales.
I am very sympathetic to the needs of adult smokers and vapers in mental health facilities, and I know that this topic came up during the evidence session. However, we do not currently believe that there is a need to exempt mental health settings or other healthcare settings from these requirements. Scotland did not exempt mental health units from its vape vending machine ban, and it has had no issues. I want to be clear, because it is really important that I make this point: we are not banning the sale of vapes and nicotine products in mental health settings. We are only prohibiting their sale from automatic machines that provide no means to prevent proxy purchasing. Facilities that contain shops will still be able to sell vapes to patients and staff. Additionally, patients in mental health settings may be able to benefit from stop smoking services and the swap to stop scheme.
The majority of in-patient trusts, both acute and mental health, successfully deliver stop smoking support to smokers. As part of the swap to stop scheme, localities can request free vaping starter kits to provide to adults engaging with their local stop smoking services. Awards have now been made to individual services in a range of settings, including NHS and mental health settings, and to specific populations. It will still be legal and possible for vending machines to dispense medicinally licensed nicotine replacement therapies such as gums, patches and inhalers. These important medicines will still be available to patients who are looking to quit smoking or who are struggling with their nicotine addiction.
Dr Beccy Cooper (Worthing West) (Lab)
I thank my hon. Friend for making the arguments on vending machines. From a public health consultant point of view, I have listened and think there is a reasonable debate to be had. I am convinced by the arguments that my hon. Friend the Minister has given, but I would ask that following the debate the conversation continues as the Bill progresses and that the Department of Health and Social Care continues to have these conversations.
Andrew Gwynne
I am grateful to my hon. Friend for that. This debate will not stop here at Committee stage; I am almost certain it will be raised on Report. If it is not concluded to the satisfaction of those who wish to see such provisions in the Bill, I have no doubt that it will be raised in the other place, too.
However, it is really important that we do not end up with unintended consequences. We have to get this legislation right. The smoking cessation services available are far-reaching in these settings, and I see no reason for an exemption, given that nicotine replacement therapies such as gums, patches, inhalers—important medicines—will still be still be available to patients with a nicotine addiction in mental health settings. It is for that reason that I ask the hon. Member for South Northamptonshire to withdraw her amendment.
Sarah Bool
I would like to press my amendment to a Division.
Question put, That the amendment be made.
The Chair
Order. I do beg your pardon; I am wrong. I am never wrong! But this time I am. I call the Minister to speak first.
Andrew Gwynne
Thank you, Sir Roger. I was doubting my officials, but perhaps I should have had more trust in the notes that they gave me, which say “AG to open”—heaven forbid that you, in the Chair, would ever be wrong.
Clauses 13, 14 and 79 provide a power for the Secretary of State, Welsh Ministers, and the Department of Health, Social Services and Public Safety in Northern Ireland, to regulate the display of relevant products, including prices and empty retail packaging, within retail establishments in England, Wales and Northern Ireland. Tobacco product displays are currently regulated under the Tobacco Advertising and Promotion Act 2002. This Bill repeals and replaces that Act, so tobacco display regulations will be made under this new power for when the repeal takes effect.
Clause 61 provides Scottish Ministers with powers to regulate the display of herbal smoking products, vaping products and nicotine products, and their prices, in retailers in Scotland. The powers also allow regulation of the display of empty retail packaging or anything that represents the products. It is slightly different to the equivalent clauses for England, Wales and Northern Ireland, which also cover tobacco products. Tobacco products are not included in clause 61, because Scotland has made its own provision on tobacco displays under the Tobacco and Primary Medical Services (Scotland) Act 2010.
Evidence shows us that vapes and nicotine products are currently too easily accessible to children within shops. Vapes are sometimes displayed alongside sweets and confectionery in retail environments, and often promoted in shop-front windows. These products are too easily seen and too readily available for children. That is unacceptable. We must reduce the visibility and the accessibility of vaping and nicotine products to protect children from getting hooked on nicotine.
These clauses provide each of the devolved Governments with the power to regulate such displays and ensure that they are proportionate to the risks that these products pose to the audiences within retail establishments. They also ensure that the Secretary of State, Welsh Ministers, the Department of Health, Social Services and Public Safety in Northern Ireland, and Scottish Ministers, will be required to consult before making regulations. I commend the clauses to the Committee.
The Chair
Let me just explain: the clause stand part is Government business, so it is absolutely correct that the Minister is entitled to move it. He is allowed to move it formally if he chooses to do so. He does not have to speak to it, but by moving it formally, he can then open the debate and come back later if he so chooses. He has chosen to take the path he has gone down and he was absolutely right to do so.
Dr Johnson
I thank my hon. Friend for his intervention, which goes to the principle of advertising, and whether there needs to be an exemption for medical advertising of vaping as a stop smoking tool by health professionals, for example in doctors’ surgeries, where it may also be visible to child patients. That is not really the aim of clauses 13 and 14, which focus on the display of products in shops. They are less about how the products are advertised and more about where they are displayed and how visible they are to someone shopping.
To some extent, my hon. Friend has a point about how we convey the message to smokers that vaping devices are items they can use to help them quit smoking—a message given by the chief medical officer—and about the distinction between that advertising and the sort of advertising that sees sports stadiums and sports shirts emblazoned with the brands of vaping companies, such that young children watching their heroes on the pitch, playing football or rugby, see vaping as a good thing. We will come to that later, but it is distinctly different from clauses 13 and 14.
At the moment, the legislation most relevant to where products are displayed is probably the Tobacco and Related Products Regulations 2016, known as the TRPR, which brought EU tobacco products directive 2014/40 into law. The regulations, which are now in the form of retained EU law, set standards for nicotine vapes, including limits on nicotine strength, bottle and tank sizes, and rules on packaging and advertising. But when it comes to the display of vape products, there are no specific regulations. They are openly displayed in stores, in large and small shops, both household names and individual retail outlets. They are also displayed in outlets that we might not expect. I noticed that the place I took my son for a haircut was selling both haircuts and vapes, and that a shop in the local town that repairs mobile phones and sells second-hand devices also sells vapes. The number of places that sell vapes and display them in their shop window is remarkable.
The Department of Health and Social Care has expressed concern about the lack of regulation, warning that children can easily see and pick up vapes due to them being displayed within aisles close to sweets, and on accessible shelves and display towers on the shop floor close to children’s eye level. A particular concern to me—and no doubt to many others in the Committee—is the visual similarity between a vape display and a shelf of sweets. Vapes are often displayed in an array of eye-catching colours. It is not uncommon to see them in a rainbow, with a range of sweet and fruity flavours on offer, including specific sweet brand names like Skittles, Starburst and Sour Patch Kids. The way they are sometimes presented as a safe alternative to smoking—which we understand that they are for smokers—can mislead consumers into thinking they are risk free, which is concerning considering that they contain nicotine and other harmful chemicals. I have also noticed a fashion for an increasing number of products to be advertised as pure, fresh, natural and organic, potentially to give the impression that they are less damaging than they are.
Finally, I have not seen this raised before, but I would like the Minister to consider that the fact that these highly addictive products are so easily accessible on the shop floor and at children’s height makes it easy for children to pick them up and walk out with them, particularly if they want to avoid being asked for ID by the shopkeeper. Putting them behind the counter where they are less accessible to children may reduce that temptation.
Clauses 14, 61 and 79 relate to similar regulations in Wales, Northern Ireland and Scotland. I do not intend to go through them and repeat my arguments.
Andrew Gwynne
I reassure the shadow Minister that the measures in clauses 13 and 14 will regulate only the display of pricing, not the actual prices. We are not yet in the realms of fixing prices for products—I hope that reassures the hon. Member for Windsor, too.
On engagement with the tobacco industry and the vape industry, the UK is party to the World Health Organisation framework convention on tobacco control, so we have an obligation to protect the development of public health policy from the vested interests of the tobacco industry. We take that commitment incredibly seriously and, in line with the requirements of article 5.3 of the FCTC, we summarise the views of respondents with disclosed links to the tobacco industry when responding to consultations.
With respect to the display of vapes, we know—and the shadow Minister has expressed very powerfully—that research on vape packaging has shown that reduced brand imagery can decrease the appeal to young people who have not previously smoked or vaped, without reducing the appeal of vapes to adult smokers. That is why I believe the measures in clauses 13 and 14 are appropriate and measured, and will have the outcomes that both the shadow Minister and those of us on the Government side of the Committee desire. I commend the clauses to the Committee.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
Clause 15
Free distribution and discount of products
Question proposed, That the clause stand part of the Bill.
Tobacco and Vapes Bill (Fifth sitting)
Andrew Gwynne ExcerptsTuesday 14th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 January 2025 - (14 Jan 2025)
The Chair
I remind the Committee that with this we are considering the following:
New clause 3—Age verification policy—
“(1) A person commits an offence if the person—
(a) carries on a tobacco, herbal smoking product, vaping product or nicotine product business, and
(b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco, herbal smoking product, vaping product or nicotine product business.
(2) Subsection (1) does not apply to premises (‘the business premises’) from which—
(a) tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products are, in pursuance of a sale, despatched for delivery to different premises, and
(b) no other tobacco, herbal smoking product, vaping product or nicotine product business is carried on from the business premises.
(3) Before the specified date, an ‘age verification policy’ is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, a vaping product or a nicotine product on the premises (the ‘customer’) if it appears to the person selling the tobacco product, cigarette papers, vaping product or nicotine product that the customer may be under the age of 25 (or such older age as may be specified in the policy).
(4) After the specified date, an ‘age verification policy’—
(a) in relation to a tobacco business or herbal smoking product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, herbal smoking product or cigarette papers on the premises (the ‘customer’) if it appears to the person selling the tobacco product, cigarette papers, herbal smoking product or cigarette papers that the customer may have been born on or after 1 January 2009 (or such earlier date as may be specified in the policy);
(b) in relation to a vaping product business or nicotine product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a vaping product, or a nicotine product, on the premises (the ‘customer’) if it appears to the person selling the product that the customer may be under the age of 25 (or such older age as may be specified in the policy).
(5) In relation to times before the end of 2033, the reference in subsection (4)(a) to the customer being born on or after 1 January 2009 (or such earlier date as may be specified in the policy) has effect as a reference to the customer being under the age of 25 (or such older age as may be specified in the policy).
(6) The appropriate national authority may by regulations amend the age specified in subsection (3) or (4)(b).
(7) The appropriate national authority may publish guidance on matters relating to age verification policies, including, in particular, guidance about—
(a) steps that should be taken to establish a customer’s age,
(b) documents that may be shown to the person selling a tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product as evidence of a customer’s age,
(c) training that should be undertaken by the person selling the tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product,
(d) the form and content of notices that should be displayed in the premises,
(e) the form and content of records that should be maintained in relation to an age verification policy.
(8) A person who carries on a tobacco, herbal smoking product, vaping product or nicotine product business must have regard to guidance published under subsection (7) when operating an age verification policy.
(9) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(10) Regulations under subsection (6) are subject to the affirmative resolution procedure.
(11) In this section—‘the appropriate national authority’ means—
(a) in relation to England, the Secretary of State, and
(b) in relation to Wales, the Welsh Ministers,
‘herbal smoking product business’ means a business involving the sale of herbal smoking products by retail,
‘nicotine product business’ means a business involving the sale of nicotine products by retail,
‘the specified date’ is 1 January 2027,
‘tobacco business’ means a business involving the sale of tobacco products by retail,
‘tobacco, herbal smoking product or vaping product business’ means a business which involves any one or more of the following—
(a) a tobacco business,
(b) a herbal smoking product business, or
(c) a vaping product business,
‘vaping product business’ means a business involving the sale of vaping products by retail.”
This new clause introduces a requirement on businesses to operate an age verification policy covering steps to be taken to establish the age of persons attempting to buy tobacco, herbal smoking, vaping/ nicotine products, or cigarette papers. It reflects provisions in place in Scotland to be amended by the Bill.
Amendment 68, in clause 50, page 25, line 38, at end insert—
“(2A) In section 4A (Sale of nicotine vapour products to persons under 18) insert—
(a) in subsection (5), at end insert ‘, save if it is a first offence.’
(b) after subsection (5) insert—
‘(5A) A person who has admitted guilt of a first offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a recorded police warning.’”
This amendment prevents penalties for a first offence pertaining to the sale of nicotine vapour products to persons under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.
Amendment 69, in clause 50, page 26, line 26, at end insert—
“(ba) in subsection (7), at end insert ‘, save if it is a first offence.’
(bb) after subsection (7) insert—
‘ (7A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 2 on the standard scale or a recorded police warning.’”
This amendment prevents penalties for a first offence pertaining to a failure to operate an age verification policy in Scotland being a fine not beyond level 2 and provides for a discretionary recorded police warning.
Clause 50 stand part.
Clause 68 stand part.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
Before we were rudely disturbed by the weekend—I hope that all Members had a good one—we were coming to the conclusion of the debate on this grouping. I thank all hon. Members for their valuable contributions to discussions last week; I will continue to respond to the outstanding points raised in the previous sitting.
On the Windsor framework, we are proud to say that the Bill is UK-wide and has been developed in partnership, in full, with the Scottish Government, Welsh Government and Northern Ireland Executive. This Government, and I hope this House, intend the smoke-free generation policy to apply to all four nations.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I have a quick question for the Minister about some of his answers last week about the clause. He said that tobacco products would include bongs, and was quite passionate about that. But clause 48, which is meant to be read in relation to clause 1, defines “tobacco product” as something that contains tobacco. I have seen bongs made of glass, ceramics and various other things, but I have never seen one that contains tobacco. It is certainly easy to make one that does not contain tobacco. I am therefore interested in why the Minister believes that the Bill equates bongs and tobacco products.
Andrew Gwynne
I am grateful to the shadow Minister for that. We will come on to those issues in more detail when we eventually reach those clauses, which given the rate of progress so far may be in the early hours of tomorrow morning, if Members decide so. The only reason why such paraphernalia is on display and legally sold is to consume tobacco, but we will get more information on that for her when we get to clause 45, which covers that issue.
I was talking about the Windsor framework. We believe that this policy is in accordance with our international obligations. In terms of what products are in scope, the Bill captures all tobacco products, including shisha, cigars and heated tobacco. That is because all tobacco products are harmful. There is no safe level of tobacco consumption. For example, tobacco smoke from cigars leads to the same types of disease as the smoke from cigarettes. In England alone, around five times as many people smoke other tobacco products, such as cigars, as did a decade ago, and children are a part of that increase. Shisha, to which the hon. Member for Windsor referred, also causes the same diseases as cigarettes, including cancer, respiratory diseases and cardiovascular diseases. The volume of smoke produced in the average 45-minute shisha session is estimated to be the same as around 25 cigarettes’-worth of tar, 11 cigarettes’-worth of carbon monoxide and two cigarettes’-worth of nicotine.
Finally, there is clear evidence about the toxicity of heated tobacco. The aerosol generated by heated tobacco also contains carcinogens, and there will be some risk to the health of anyone using those products. The crucial point is that, unlike with vapes, there is no evidence that heated tobacco supports smoking cessation. We must ensure that the Bill is future-proofed to include new or novel products, such as heated tobacco, to protect the public from the harms of tobacco use.
Although cigarettes are the most used form of tobacco, we do not want to create loopholes in the Bill so that the tobacco industry can pivot and continue addicting people to tobacco. As I said previously, the issue is about saying, “The market share you’ve got now is it. We are stopping the conveyor belt.” As we know, if we block one road, the tobacco industry finds another route through. We are making sure that the Bill is as watertight and future-proof as possible so that the tobacco industry can no longer continue to trade with another product that harms and addicts future generations.
Sarah Bool (South Northamptonshire) (Con)
I want to look specifically at clause 1(3), which relates to identity documents. In the previous sitting, the Minister said that he would have powers to change the list of identity documents; I think he was referring to clause 46. But at the moment the definition of identity documents is very tight; only the six listed are permitted. My hon. Friend the shadow Minister mentioned veterans cards, and this would be an ample opportunity to include those, as was the intention, because the definition is very strict—people will be able to use only the listed documents.
A further question that has been raised is that the list rules out digital forms of identification, as those listed are physical. I want to understand how retailers can best enforce the measures in practice.
Andrew Gwynne
I do not want to go over the arguments that I have already put to the Committee in an earlier sitting, but there is an ability to use other forms of identification, as I set out. We will be working with the retail industry during the long lead-in time to get in place procedures that retailers are confident with. They will be able to ask for veterans cards, for example.
Andrew Gwynne
Can the hon. Lady let me finish answering the point she put to me? In fact, I have now forgotten the point she put to me—[Laughter.]
Sarah Bool
I was talking from a legal perspective. Clause 1(3) is about what “identity document” means, which obviously means that those listed are the six that people are allowed to use. I take the point that later the Minister could introduce regulations to allow for veterans cards, but legally a retailer’s defence would have to be that they were shown what appeared to be an identity document, which means:
“(a) a passport,
(b) a UK driving licence,
(c) a driving licence issued by any of the Channel Islands or the Isle of Man,
(d) a European Union photocard driving licence, or
(e) an identity card issued by the Proof of Age Standards Scheme”.
The clause is very specific. Whatever the intention, the retailer would not technically be able to use having been shown a veterans card as a defence. Hence I am asking whether we should consider the issue at this point, rather than relying on the regulations mentioned in clause 46.
Andrew Gwynne
I stand by what I have already said. The intention is to work with the retail industry during the long lead-in time to get the mechanisms in place that allow them to adequately enforce the measures in the Bill. We do not want to get this wrong. I politely say to the hon. Lady, however, that in the first instance it is highly unlikely that a veteran born before 1 January 2009 will seek to purchase cigarettes or other tobacco products and be queried about their age. I will take on board what has been said and, if what I said earlier is incorrect, we can perhaps come back to the issue.
I want to come back to tobacco products because the point is crucial. We want to ensure that the tobacco industry has that conveyor belt cut-off. It is therefore rational for all the products that I have mentioned to be included in the smoke-free generation legislation. That will prevent anyone from taking up use of the products in the first place.
As I stated in my opening speech, I am grateful to the hon. Member for Windsor for bringing the discussion before the Committee, but while I appreciate his intention, it is not something the Government support. In relation to the amendments, I say to the Committee that the Government do not believe it is appropriate to establish a more lenient penalty regime for the offences, or to introduce a mandatory age-verification policy.
The clause seeks to change the age of sale for tobacco products, herbal smoking products and cigarette papers in England, Wales, Scotland and Northern Ireland so that no one born on or after 1 January 2009 will legally be sold those products. The Bill will be the biggest public health intervention in a generation, breaking the cycle of addiction and disadvantage, and putting us on track towards a smoke-free UK. For those reasons, I commend the clause to the Committee.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Dr Johnson
On a point of order, Mr Dowd. May I ask a procedural question? I heard some Members shout, “Aye”, and some Members shout, “No”. In the previous session we recorded what Members said, but we have not done so this time. Can I inquire as to what the reason for that is? Last time there was a vote that was then recorded for Hansard, but that has not happened this time.
Dr Johnson
My apologies. I was explaining the principle behind Opposition amendments 58 and 59, which are in my name. I do not know whether the hon. Member for Eastleigh was present on Thursday afternoon. Clause 2 refers to a “person” but does not specify who that person is, and there is as yet no guidance. The Minister said that the person could be the shopkeeper, the shop worker, the chief executive officer or whoever trading standards decided was the right person.
The fines to deter or punish illegal behaviour would necessarily need to be significantly larger for a large corporation than for a young chap of 19 working a few hours in the corner shop on a Saturday afternoon, for whom some fines would be quite punitive. The amendments allow for first offences to be treated leniently, in comparison with repeat offences, and their aim is to encourage the Government to think more carefully about guidance. When the previous Bill was introduced last Easter by the Conservative Government, with very similar wording in many cases, that Government produced guidance on how those charges would be applied. I am trying to encourage the Government to do the same thing. That is the purpose of the amendments.
I will endeavour to speak a bit louder. I do not know whether the hearing loop is working—
Andrew Gwynne
I am grateful to the shadow Minister for bringing this discussion to the Committee. As we have already argued, the amendments would create a more lenient penalty regime for the offence of purchasing tobacco, herbal smoking products or cigarette papers on behalf of someone under age—commonly known as proxy purchasing. In England, Wales and Northern Ireland, the amendments would create an exception to the maximum penalty that a person could face for committing that offence, if it was the person’s first offence. The amendments would establish that someone who admits to committing an offence for the first time would be liable, on summary conviction,
“to a fine not exceeding level 3 on the standard scale”,
which is £1,000, or liable instead to a discretionary caution in England and Wales or to a conditional caution in Northern Ireland. That is one level lower than the fine for which someone who committed that offence would be liable under the current legislation in England and Wales—level 4, which is £2,500. It is two levels lower than in Northern Ireland, where the fine would be at level 5, which is £5,000.
The amendments would have a similar effect on first-time offences as amendments that we have already discussed. If the Committee is content, I will not repeat myself as the rationale for asking the shadow Minister to withdraw the amendment remains the same as that for amendments that we have already covered.
Dr Johnson
Amendments 75 and 76 have the same principle behind them, so I will not repeat myself. They relate to clause 69; as hon. Members will recall, clause 69 amends Northern Ireland legislation that is similar to the legislation in clause 2. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Andrew Gwynne
These clauses make it an offence in England, Wales and Northern Ireland for someone over the age of 18 to buy or attempt to buy tobacco products, herbal smoking products or cigarette papers for someone born on or after 1 January 2009. That is called proxy purchasing. Clause 2 replaces the current offence under the Children and Families Act 2014 of someone aged 18 or over buying or attempting to buy tobacco products or cigarette papers on behalf of someone who is under 18 in England and Wales.
Clause 69 amends the offence of proxy purchasing in Northern Ireland to align to the change in the age of sale. That applies to tobacco products, herbal smoking products and cigarette papers.
Gregory Stafford (Farnham and Bordon) (Con)
The Minister said that this measure was to prevent people from buying cigarettes, cigarette papers or tobacco products for people under the age of 18. Obviously, when the Bill is first passed, that will be true, but with every progressive year, it will prevent buying for people aged 19, 20, 21 and 22. Why has the Minister not made a differential in law to ensure that, once the Bill is in place, there is a separate and more serious offence of buying tobacco products for someone under 18, however far in the future, and a separate offence of buying them for an adult who is ineligible to have them?
Andrew Gwynne
The hon. Gentleman makes a reasonable point. The Bill ensures that no one over the age of 18 is legally able to purchase tobacco products on behalf of someone under the legal age of sale, and there is a differential over time there. The age of 18 was chosen as it avoids criminalising children. This measure applies to all adults, and it does not allow for any ambiguity in law in the future. For example, it captures a situation in which someone over the age of 18, but under the legal age of sale for tobacco, attempts to buy products for a child. This action would be restricted, and the liability would not only be on the person selling the tobacco product, but also on the adult attempting to buy that product for the child.
These clauses align proxy purchasing offences with the new age of sale restriction for England, Wales and Northern Ireland. They provide a defence if a person charged with this offence can prove they had no reason to suspect that the person was born on or after 1 January 2009 or they can prove that they had no reason to believe that the other person intended to use the cigarette papers for smoking, which is in line with existing defences. These clauses are essential to ensure that there are no loopholes in the age of sale legislation, and they build on what works in the current age of sale legislation. I therefore commend the clauses to the Committee.
Dr Johnson
Clause 2 makes it an offence for a person aged 18 or over to make a proxy purchase of tobacco products, herbal smoking products or cigarette papers for a person born on or after 1 January 2009. It essentially stops an older person going in and buying those products for a younger person, which we are aware has been happening for many years with both tobacco and alcohol. If found guilty, the person committing the offence faces a level 4 fine on the standard scale, which hon. Members will recall is £2,500.
The clause replaces the current offence under section 91 of the Children and Families Act of someone aged over 18 buying or attempting to buy tobacco products or cigarette papers on behalf of someone aged under 18 in England and Wales. In many ways, that seems a sensible consequence to clause 1. If we want it to be illegal for people born after a set date to have tobacco, it makes sense to ensure that people cannot buy it for them.
However, I have some questions, particularly in relation to cigarette papers. I did not particularly talk about cigarette papers in our discussion of clause 1 because they are more rightly talked about in relation to clause 2, which treats cigarette papers differently, in so far as it makes them illegal unless a person can prove that they are using them for something else. I looked into what that something else might be. I naively thought that cigarette papers were essentially just bits of paper of a particular thinness that could be rolled up and stuck together with a little gum arabic once somebody had rolled whatever they wanted to roll inside them; in fact, that turns out not to be the case because of the law.
The papers contain ethylene-vinyl acetate, which makes them more fire-resistant. The sad situation is that every year people smoke in bed or in their armchair, fall asleep and cause themselves burns, and sometimes even cause death or house fires. The ethylene-vinyl acetate—a sort of plastic—added to cigarette papers helps them to self-extinguish and reduces the risk of fires; we know that some particularly dreadful fires, such as the Kings Cross fire, are believed to have been caused by loose cigarettes.
The cigarette papers are essentially made from plant fibre, such as bamboo flax and rice, but they can be flavoured and coloured. In the evidence given to the Committee last Tuesday, we heard about the tobacco industry’s aim of ensuring that younger people are enticed by colours and flavours. A quick look at Amazon—other sellers are, of course, available—reveals that people can buy cigarette papers in a whole range of bright colours. People can also buy cigarette papers with pictures of cherries, apricots, bubbles and all sorts of things on them. I thought it was interesting that that has not been covered in relation to cigarette papers. Why give an exemption allowing them to continue to be sold when the reality is that they will continue to be used for rolling either illegal tobacco or other forms of illegal drug?
Jack Rankin
I believe that is the case, and it is something I did not know before today. My questions were along the lines of: is this not just paper, and, if so, why is it excluded in some sense? I was racking my brain for legitimate reasons, and, in her speech, the shadow Minister gave some legitimate reasons, whether that is the woodwind instruments, or the model making mentioned by the Member for Chatham and Aylesford. It seems to me that—even though I disagree with the principle of the Bill—those extra properties would not be necessary for those legitimate uses in this instance.
As my hon. Friend the shadow Minister said, the market should be able to make a difference. Clause 2(3) should be struck from the Bill, because it does not seem that there is a legitimate use for cigarette papers that would not be picked up in another way, shape or form if that subsection were removed. I understand from the guidance I received as a new Member on my first day here that I have to three days to table an amendment before discussion, but I would suggest the removal of subsection (3). Perhaps the Government will consider whether the provision should remain fully in the next iteration of the clause later in this process.
I also want to speak to the term “no reason to suspect”, because I am not clear where the burden of proof sits. If someone goes into a newsagent to order cigarette papers, the overwhelming likelihood is that they will use them to smoke cigarettes. I accept that other reasons exist, but is the shopkeeper supposed to ask? The Bill says “no reason to suspect”; I would expect shopkeepers to have every reason to suspect that people who buy cigarette papers smoke cigarettes. It seems a little woolly. What would the Minister expect the shopkeeper to do in those instances? Is he supposed to ask? If the person says, “I am using this for a woodwind instrument,” is that sufficient? If I were a person who wished to get around the law, I could pretty easily work out that that would get me around the clause.
Andrew Gwynne
I shall answer some of the points made, which were valid. To answer the shadow Minister, cigarette papers are within the scope of the existing legislation. They are included because burning them adds to the volume of smoke and because, with their bleaches and dyes, as she rightly set out, the range of toxicants in the smoke contributes to the additional risks to smokers.
On filters, I am sympathetic to the shadow Minister’s premise. Although cigarette filters have historically been marketed to make smoking safer, there is no evidence of that whatsoever. All tobacco products are harmful. However, as with all regulations, it is important that measures are considered fully and that the evidence base is there, with no unintended consequences. I do not want to give the tobacco industry the opportunity to greenwash and to say, “Not only are filters healthier for you, but they are healthier for the environment.” We absolutely do not want that. We have powers in part 5 of the Bill to restrict the flavours in cigarette papers, so the argument set out by the shadow Minister is covered. On single-use plastics, it is for the Department for Environment, Food and Rural Affairs to legislate, and it already has powers that enable it to consult on single-use plastics in cigarette filters.
As we have heard, a number of relevant products—for example, pipe cleaners and cigarette papers—can be used for musical instruments, as well as for crafting, art, model making and a whole range of other uses. We do not want to restrict those uses; we want to make it more difficult for people to access such products for the provision of smoking. As we said when we discussed clause 1, we are not making the smoking of tobacco illegal; we are preventing the next generation from getting hooked. The restrictions therefore strike a proportionate balance. A current smoker will be able to smoke until the until the day they die. Although we will do everything we can to give them the opportunity to give up, they will be able to access the products legally, but the Bill will introduce restrictions on them.
We think we have got the balance right, but we will take away the arguments and consider them, because they are valid arguments about how a musician, or someone who wants to use them for crafting and modelling, will still able to access these products if they want to use them.
Dr Beccy Cooper (Worthing West) (Lab)
I have quick and pragmatic point about the different uses of cigarette papers. I am a mum and a saxophone player myself, and I suggest that other materials can be used in the place of cigarette papers. I appreciate the debate, but I do not think this is about a pragmatic use.
Andrew Gwynne
That is precisely the point I was coming to. We will take the argument away because it is a reasonable argument, and we will perhaps consider returning to this issue on Report.
I know that the shadow Minister has every sympathy with the fact that cigarette papers are dangerous when used for the consumption of tobacco, which is what we want to bear down on. As I have said, there are powers in part 5 to restrict the flavours of cigarette papers, but we want to get the balance right so we will take the argument away and consider it.
Dr Danny Chambers (Winchester) (LD)
I am reticent to extend the discussion about cigarette papers; I was unaware it was possible to discuss something to such an extent. I am not legally trained, so I ask this for my own understanding as someone who is not a learned Member. If the exact same product was renamed and rebranded as model paper or musical instrument paper, would this law still apply to it?
Andrew Gwynne
That is a good question. Of course, if it was to be used for the consumption of tobacco, it would come within the scope of the Bill. We have to be clear that many of these products have dual uses, as we have heard. I am as guilty as anybody of making pipe-cleaner characters for my children and grandchildren—grandchild, rather, because I have only one so far.
We want to make sure that those who want to continue smoking are able to do so, but that obvious restrictions and boundaries are put in place regarding the accessibility of these products, so that no child born after 1 January 2009 will ever legally be sold them.
Dr Caroline Johnson
I thank the Minister for engaging in this discussion, because although it is somewhat technical to discuss cigarette papers, it is important. The hon. Member for Worthing West made the key distinction, which is that it is about the ingredients that are in a product. It would be possible for the Minister to devise legislation that sought to ban cigarette papers, without preventing a market in a similar product that would be ineffective as a cigarette paper but useful for the average modeller.
Andrew Gwynne
Perhaps we will return to that on Report. I have every sympathy with what the shadow Minister says. We do not want to prevent the legitimate use—indeed, a whole variety of uses—of these products, which is why we have the exemption in the Bill. If we are able to do what she suggests under the powers in the Bill, that would be great; if we can do only some of what she asks for in respect of flavours, that would go part of the way, and we will need to look at how we can strengthen that. If the shadow Minister can be a little patient, I think we can come back to this on Report.
Andrew Gwynne
The clauses restate the ban on tobacco vending machines in England, Wales and Northern Ireland and extend it to include vending machines that sell cigarette papers. The prohibition came into force in 2011 in England and in 2012 in Wales and Northern Ireland. Under the amendments made by the Bill it will be an offence for a person with management or control of a premises to have a vending machine available for use from which tobacco products, herbal smoking products or cigarettes may be bought.
The prohibition was originally introduced because tobacco vending machines were largely unsupervised and allowed under-age access to tobacco. In 2010, 8% of 11 to 15-year-olds who regularly smoked said that vending machines were a usual source of cigarettes. The policy has successfully contributed to reducing smoking rates in young people and has been effective at enabling the age-of-sale restrictions to be implemented and enforced properly.
The existing legislation is consolidated in the Bill to replace the regulations that cover an automatic machine from which tobacco products, herbal smoking products or cigarette papers may be bought. With all the restrictions that apply to such products covered in one Act, those who are affected by and who apply the legislation will find it easier to access them. I commend the clauses to the Committee.
Dr Johnson
As the Minister says, clause 3 outlaws the use of vending machines that sell tobacco or tobacco products, as well as herbal smoking products and cigarette papers. I note that there are no amendments to clause 3, presumably because it is somewhat settled and established law.
In the same way as vapes and other nicotine products, which we will come to later, vending machines make it much easier for people under the age of 18—or, under clause 1, those born after 1 January 2009—to buy age-restricted products that they are not legally allowed to purchase. They are self-service machines, so it is difficult to prove age and easy to get around if it is machine led. Historically, such machines have often been unsupervised by staff in a shop, thereby providing easy opportunities for younger people to buy from them.
It was coalition Government legislation—the Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010—that banned the sale of tobacco products from vending machines from 1 October 2011. That statutory instrument was made under section 3A of the Children and Young Persons (Protection from Tobacco) Act 1991, which was inserted by section 22 of the Health Act 2009. That is a complex chain to follow, so having this clause where everything is in one place is much simpler. The clause also adds herbal smoking and cigarette paper vending machines to the legislation—on a personal level, I welcome that, for the reasons I have given already—and clarifies the penalty, which was more difficult to establish when looking at the previous trail of legislation.
However, the clause does change the terminology. Previously, it was illegal on the basis of sale “from an automatic machine”; the Bill talks about an “automatic machine from which” products “may be bought”. It seems that they are the same thing, but of course we heard repeatedly in evidence how the tobacco industry tries to get round these things.
I found a trail of people discussing online how to get round the vending machine legislation, which raised various questions. If I buy a product from a major retailer online, I can choose to get that delivered to my home, I can collect it from one of its stores, and I can also pick it up from our local Co-op, the local post office, or from a box with a keypad door, at the garage and in other locations. If one were to buy tobacco products, herbal smoking products, or cigarette papers using an online app, and collect them from a dispensing machine—an automatic machine that dispenses cigarettes—in a pub, would that be covered by this legislation, or is that a loophole that could be exploited? I would be interested in the Minister’s comments on that, because we have heard how inventive the industry is. Would it be possible for people to circumnavigate the Bill’s intent by creating a machine that does not sell the product but simply gives to a person the product they have already bought?
Clause 70 applies to Northern Ireland. It will insert into the Health and Personal Social Services (Northern Ireland) Order 1978 the new article 4B, which is essentially the same as clause 3, so the same questions and comments apply. The only difference between the two clauses that I can see is that in Northern Ireland we have a level 5 offence, and in England and Wales we have a level 4 offence.
I wondered briefly why there was no clause for Scotland, but section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 makes it illegal to have an automatic machine for the sale of tobacco products, regardless of whether the machine also sells other products, with a level 4 fine, so Members can be reassured that that is covered. I do not think the Minister answered this point in relation to the previous clause: clearly he chooses the fine levels for England and Wales in the Bill; why has he chosen to have the same penalty as Scotland but a lower penalty than that in Northern Ireland?
Jack Rankin
The nub of clause 3 is age verification. The reason the Minister and the Government do not want tobacco vending machines in operation is not that they do not want convenience for the customer, but rather that they want to make sure that people are of a suitable age under the law. Without somebody to check, that is a problem.
In my youth, I used to play snooker in what was the Minister’s constituency. There was a little area of the club, with a little gate, where the gambling machines were, and there was a tobacco vending machine in there. The only thing preventing us from going in there was honesty. Whereas it stopped me as a teenager, I do not suppose that it would have stopped adults in the same way—if you wanted to restrict adults from being a smoker in the future, that would not serve as a deterrent.
My question is about nicotine products, which I was hoping the Minister could come to, perhaps when he winds up. Nicotine products are defined separately from tobacco products in this legislation, so it would still be acceptable for things such as nicotine patches to be sold through vending machines. That does not sound unsensible, because it does not seem to me that people trying to evade this law would be attracted to nicotine products in the same way they might be to other tobacco cessation devices. Perhaps the Minister can comment on how he proposes to treat them when he winds up.
Andrew Gwynne
Let me first say to the shadow Minister that we are aware of the new type of machines she mentioned, and we are concerned by their presence. The Department is looking to ensure that there are no loopholes in this legislation and that these machines, which may seek to bypass the age of sale restrictions, are not able to. Secondly, she has already answered the point about Scotland: the reason these measures do not appertain to Scotland is that Scotland already has legislation covering them.
To other Members, I say that we are overcomplicating this. As I said in opening, the clauses merely restate the existing ban on tobacco vending machines in England, Wales and Northern Ireland. We are consolidating the legislation to make it easier to understand the law but also to enforce it from one place—and that is it. This is the consolidation of existing powers that are working now.
The hon. Member for Windsor is absolutely right when he says that we want to ensure that age of sale is absolutely enabled to be enforced. As he said, when he was playing snooker in my old constituency, he would have been able to purchase tobacco products from a vending machine, and it was basically on the basis of trust that people were able to do that. That is no longer acceptable. We are bringing in the age restrictions, and we therefore need to make sure that they are adhered to.
I do not wish to stray on to nicotine products, because those are subject to a debate further on in the Bill. However, the hon. Gentleman is right to draw a distinction in the way he has. That is why the whole Bill treats nicotine products separately to, and very differently from, tobacco products, for reasons we will get to in due course.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Sale of unpackaged cigarettes
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
These clauses restate that it is an offence for tobacco retailers to sell cigarettes that are not in the original packaging they were supplied in. Selling unpackaged cigarettes is currently an offence in England, Wales, Scotland and Northern Ireland, and these clauses re-enact that offence. The prohibition was originally introduced to reduce smoking among children, because there was evidence that children were being sold single cigarettes. The clauses ensure that the sale of loose cigarettes continues to be prohibited and that cigarettes are sold in the appropriate packaging. I therefore commend the clauses to the Committee.
Dr Johnson
I thank my hon. Friend for her contribution, and she is right to talk about the quantity. If the principle behind this clause is to ensure that the quantity of sale is such that it restricts younger people from purchasing these products with their pocket money, what consideration has the Minister given to the quantities of herbal cigarettes, or herbal smoking products, and cigarette papers, so that they would be purchased in quantities not easily accessible to young people?
On the comments made by my hon. Friend the Member for Windsor about the fine levels, the fines are level 3, which in this case is consistent across the four nations of the United Kingdom. Clause 51 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to add proposed new section 4E, which essentially has the same effect—it is different wording, but it has the same essential effect of banning the sale of loose cigarettes. Clause 71 adds proposed new section 4C, which is essentially the same as clause 4, to the Health and Personal Social Services (Northern Ireland) Order 1978 to have the same effect. Again, it has the same fine, so there is some consistency across the four nations of the country, but I would be grateful for the Minister’s comments on the points I have raised.
Andrew Gwynne
I thank the hon. Lady for raising these matters. Again, it is a case of perhaps overcomplicating what the clause does. As with clause 3, clause 4 merely restates that it is an offence for tobacco retailers to sell cigarettes that are not in the original packaging they were supplied in. We are not talking about proxy purchasing, or somebody breaking up a packet of cigarettes and selling them as an individual; we are talking here about retailers. This practice used to be quite common, but thankfully, because of the measures that are already in place, it is already an offence and we are reaffirming that offence in the Bill.
Dr Johnson
The Minister says that it has been illegal for some time and that is an offence to sell loose cigarettes, and of course it has been. However, we heard in evidence from the Royal College of Physicians last week that the sale of loose cigarettes to youngsters was still a problem—it is an entry way into cigarettes. Does the Minister have any comment on whether reaffirming the offence with this legislation will actually help to enforce it to any greater degree?
Andrew Gwynne
Yes, I believe it will. Of course, this measure is not being taken in isolation, and it is not just a stand-alone measure. This is part of a whole package of tobacco control measures that form this part of the Bill. Taken together, these things will ensure that we drive down even further smoking prevalence in young people. However, we do not want to undo the legislation as it stands; we need it to be part and parcel of the whole raft of measures we are bringing forward.
Sarah Bool
I am concerned about whether we are accidentally and inadvertently creating a loophole here. If we are not going to ban someone from breaking down a cigarette packet and selling it, that is the way they will go about doing it. We should be going for consistency and tightness on this. I appreciate that that is the law as it stands, which is why we have applied it, but have we had the foresight to ensure that we do not create a loophole? It seems quite possible that we have.
Andrew Gwynne
If the hon. Lady is not talking about retailers breaking up packets, which is illegal, she is talking, effectively, about proxy purchasing—an adult buying tobacco products for children, splitting up the packet and selling those products on. It is already an offence for those children to get cigarettes—whether a full packet or part of a packet—even if they are not from retailers. It is proxy purchasing, and we have already covered that.
The shadow Minister raised the issue of messaging on individual cigarettes. I am not sure whether she was under the misapprehension that it is not covered in the Bill. The Bill restates the existing power to make regulations on the appearance of tobacco products, including cigarette sticks. Not only that, but it goes further by extending the power to other products, including cigarette papers. Although we do not plan to introduce dissuasive cigarettes at this time, as we believe we already have strong health warnings in the existing measures, we will continue to monitor the situation. We do leave an open door to it, and the powers are there. We will, however, mandate pack inserts into cigarette packs. We believe that that is proportionate at this time, while not closing the door to going further.
Lastly, the shadow Minister noted that, in some cases, fines are consistent across the United Kingdom, but that, in others, there are differences. I am afraid that that is the result of the devolution settlement. We have built into the Bill the ability for all four nations to walk together on making our country smoke-free, but the levels at which fines are levied are entirely a matter for the devolved Administrations. That is why there is sometimes an inconsistency in fine levels.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Age of sale notice at point of sale: England
Question proposed, That the clause stand part of the Bill.
Andrew Gwynne
Clauses 5, 6 and 72 replace the requirement for age of sale notices in England, Wales and Northern Ireland to reflect the new age of sale for tobacco products. Clause 55 provides Scottish Ministers with the power to set requirements about warning statements, which are notices that reflect the new age of sale requirements there. Age of sale notices are required under current legislation and must state in a prominent position:
“It is illegal to sell tobacco products to anyone under the age of 18.”
The Bill will replace that requirement with a requirement for notices to reflect the new age of sale, stating:
“It is illegal to sell tobacco products to anyone born on or after 1 January 2009.”
The notices must comply with any requirements set out in regulations on the size or appearance of those notices. This updated wording on age of sale notices will support tobacco retailers in implementing the new age of sale restrictions by helping to clarify and underline them for customers and staff. I therefore commend these clauses to the Committee.
Dr Johnson
Clauses 5, 6, 55 and 72 make provision for age of sale notices. Clause 5(1) makes it clear on which premises the notices must be displayed. In some respects, that is obvious, but the fact that the Bill makes clear that the notices must be on the same premises where the tobacco is being sold is perhaps a sign that the Minister has the measure of the tobacco industry: if that was not clearly stipulated, there would be temptation to display the notices in head office or somewhere else where no one could see them. The fact that it is thought necessary to state what is blindingly obvious—that the notice must be displayed in the right place—is somewhat sad.
Subsection (3) deals with positioning. The statement that the notice must be prominent and readily visible at each point of sale is relevant to shops that have more than one till at the counter. One sometimes goes to the counter of a large supermarket, or similar, and sees a whole row of tills. It is therefore important that the signs are visible from all the tills, not just the one closest to the tobacco.
What the notice must say is provided for in subsection (2):
“It is illegal to sell tobacco products to anyone born on or after 1 January 2009”.
That is clear, simple and informative, which is good. However, it does not mention cigarette papers or herbal smoking products. Why has the Minister chosen not to include the other items included in the rolling age of sale and the Government’s smoke-free generation on the notice for clarity? That is important because we heard in evidence, and have all read in the news, of examples where people who work in our retail sector have been treated in an abusive—sometimes violent—fashion or people have been very rude to them.
If the purpose of the notice is to be clear on what the law is, providing clarity that it also includes herbal smoking products and cigarette papers would enable the public to be aware of the law and the retailer to point to the sign and say, “I can’t do this—look.” The message as currently drafted does not do that, and that could cause shopkeepers or shop assistants more difficulty. I notice that under subsection (4), any aspect of the notices, including the appearance and wording, can be amended, so that could be done at a later date if the Minister feels that the shopkeepers’ evidence is that herbal smoking products and cigarette papers are proving a challenge. Why has he chosen not to do that at the outset?
Subsection (7) talks about a defence of having taken reasonable steps. I have two questions on that. First, is “It fell down and I hadn’t noticed, your honour” an adequate defence? How does the Minister envisage the reasonable steps defence? What are the reasonable steps? If the Government choose under subsection (4) to change the appearance or wording—perhaps if they discover it is inadequate in some way—what steps will need to be taken to ensure that all retailers are aware of those changes, and within what timeframe will retailers be expected to react to those changes?
The impact assessment says that the cost of putting up a new sign is not prohibitively expensive for an individual business—it is about £4 per retailer—but it means that there is an overall cost to small and micro-retailers of around £124,000 in England, and £143,000 in the UK. That is a cost to business overall, even if a small one to individual businesses. The impact assessment also notes the cost of staff training and awareness. There are an estimated 42,582 convenience stores in England, each with a store manager who would have to disseminate that information to the estimated 299,957 members of staff. Of those stores, 71% would be considered small or microbusinesses.
The cost of amending those things means that the Opposition invite the Minister to get the notice right the first time so costs are not incurred twice. There is an estimated cost of around £2 million in total on training. Although the cost to any one small or microbusiness is likely to be small—around £70 on average—that cost combined with £4 for a sign, at a time when small businesses are being squeezed by other budgetary measures the Government have brought in, is another potential straw to break the camel’s back.
The fine is at a level 3, and the person who carries on a business involving the sale of tobacco products by retail is the person who is liable. But what does it mean to be
“a person who carries on a business involving the sale of tobacco products by retail”.
Is it the director of the business? Is it the store manager who is on duty that day? Is it the overall store manager, or is it the licence holder?
Tobacco and Vapes Bill (Third sitting)
Andrew Gwynne ExcerptsThursday 9th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 January 2025 - (9 Jan 2025)
The Chair
There will be a further opportunity to raise a point of order. It will be up to whoever is in the Chair at the time to decide whether to take the kind of action that, on the Clerk’s sound advice, I have just taken. I appreciate that this is a complex Bill and we may well find that one or two amendments are more comfortably located under other clauses. If that is so, sensibly and flexibly, we will endeavour to accommodate that.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
On a point of order, Sir Roger. The loop system in this room does not appear to be working, at least not for my hearing aid. I do not know whether somebody can get it switched on or, if not, whether Members could please amplify when they speak.
The Chair
That request, I understand, has been remitted. We will do the best we can. Will hon. Members be kind enough to ensure that they speak clearly for the sake of the Minister and anybody else in a similar position? Exceptionally, I am more than prepared to make sure that the person speaking is addressing the Minister rather than the Chair, as would normally be the case, because sometimes in these circumstances it helps to see somebody’s lips. Again, I can only apologise that the system ain’t perfect.
I am well aware that there are hon. Members present who have not taken part in the Bill Committee process before. First, on code of dress, it is fine if anybody wishes to take their jacket off. You have the permission of the Chair to do so. You are supposed to seek the consent of the Chair before doing so; you have that consent.
Hon. Members who wish to intervene may do so in the same way as on the Floor of the House. It is up to the Member who has the Floor whether to give way, but it is customary in Committee. Unlike on the Floor of the House, it is not uncommon for a Member to seek to intervene more than once on the same subject for further clarification, if necessary. That is a given. I trust that Members are aware that—again, unlike on the Floor of the House—they are permitted to speak more than once during the debate on each grouping.
That brings me on to the groupings, about which we have had quite a lot of discussion already. This is an arcane process. Groupings on amendments and new clauses are tabled out of sequence, but in recognition of the subject matter under discussion. You will find that there are groupings with a lead amendment, which is the only one that will initially be moved. It is not uncommon for hon. Members to say, “Hang on a minute, I want to move that other amendment.” The answer to that is, “Later.” You move the amendment when we reach the appropriate point in the Bill; amendments are not necessarily moved immediately. If anybody wishes to press an amendment that is listed, but that is not immediately called as the lead amendment, will they please let the Chair know? It is not our job to try to prevent you from causing a Division if you choose to do so, but we do need to know. Otherwise, it may not get called.
Government amendments and some new clauses will be called in sequence as we work through the Bill. Although they may be debated this morning, they might not be called to be voted on—divided on—for two or three weeks. If you are in any doubt, ask. That goes for anything else as well. This is a difficult process to master. Whoever is in the Chair will be more than willing, if we do not know the answer, to take advice—the Clerk always does know—and make sure that you get the answers you want. In other words, if in doubt, ask. Do not sit there floundering.
That was intended to be helpful. I do not know whether it was or not. We will now commence line-by-line scrutiny of the Bill.
Clause 1
Sale of tobacco etc
Dr Johnson
The amendments do not stand in my name, and they are not amendments with which I agree, but they relate to a very important part of the Second Reading debate that goes to the heart of the principles behind the Bill. I have moved the lead amendment so that the debate can be heard in full and so that hon. Members can establish for themselves whether they wish to support the amendments.
I will refer to these amendments as the Maguire amendments, if that helps, as they were all tabled by the hon. Member for Epsom and Ewell, who is not on the Committee. It is, of course, the Whips who choose who goes on the Committee—[Interruption.] Sorry, can you hear me?
Dr Johnson
My hon. Friend makes an important point. Some people are averse to carrying ID—it is not something that bothers me personally, but I am aware that for some people it is a sticking point. In a previous debate before the election, the former Member for Norwich North, Chloe Smith, made the point that not all adults will be affected by this legislation, but only a relatively narrow band of them.
The last time I was carded for ID, I was 38. I was not buying the typical basket of a 17-year-old; I was buying flowers—orchids—and a bottle of champagne for someone’s housewarming, as well as some strawberries, because she had phoned to ask me to get some when I was on the way, as she was running out at the housewarming party. I was IDed, so I was not able to buy the champagne for her, because the supermarket would not let me. That was disappointing for both of us, but I accepted the fact that if ID could not be shown and they genuinely believed that I looked under 25, that was the law and it had to be accepted. That is not universally the case, and I am aware—as we heard in evidence—that retailers can sometimes receive significant verbal and occasionally violent abuse when they ask for ID in that way.
Andrew Gwynne
The shadow Minister is having a good morning, having not had a particularly great evening last night. With no disrespect to the hon. Member for Windsor, who made this point in his intervention, by the time that the age of sale is legally his age, we hope that smoking prevalence in that age group will be next to zero, and therefore it will not be an issue.
Dr Johnson
I thank the Minister for his intervention, although I am not sure what he is implying about the age of my hon. Friend the Member for Windsor—
Tobacco and Vapes Bill (Fourth sitting)
Andrew Gwynne ExcerptsThursday 9th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 January 2025 - (9 Jan 2025)
Sarah Bool
Once one has turned 66, that person does not have to confirm their age each and every couple of days or necessarily carry ID to claim their state pension—it is noted on the record, and that is that. Here, potentially, however, if we have an outright ban from 1 January 2009, whenever someone tries to buy a cigarette, after 2034 retailers will have to ask on every single occasion how old they are, for fear of a fine.
I agree that we already have the age 25 verification, but it is safe to assume that people reach an age when they do not have to prove it. I find it incredibly flattering when I do get IDed, but we all reach a point when we do not need it. In the Bill, however, we do. It might seem to be a quick check—one simply looks at the date of 1 January 2009—but we can foresee that being troublesome for retailers. Also, we very much have to bear in mind the issue of the abuse of staff and, as British retailers have mentioned, the increased financial and administrative burden, in particular for smaller shops, which is often where vapes and tobacco are sold. That will have a big impact on their businesses.
Indirectly, a potential effect is the introduction of legal inequalities and giving sanction to age discrimination by creating a create a class of under-aged adults. Furthermore, a point I would like to stress is that, as a lawyer, one of my main concerns is enforceability. I do not disagree with the principle of the next generation being smoke-free—I think that is admirable and important—but I want to ensure that we pass a piece of legislation that will work in practice. We have to think about how this will work in due course, even if in 10 years’ time. That is something I wanted to put on the record.
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
It is a pleasure to serve under your chairmanship, Mr Dowd. I am also grateful to the shadow Minister, the hon. Member for Sleaford and North Hykeham, for bringing this discussion before the Committee today.
These Liberal Democrat-tabled amendments would make it an offence to sell tobacco products, herbal smoking products or cigarette papers to a person under the age of 25, rather than to anyone born on or after 1 January 2009. The amendments also seek to change the age-of-sale notices to align with the change in the age of sale, which is why there are so many consequential amendments.
This group of amendments also includes amendments 29 and 30, which cover proxy sale of tobacco products in Scotland. To save time, I assure the Committee that, instead of now, I will discuss those particular issues during the clause 2 debate, which I hope will begin shortly, as that relates directly to the points in that group on proxy sales, rather than to age of sale.
As we heard from our expert witnesses during oral evidence, smoking is the No. 1 preventable cause of death, of disability and of ill health: it claims about 80,000 deaths a year across the United Kingdom; it causes one in four of all cancer deaths and it kills, as the shadow Minister rightly pointed out, two thirds of its long-term users. I say to the hon. Member for Windsor that there is no liberty whatever in addiction. We seek to ensure that the next generation is never addicted to tobacco products in the way that the current generation and previous generations have been. That is the real freedom here: the freedom not to be addicted to a product that, frankly, would not be allowed were it invented today.
Jack Rankin
I take the Minister’s point, but there is the potential throughout the Bill for double standards. He talks about addiction—I disagree with him, but it is a perfectly reasonable point to make—but the same could be true of gambling or alcohol. We allow, for example, gamblers to advertise on football shirts. So if the Minister takes the logic of his argument all the way through to its necessary end conclusion, then this Government must be legislating for all those addictive social things that are incredibly damaging as well.
Andrew Gwynne
I understand the hon. Member’s argument, but it does not hold water. There is no safe level of smoking. That is the fundamental issue. People can drink or gamble responsibly. We have laws in place to protect against the harms of those things; we can argue—although this Bill is not the place for it—about whether those measures go far enough or go too far at present, but there are protections in place for alcohol and gambling harms. Tobacco is a product that kills two thirds of its users, and as a state, we have a duty to save lives.
Jack Rankin
I take the Minister’s point somewhat, but I think that there is a conflation of argument here about cigarettes and tobacco. If I may say so, the Minister alternated somewhat between the two. That may be the case with cigarettes; I have never been a smoker of cigarettes, but on new year’s eve I had a big cigar with my dad and brother, and the last one I had with them before that was at my brother’s 30th. I think that was a safe and pleasurable thing to do, and something that the state should not be infringing on. It is not just cigarettes that the Government are going after—it is all tobacco products.
Andrew Gwynne
The fact is that the primary consumption of tobacco in this country is through cigarettes. Tobacco is not a safe product. There is no safe level of tobacco use. The hon. Member might enjoy a cigar every now and then; that is a risk that he is prepared to take and that the law allows him to him to take, but I would argue that is still a risky behaviour. Tobacco, in whatever form it is consumed, causes health defects for him. The Bill seeks to ensure that we that we have a future generation that is weaned off tobacco, nicotine, and the toxins and the pollutants that come from a range of products, and that we give the tobacco industry no room for manoeuvre to shift from one product to another. It is about ensuring we have a generation that is freed from the addiction and the dirt and the death that tobacco brings.
Tobacco puts a huge pressure on our NHS. It costs taxpayers billions of pounds on our health and care services—a cost of £3.1 billion a year from smoke-related illnesses. The cost of smoking to our economy is also huge: £18.3 billion of productivity lost every year, with smokers being a third more likely to be off sick.
The Bill will deliver on this Labour Government’s manifesto commitment to create the world’s first smoke-free generation. To be fair to the shadow Minister, who supported the Bill on Second Reading and supported the previous iteration of the Bill that her Government introduced, it is to the credit of the right hon. Member for Richmond and Northallerton (Rishi Sunak) that his Government brought in the original iteration of the Tobacco and Vapes Bill. I pay credit to him for showing leadership on public health, and to the shadow Minister for always being a vocal supporter of tobacco control and opponent of the scourge of youth vaping. I only wish that some of her colleagues understood the sense of what we are seeking to do.
Dr Danny Chambers (Winchester) (LD)
I agree with everything that has been said; the Minister has given a powerful summary. We have discussed freedom of choice and the lack of it, and I remind hon. Members of the extreme examples provided by some of the expert witnesses yesterday: they talked about someone who had their leg amputated purely because of complications as a result of smoking, and who, the same day, felt the need to light up another cigarette. There is no freedom of choice when someone is addicted to this substance.
This might sound comical, but it shows that there is no safe level of passive smoking: as vets, we struggle to manage asthma in pets—in dogs and cats—that come from houses where the owners smoke. That is how dangerous it is. This Bill is obviously about public health—I am not trying to conflate human and animal health—but the perception that there is a safe level of smoking is utterly wrong.
Andrew Gwynne
The hon. Gentleman is absolutely right. Anyone who heard the evidence on Tuesday cannot but have been shocked at what medical professionals see with their own eyes—not just the procedures they have to use, such as amputations, but the people who are so addicted to that product that they have to light up, even having lost both legs. That was a powerful contribution, and he is right to labour the point that there is no freedom in addiction. We are seeking to free the next generation from ever being in the situation that, as he reminds us, was outlined in detail by professionals in the evidence session.
That leads me to the amendments. Simply raising the age of sale to 25 will only raise the age at which people start smoking; it will not meet this Government’s, or indeed the previous Government’s, ambition to make the United Kingdom smoke-free. We also know—and we heard this from the four chief medical officers of England, Scotland, Wales and Northern Ireland, in unison—that whenever there has been a change in tobacco control legislation, the tobacco industry is clever; it is smart; it sees that one road has been blocked, so it finds another. The industry has been swift to refocus its tactics. For example, when flavoured cigarettes, including menthol, were banned in the UK, the industry used product innovation to exploit loopholes in the ban. It created new products, such as menthol filter tips and cigarette-like menthol cigarillos.
Those examples demonstrate how the tobacco industry will always regroup and refocus its efforts to respond to whatever regulations are in place. If we raised the age of sale to 25, the industry would likely change its business model to target older age groups.
Let us be clear here about what we are seeking to do. We are not criminalising current smokers; people who are legally able to purchase tobacco products and consume them will always be able to do that. However, we are having a cut-off point. We are saying to the tobacco industry, “This is your customer base now. That’s it. Game over. What you have got is all you have got. You can’t kill two thirds of your customer base and expect other people to come along the conveyor belt. We’re stopping the conveyor belt. What you have got is it.” We will do all we can to make that customer base even smaller through smoking cessation services and effective targeting of existing smokers to help them to quit. But this is it—this is the customer base, and it will shrink rapidly over the next few years, so that no child born after 1 January 2009 can ever legally be sold tobacco products.
That means that the examples we have heard from Members in this debate about a 45-year-old being asked to show ID are an irrelevance. They miss the point. The impact assessment that accompanies the Bill says really clearly that in 25 years’ time—in 2050, which is not that far away—we expect smoking prevalence among people aged 30 and below to be near zero. The logical consequence of that is that there will be very few people of middle adult age going into shops to purchase tobacco. The reality is that there probably will not be a market for tobacco products by then. Retailers will have diversified into selling something else, because there will not be a market of sufficient scale for tobacco to be sold.
All the arguments that we have heard—they have actually been pursued by the tobacco industry—as to why these things are not workable are for the birds. They are for the clouds. They are for another world that does not exist, because the measures in the Bill will ensure that we are smoke-free, and I find that really exciting.
Jim Dickson (Dartford) (Lab)
The Minister is making an extremely eloquent case. He referred to the impact assessment for the Bill. I wonder whether he has spotted that on page 61, the likely societal benefits of having a smoke-free generation are estimated at something like £73 billion by the end of the century. I wonder whether he believes, as I do, that the amendment that we are considering puts that societal benefit hugely at risk.
Andrew Gwynne
It does, for the reasons that I have set out. I thank my hon. Friend for pointing to the impact assessment, because it sets out a very clear reversal of the current situation, in which the costs of tobacco to society, the individual, the economy and our health and care services are massive. In the future, that situation will be reversed—it will become a positive, not a negative—because people will be healthier and living longer. They will not be living with the comorbidities that are a direct consequence of tobacco use. They will be free from addiction. They will actively participate in the economy. That is why we are moving to smoke-free, rather than just shifting the age of sale to a fixed point and continuing to give tobacco companies that conveyor belt. If we did so, people would eventually reach 25 and the tobacco companies would be able to target them again—maybe not in as great a number, but we would have switched the conveyor belt back on.
I want that conveyor belt stopped for the next generation. That is what the last Bill did, to be fair, and it is what this one does. It is about protecting future generations from becoming addicted to nicotine and carrying the horrible burden of disease that is a direct consequence of all tobacco products. Breaking the cycle of addiction and disadvantage and allowing people to live healthier lives—that is true freedom. Let us be clear: there is no freedom in addiction. There is freedom in never being able to be sold tobacco and having a genuinely smoke-free UK. For that reason, I ask the shadow Minister not to press these Liberal Democrat amendments.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I certainly do not want to press the amendments to a vote, but it may be that other members of the Committee do.
Dr Johnson
Thank you, Mr Dowd, for the guidance, and I thank my hon. Friend the Member for Windsor for his intervention.
The age of the customer is important. The principle of existing tobacco legislation is that it protects children under the age of 18 from tobacco. This legislation will protect some adults from tobacco as well.
I have a question for the Minister about the offence. If we get 10 years down the line and we cannot sell tobacco to people under the age of 28 or 26, depending on when legislation takes effect—people in their 20s—we will have one group made up of children, who are not allowed to buy tobacco, and another group made up of adults who are not allowed to buy tobacco. I care deeply about the protection of children, but I believe that adults have a right to choose risk to an extent, where it does not harm others within society. Does the Minister think that, when we get to that point, selling tobacco to a child is a more serious and aggravating factor than selling it, perhaps inadvertently, to a 25-year-old when the age limit is 26? It is being sold to an adult who has the capacity to make a choice—although an illegal choice—about risk, but for the shopkeeper, at that point, selling to a 15-year-old would be a more serious offence.
Andrew Gwynne
I am grateful to the hon. Lady for putting that question, because proportionality is key here to how trading standards will approach the fines regime. The reality, however, is that the law will be clear as to what the age of sale will be. If a retailer has knowingly sold tobacco products—against the law—to someone who it is clear should not have been sold to, trading standards may take a different view than they would were the retailer’s defence that they had every reason to believe that the person was the age they claimed to be.
Dr Johnson
That is not quite what I meant. I guess the question is this: if someone has sold tobacco products to a person of 45 who should not have them because they are now illegal, that is an offence—it is breaking the law as set out in the clause—and would see a penalty applied—[Interruption.] Well, it may see them liable for a penalty—let us put it that way. If the retailer sold that same tobacco to a 14-year-old, would the Minister not agree about the difference? Selling it to a 45-year-old and a 14-year-old might be illegal—the same crime on the face of the Bill—but the penalties for selling tobacco to a minor should be greater than those for selling it to an adult.
Andrew Gwynne
We have heard very clearly from trading standards. The current practice is that trading standards officers across the four jurisdictions of the United Kingdom, which have different penalty regimes in place, apply a degree of proportionality. There is nothing in the Bill that changes that situation. Trading standards will always approach this in a proportionate and responsible way. However, as legislators setting out a clear desire to have a smoke-free generation across the UK, we must be clear that there is a borderline where one side is legal and the other is illegal, and that there are maximum penalties for breaking the law, as there are for a whole range of things. I do not want to differentiate within the smoke-free generation by saying, “Well, you can be a little bit smoke-free because you’re an adult now, but you should be absolutely smoke-free because you are kids.” From 1 January 2009, smoke-free is smoke-free.
Dr Johnson
I understand the Minister’s point. However, my point was that even in a world where things are illegal, we do have aggravating and mitigating circumstances in law. I suggest that, particularly as the rolling generations get older, selling to a child becomes an aggravating offence. I ask the Government to consider that.
Dr Johnson
My hon. Friend makes a valid point. I suggest, so that I do not try the patience of the Chair, that we discuss that when we get to clause 1 stand part, because it speaks to the substance of the clause rather than the substance of these amendments.
Dr Johnson
As the Minister is in the mood for answering questions, would he like to intervene to say whether the guidance on who specifically will be liable for the fines has been written and published?
Andrew Gwynne
I will happily get back to the shadow Minister on that. On tobacco fines for under-age sales, it is up to trading standards to make a sensible decision—I emphasise the word “sensible”—about whom it seeks to fine. It depends on the circumstances behind the offence. When it is proxy sales, it is the person who buys the product on behalf of the minor who will be fined, rather than the shopkeeper or the business.
The Chair
Order. For the smooth running of the Committee, it would be helpful—rather than having the table tennis that is going on—if Members could ask questions and the Minister answered them when he winds up, and not on this individual level, if possible.
Dr Johnson
Thank you, Mr Dowd. That concludes my remarks on this group of amendments.
Andrew Gwynne
I am grateful to the shadow Minister for bringing these amendments before the Committee. That allows us to have a genuine debate on the nitty-gritty of the Bill and on the enforcement and implementation of the measures that the Government are bringing forward.
As the shadow Minister outlined, the amendments would create a more lenient penalty regime for the offence of selling tobacco, herbal smoking products or cigarette papers to someone who is under age in England and Wales, Scotland and Northern Ireland. They would create an exception to the maximum penalty a person can face for committing one of these offences—if it is the person’s first offence, that is. They would also establish that someone who admits to committing an offence for the first time would be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale—that is £1,000—or it would instead provide for a discretionary caution in England and Wales, a recorded police warning in Scotland and a conditional caution in Northern Ireland. That is one level lower than the level of fine that someone who commits this offence is liable to under current legislation in England and Wales and Scotland, which is level 4—£2,500 pounds. It is two levels lower than is currently the case in Northern Ireland, which is level 5—£5,000.
I appreciate that the intention of the hon. Member for Sleaford and North Hykeham is to establish greater leniency for first-time offenders, but the amendment is not necessary. My hon. Friend the Member for Cardiff West rightly pointed out that National Trading Standards told the Committee only two days ago, on 7 January, that when enforcing tobacco and vape legislation as it currently stands in England and Wales, it takes an entirely proportionate approach, taking the appropriate action to achieve compliance. Typically, that starts with the issuing of warning letters, which is entirely proportionate for first-time offences. As we heard only two days ago, sending warning letters is often incredibly effective in ensuring future compliance without the need to escalate to harsher penalties such as prosecution and the associated criminal fines, which are subsequently issued by a court on conviction. That proportionate approach is also taken by trading standards officers in Scotland and by district councils in Northern Ireland when enforcing tobacco and vape legislation.
There is absolutely nothing in the Bill or in what we heard from trading standards officers to suggest that anything will change. Trading standards will continue to do the job it is currently doing. It will use the proportionality it is currently using—nothing will change. The approach it takes to decide who to fine will continue. That will be entirely dependent on the case and the evidence in front of trading standards officers, as well as the circumstances. If, as is currently the case for most retailers, it is their first offence, they will get a warning letter. Only if the issue continues will that not be the case. The measures in the Bill do not change one iota how trading standards enforces tobacco control in the four nations of the United Kingdom. That is why it is right that we debate this issue and clarify it not just for the Committee but for the House and those following these proceedings. However, the amendments are not needed, because nothing will change.
As a Government, we have a smoke-free ambition. We take the view that tobacco is uniquely harmful. We want to ensure that the message gets out there loudly and clearly that we are serious about this smoke-free generation policy, so we do not want to weaken the existing penalty regime for tobacco and vape offences. What message would it send out if we watered down the measures as they are today? That would say that we are not taking smoke-free seriously.
I want to make sure that we carry on with the measures in the Bill. Offences must be taken seriously, and it is important that existing consequences are not weakened for first-time offenders or anyone else who commits these offences. We trust trading standards officers—the professionals—to do their job, as they do it day in, day out, week in, week out, and year in, year out, and to apply common sense, proportionality and, ultimately, the law of the land. Therefore, we do not want to remove the ability of the court to issue higher-level fines, where that is viewed as a proportionate penalty. The courts may well view fining certain rogue traders as a proportionate penalty in a particular case. For that reason, I ask the shadow Minister to withdraw the amendment.
Dr Caroline Johnson
The Minister’s response was very interesting. However, could he respond further to a couple of the questions that were asked? First, is it intentional that there is a difference in the level of the fines?
Andrew Gwynne
There are differences across the four nations of the United Kingdom, and those differences are a consequence of the devolution settlement that this Parliament agreed a quarter of a century ago. Of course there are divergences across the jurisdictions, because the four jurisdictions are able to legislate their own penalty regimes and have done so. The measures in the Bill do not change that situation.
We have crafted the Bill after full consultation, and with full agreement and full consent, across the three devolved jurisdictions and the UK Government, which legislates for England in this matter. That is why we do not seek to have a common penalty regime across the UK; we allow the Welsh, the Scots and the Northern Irish to develop their own penalty regimes. However, the law is common across the United Kingdom, and it will be for the trading standards authorities in those jurisdictions to apply the law. It will be for the courts in those jurisdictions to apply the penalty regime that appertains to those jurisdictions.
Dr Johnson
The Minister has somewhat contradicted himself. On the one hand he says that he does not agree with the amendments because he wants to leave the courts free to issue a bigger fine to a rogue trader, and I have sympathy with that argument. But why, in Northern Ireland, should a rogue trader be subject to a higher fine?
Dr Johnson
If Northern Ireland has decided that it wants higher fines and if, as the Minister has said, he wants to take the idea of a smoke-free generation seriously, why, given that the law as it stands in England and Wales is for him to decide—certainly in England, as he is the Minister with responsibility for public health—does he not want the fines in England to be as high as they are in Northern Ireland?
Andrew Gwynne
We are in the bizarre situation where the shadow Minister has gone from wanting to water down the penalties to now wanting to make them higher, in line with Northern Ireland. We have been very clear that we are continuing the existing fine regime for tobacco control in England. We want trading standards officers to continue the proportionality they currently display when they enforce breaches of tobacco control. The Bill changes nothing in the current situation, beyond the fact that there will be a different age of sale that determines whether the law has been broken.
The measures in the Bill have been crafted in a way that suits the desires and the ambitions of the four nations of the United Kingdom, recognising that, in some parts of it, measures are already in place and that, in some parts, the penalties will be different from those in other parts. However, the underlying aim is the same: we expect law enforcement to continue in the way it does, and we expect the situation regarding fines to be as it is set out in current legislation.
Dr Johnson
If I understand the Minister correctly—he can correct me if I am wrong—he is saying that the reason why the fines are different between England, Wales and Northern Ireland is that that is the way they are at the moment.
Dr Johnson
Would he like to see the fines in England rise to the same level as those in Northern Ireland, or is he content with them where they are?
Andrew Gwynne
This is becoming a question and answer session—it is all slightly like an evidence session. That is a decision for future Governments; it is not what we intend in this Bill, which is clear on what the penalty regime will be. I cannot guarantee that some future Government will not decide to alter the penalty regime. That may be a Liberal Democrat Government, a future Labour Government or even a future Conservative Government, when the Conservatives get their act in order, although the differences in the Committee suggest that may be way after the next generation are affected by the Bill to a considerable extent. They will be free to do that, because nothing done by this Parliament can bind future Governments. The Bill sets out the penalty regimes as they are for England, Wales, Scotland and Northern Ireland—and yes, there are differences, because that is devolution.
Dr Johnson
I am grateful to the Minister for his clear answers. The purpose of the amendments is to provoke debate on the proportionality of the punishments in place and to encourage the Minister to provide further guidance on who he expects to be punished—the shopkeeper or the shop—and to consider the levels of penalty across the UK. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 3—Age verification policy—
“(1) A person commits an offence if the person—
(a) carries on a tobacco, herbal smoking product, vaping product or nicotine product business, and
(b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco, herbal smoking product, vaping product or nicotine product business.
(2) Subsection (1) does not apply to premises (“the business premises”) from which—
(a) tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products are, in pursuance of a sale, despatched for delivery to different premises, and
(b) no other tobacco, herbal smoking product, vaping product or nicotine product business is carried on from the business premises.
(3) Before the specified date, an “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, a vaping product or a nicotine product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, vaping product or nicotine product that the customer may be under the age of 25 (or such older age as may be specified in the policy).
(4) After the specified date, an “age verification policy”—
(a) in relation to a tobacco business or herbal smoking product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, herbal smoking product or cigarette papers on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, herbal smoking product or cigarette papers that the customer may have been born on or after 1 January 2009 (or such earlier date as may be specified in the policy);
(b) in relation to a vaping product business or nicotine product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a vaping product, or a nicotine product, on the premises (the “customer”) if it appears to the person selling the product that the customer may be under the age of 25 (or such older age as may be specified in the policy).
(5) In relation to times before the end of 2033, the reference in subsection (4)(a) to the customer being born on or after 1 January 2009 (or such earlier date as may be specified in the policy) has effect as a reference to the customer being under the age of 25 (or such older age as may be specified in the policy).
(6) The appropriate national authority may by regulations amend the age specified in subsection (3) or (4)(b).
(7) The appropriate national authority may publish guidance on matters relating to age verification policies, including, in particular, guidance about—
(a) steps that should be taken to establish a customer's age,
(b) documents that may be shown to the person selling a tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product as evidence of a customer’s age,
(c) training that should be undertaken by the person selling the tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product,
(d) the form and content of notices that should be displayed in the premises,
(e) the form and content of records that should be maintained in relation to an age verification policy.
(8) A person who carries on a tobacco, herbal smoking product, vaping product or nicotine product business must have regard to guidance published under subsection (7) when operating an age verification policy.
(9) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(10) Regulations under subsection (6) are subject to the affirmative resolution procedure.
(11) In this section— “the appropriate national authority” means—
(a) in relation to England, the Secretary of State, and
(b) in relation to Wales, the Welsh Ministers,
“herbal smoking product business” means a business involving the sale of herbal smoking products by retail,
“nicotine product business” means a business involving the sale of nicotine products by retail,
“the specified date” is 1 January 2027,
“tobacco business” means a business involving the sale of tobacco products by retail,
“tobacco, herbal smoking product or vaping product business” means a business which involves any one or more of the following—
(a) a tobacco business,
(b) a herbal smoking product business, or
(c) a vaping product business,
“vaping product business” means a business involving the sale of vaping products by retail.”
This new clause introduces a requirement on businesses to operate an age verification policy covering steps to be taken to establish the age of persons attempting to buy tobacco, herbal smoking, vaping/ nicotine products, or cigarette papers. It reflects provisions in place in Scotland to be amended by the Bill.
Amendment 68, in clause 50, page 25, line 38, at end insert—
“(2A) In section 4A (Sale of nicotine vapour products to persons under 18) insert—
(a) in subsection (5), at end insert “, save if it is a first offence.”
(b) after subsection (5) insert—
“(5A) A person who has admitted guilt of a first offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a recorded police warning.””
This amendment prevents penalties for a first offence pertaining to the sale of nicotine vapour products to persons under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.
Amendment 69, in clause 50, page 26, line 26, at end insert—
“(ba) in subsection (7), at end insert “, save if it is a first offence.”
(bb) after subsection (7) insert—
“(7A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 2 on the standard scale or a recorded police warning.””
This amendment prevents penalties for a first offence pertaining to a failure to operate an age verification policy in Scotland being a fine not beyond level 2 and provides for a discretionary recorded police warning.
Clause 50 stand part.
Clause 68 stand part.
Andrew Gwynne
Amendment 68 would create a more lenient penalty regime for the offence of selling vaping or nicotine products to someone under age in Scotland. It would establish that someone who admits to committing an offence for the first time would be liable on summary conviction to a fine not exceeding level 3 on the standard scale, which is £1,000. That is one level lower than the level of the fine to which someone who commits the offence under the current legislation is liable, which is level 4 and £2,500. They could also be given a recorded police warning. However, the effect is slightly unclear, as the police are not responsible for the enforcement of these offences.
Amendment 69 provides for a recorded police warning as an alternative to a fine up to level 2 for the offence of failure to operate an age verification policy in Scotland. While I appreciate the shadow Minister’s intention to establish greater leniency for first-time offenders, the amendment is not necessary. When enforcing tobacco and vape legislation, trading standards takes a proportionate approach, choosing the appropriate action to achieve compliance. As I said in the previous debate, that typically starts with the issuing of warning letters, which is often entirely effective in achieving compliance without the need to escalate to harsher penalties such as prosecution and the associated criminal fines, which are subsequently issued by a court on conviction.
Furthermore, the introduction of a recorded police warning in amendment 69 would add an extra layer of complexity and burden. It is not the responsibility of the police currently, and indeed it will not be under any measure in this Bill, to enforce tobacco and vape sales legislation. That is the responsibility of trading standards. The Government believe that trading standards is best placed to enforce the legislation, as it currently does.
As I said before, we do not want to weaken the existing penalty regime for either tobacco or vape offences by creating exceptions for first-time offenders. Tobacco and vape offences must be taken seriously, and it is important that the existing consequences are not weakened for first-time offenders or anyone else who commits those offences. We do not want to remove the court’s ability to issue a higher-level fine where that is viewed as an entirely proportionate penalty in the case that is before it, or for anyone who has been convicted of those offences.
New clause 3 would introduce a requirement for businesses selling tobacco, herbal smoking, vaping or nicotine products in England and Wales to operate an age verification policy. That policy would require steps to be taken to establish a customer’s age if they look under the age specified by the clause. The new clause seeks to replicate the existing requirements in Scotland. For the purchase of tobacco, herbal smoking products and cigarette papers, from 1 January 2034, when anyone born on or after 1 January 2009 turns 25, the age verification policy would be updated to reflect the new age of sale for those products. That means that a person selling those products from 2034 onwards would be required to take steps to establish a customer’s age if they looked like they were born on or after 1 January 2009. A person selling vaping and nicotine products would be required to take steps to establish a customer’s age if they looked under 25. That would not change in 2034, as the age of sale for those products will remain 18.
While I welcome the intention to ensure that retailers do not sell potentially harmful products to anyone under age, there are trade-offs to be made. We do not want to place undue burden on or limit the flexibility of retailers. They understand their business and their customers. We do not want to force customers to carry ID by introducing mandatory age verification policies. It is already an offence to sell tobacco and vaping products to anyone under age. The majority of retailers sell tobacco and vapes responsibly—it is important to put that on the record. They follow recommended practice and regularly ask for customers’ ID anyway.
Trading standards will continue to take an intelligence-led, proportionate approach to enforce the law through age-of-sale test purchases. New £200 fixed penalty notices introduced by the Bill will allow trading standards to take quicker enforcement action against rogue retailers. The Bill also provides powers for Ministers in England, Wales and Northern Ireland to introduce a licensing scheme for the retail sale of these products to strengthen enforcement and provide trading standards with further opportunities to clamp down on rogue traders.
Andrew Gwynne
The hon. Lady makes an important point. This is not speculation; we have seen it in action. In the period immediately after the indoor smoking ban, for example, the levels of cardiovascular disease in this country plummeted, so we know that tobacco control has almost immediate beneficial health outcomes for those who are at risk from smoking related illness.
Dr Johnson
I thank the Minister for supporting the view that clause 1 will reduce the number of people who smoke. We can argue about how it will reduce the number of smokers and how many people will stop, but either way we know that there will be a significant reduction in the number of smokers. That will significantly benefit people’s health—particularly young people, thanks to the rolling age process. As I have mentioned, it will benefit the health of children—even those as yet not conceived, never mind born—which is important.
The Minister talked about the effect on the NHS and social care. Smokers are likely to need social care 10 years earlier than their non-smoking counterparts. He gave figures in the billions of pounds for the cost to the NHS. Nearly half a million appointments a year are caused by smoking. If we were able to stop that, not only would we have a healthier and happier population who are not miserably addicted and unwell, but we would be able to concentrate NHS resources on other conditions and perhaps reduce waiting lists and waiting times.
The other key benefit of clause 1 relates the economy. Smokers are more likely to die early, which has an economic effect. They are more likely to take time off work as they experience chronic illness. It is estimated that smoking-related absenteeism costs the economy £5 billion annually. When smokers are hospitalised or have illness, they tend to have longer recovery times and more prolonged periods off work than their non-smoking counterparts.
Nicotine is an addictive substance. Nicotine cravings can be experienced by smokers and, as we heard in our discussion with teachers about children and vaping earlier this week, it can disrupt their work day and lead to lack of concentration and reduced focus.
Turning to the environmental impact, smoking is bad for the environment in several ways. Everywhere outside, we can see cigarette butts lying on the floor; that is pollution. The tobacco industry has an effect on the environment right from the get-go, including through deforestation, use of fossil fuels, and pollution caused by waste disposal. Tobacco cultivation requires large amounts of land and water, and the waste of cigarette butts contributes to hazardous litter that harms the ecosystem. Clause 1 will reduce the amount of tobacco consumed, which will reduce the number of cigarette butts and the amount of deforestation, and will therefore reduce waste.
The cultivation process is of particular concern. Tobacco is cultivated in around 125 countries, particularly in low-income regions and places such as Brazil, India and China. It is resource intensive and requires chemicals and pesticides that endanger the environment and public health. It is often grown through monoculture farming, which reduces biodiversity and increases the need for chemicals. It also uses up vast quantities of water, with some estimates suggesting that one smoker’s habit for 50 years could deplete almost 1,400 cubic metres of water, the equivalent of—
Dr Johnson
The Minister is shaking his head. So what is a reasonable step? Unless one is to ask everyone for ID, the first step will be to decide whether to ask the customer in front of them for ID. That step will be, in essence, that shopkeeper or shop worker assess the person’s age.
Research shows that people are usually off by about eight years in their estimates of people’s ages by face alone. In fact, some research shows that if groups of people are shown a face, and the face that they are shown immediately before was a younger face, they will pick a younger age for that second person. If they are first shown an older face, they will pick an older age for that same person. That suggests that who the customer came in with, or who the previous customer was, may have an effect.
At the moment, we are asked to conduct a Challenge 25 check on a customer, but is it as easy to check the age of a 40 or 41-year-old as it is to check the age of someone under 25, or to tell whether someone is young or relatively young? The evidence seems to suggest that people who are close to 25 are quite good at telling whether people are under or over 25, and people who are close to 41 are apparently better at telling whether people are 40 or 41. It depends on age, and there is also an effect of sex and ethnicity.
Given that the Minister rejects new clause 3 tabled by the hon. Member for City of Durham on a policy on checking ID, he does not want people to have a policy on when to check, he does not want people to check everybody and he just indicated that he does not want people to rely on what they think based on looking at people, what reasonable steps would he expect to take place? The Government need to provide further guidance on that.
In the last Parliament, the hon. Member for York Central (Rachael Maskell) tabled an amendment for a nicotine-free generation. She made the point that we have a rolling age of tobacco products, herbal smoking products and cigarette papers, so why not have one for all nicotine products? We know that nicotine is addictive and that the industry will evolve to try to get people hooked to a different form of nicotine product—that may be less or more harmful than tobacco, but it will still be addictive. Their choices will still be taken away, and they will still be having something that they do not want, which costs them money and potentially makes them poorer as a result. If it were to become apparent later that these items were particularly harmful, and one wished to do another rolling ban, one could end up in a situation where there is an age for sale of alcohol, fireworks and all sorts of other things, and two rolling ages with two different dates—one for tobacco, herbal products and cigarette papers, and another for vaping and other nicotine products such as nicotine pouches.
Many of the amendments to the Conservative Government’s very similar Bill were included by this Government in their Bill, so I wonder whether the Minister could comment on why that particular amendment from a Government Member was not included.
Jack Rankin
Judging from the tone of debate so far, I might be the most sceptical about the principle of clauses 1, 50 and 68, and I appreciate that perhaps I am in the minority. I will talk to what I see as the principle of those clauses and put on the record where I agree with the Minister and the shadow Minister. I will also give international examples that we should bear in mind, particularly in relation to the scope of “tobacco products”, which I think is wrong in these clauses.
We talk about a smoke-free generation. If we were to tweak that slightly and call it a “cigarette-free generation”, I would share the aim of the Government and the previous Government; that is laudable pretty much every which way. The Minister, the shadow Minister and Members from across the Committee have made eloquent contributions about the damage that smoking cigarettes does to people over many years. It clearly should be a priority of a Government of any colour to reduce cigarette smoking significantly. As my hon. Friend the Member for Farnham and Bordon eloquently said, we have made significant progress on that. Yes, there has been legislation, but the change has also been cultural. The legislation has been important. Government Members made the point to me earlier that some of the arguments I have used I might have used against previous legislation that sought to put barriers between people and smoking. But the cultural element that my hon. Friend the Member for Farnham and Bordon talked about is deeply embedded in most young people today.
That is why, despite sharing with the Government the aim of moving to a cigarette-free generation, I do not think I can quite get over the principle of what they are doing to civil liberties in this Bill. We are on the journey to a cigarette-free generation anyway, so why would they need to use—I do not mean this in an incendiary way, although they might take it that way—quite draconian powers? I would say that that is what this is.
Jack Rankin
Very simply, in the future, we will create two tiers of adults. Those people are children today, and it is right that in law we prohibit them from smoking, because they cannot make these responsible decisions, but once someone passes the age of 18, we as a society, generally speaking, accept that if they want to make bad choices, they are their bad choices.
Andrew Gwynne
With rights come responsibilities. People have the responsibility both to look after themselves and to not be overly burdensome on the state. We know that the cost of tobacco is borne hugely by the taxpayer. Does the hon. Member therefore not agree that the Bill seeks a very reasonable balance? The draconian measure would be to ban tobacco full stop. The Bill says that those for whom tobacco is not legal today will never be able to purchase it, but everybody else—those who have the civil liberty to purchase and consume tobacco—can do it till the day they die.
Jack Rankin
I take the Minister’s point that in a society in which we are looked after by our NHS, to which we all contribute, which is free at the point of use and which I am sure all of us across the House support, when someone smokes and creates a burden on society through health or social care, that is the responsibility of us all.
Where I think the difference lies is where we make a moral choice. I have heard different figures for the cost from cigarettes. There are different studies. I have heard numbers as low as £20 billion, but I think that today the Minister used £80 billion when talking about productivity. I think that should be calculated properly and appropriately with evidence, but if that is the cost, that is what we should levy in excise duty, at which point the people who impose that burden are the people paying it. That is where I would go, in principle. I think that if we go beyond that point, we are starting to make a moral decision on behalf of others.
Jack Rankin
I thank the hon. Member for his point. Forgive me if I did say it was easy, but I try to pick my words carefully, and I do not think I did say that. I said they had agency, and that is a different point.
Linked to that is the fact that too often—not just on this issue—we talk about waving our magic wand with legislation to make things illegal. But that is not the way that the world works. I am concerned that there is the potential, with draconian legislation such as this, to exacerbate the illicit trade in tobacco, which will reduce the effectiveness of the regulations and the public health messages.
Andrew Gwynne
At this rate, I am going to start referring to the hon. Gentleman as the hon. Member for the Institute of Economic Affairs—I am sure he has got the briefing. He probably sees that as a compliment, but believe me, it really is not. He talks about illicit trade, but let us talk facts. The last time there was a major piece of tobacco control in this country those same arguments were made, but the illicit trade fell by 25%. There is absolutely no evidence that, with the appropriate enforcement—through His Majesty’s Revenue and Customs, border control and trading standards—there will be any increase in illicit trade as a consequence of the Bill.
Jack Rankin
Does the Minister perhaps not see the difficulty with the fact that we will be out of international lockstep with everybody? My understanding is that both New Zealand and Malaysia introduced a generational ban policy, and both have been repealed.
Jack Rankin
I am well aware that that is the case. Part of the reason for that change in Government—although I do not want to overplay the significance of this singular issue—was that the incoming Government made an argument about the practicalities of enforcing such a law. Frankly, that is a significant concern of mine.
Andrew Gwynne
Before the hon. Member moves off his point about the international picture, I think it is a point of pride that the United Kingdom—all four nations —will be the world leader. We thought we were going to be in second place behind New Zealand. I pity New Zealand, given the predicament it finds itself in, because it was leading the way. However, this Government—building on the actions of the last Government—will be the world leader. I reassure the hon. Member that, as I saw when I was representing the United Kingdom at the G20 Health Ministers summit in Rio de Janeiro late last year, the world is queuing up to look at what we do here. They all want to implement these measures. They wished us the best of luck and want this to work. We are going to make it work and lead the way in the world.
Jack Rankin
I sympathise with what the Minister says about the world wanting us to make it work. I will make an analogy that I think is directly relevant. My expertise before joining this House was in renewables development. The United Kingdom, particularly under this Government, has been quite aggressive on renewables; the Conservative party was quite aggressive on them too, and the new Government have come in, continued those policies and been more aggressive. The Government are clear that they want to be world leaders, but in the past week the United Kingdom was incredibly close to blackouts.
If you are a leader and you do something successfully, whether on renewables or cigarettes, you may well lead the world forward, and the Minister is right to say that other countries would want to follow us on this issue. However, there is an under-spoken truth about being a leader, and perhaps being first. Clearly, the Minister is passionate about the issue, as is clear in not just what he says, but how he says it; he wants the United Kingdom to lead on this, and I am sure he will be as forceful as possible. But a leader is also a warning if they do not succeed. If we make moves that are too draconian, too quick or over-eager on energy, and we get it wrong, that could mean blackouts. If that happens because we have taken an aggressive approach, no one will follow us. We will be a warning. For leaders, it goes both ways.
Andrew Gwynne
I am sorry to prolong the debate, Mr Dowd, but the hon. Gentleman should believe in his country with a bit more passion. The patriotic case for leading the way on tobacco control is clear, and the world has been looking for some time at the United Kingdom and the measures that we have brought in over the past two decades. They have been incremental steps to get us to the point where we are absolutely determined, and where it is a viable proposition, that this country will be smoke-free. The hon. Gentleman should believe in this country a bit more, back the Bill and show the world that the real freedom is freedom from addiction to tobacco.
Jack Rankin
I thank the Minister for his passionate remarks, which I am obviously not going to take lying down. I agree wholeheartedly that the United Kingdom of Great Britain and Northern Ireland is the greatest country in the world, but before I try to make some progress, I might humbly suggest to him that a lot of that greatness may be based on the primacy of the individual and our rights to get on with our lives.
Andrew Gwynne
Thank you, Mr Dowd. At least, in taking your deep breath, you will not be passive smoking—it is a healthier deep breath than it might otherwise be. I thank all hon. Members for their input into the debate on these amendments and new clauses, as well as clause stand part. I will try to address the points that have been made.
First, I will clarify my previous contribution. The police do of course enforce the law on smoking in cars with children; we were talking about the retail side of things, and the police do not have a role in enforcement in retail—I just wanted to make that clarification.
Dr Johnson
Will the Minister therefore clarify something for the record or for anyone listening to proceedings? If one is suspicious that a particular retailer is selling tobacco products to children or, in the fullness of time, to those who should not be receiving it, to whom do they report it?
Andrew Gwynne
These are matters for trading standards. Trading standards is the enforcement authority. If people have a concern today about a retailer in their area that is potentially selling tobacco or alcohol products to people who are under age, they should report it to trading standards. Trading standards will investigate, and may even do test purchasing as one of the tools at its disposal. As we discussed previously, should that test purchase unfortunately show that someone was sold a particular product under the legal age, appropriate action can be taken within the framework of law, and that will continue to be the case under the Bill. For a first offence, that might be a written letter, or it might be amplified through the court process, depending on the severity and the particular situation.
I want to dwell briefly on the comments of the hon. Member for Farnham and Bordon. He is right that many young people now do not smoke; certainly, they do not smoke in the numbers they did when I was a young lad, when my peers took up smoking. That is a good thing, and as a consequence of the past two decades of tobacco control measures, we have got to the place we are in, but let us not be complacent. The hon. Member for Windsor is keen on international comparisons, and we have seen increases in youth smoking in the USA and Australia because there has not necessarily been the concerted tobacco control that we want to see. I do not want to see smoking prevalence increase in the United Kingdom as an unintended consequence of saying, “Well, we have sorted it with the kids. It’s all right.”
I had the privilege of being interviewed by LADbible. I did not even know what LADbible was, but now I am aware, because I ended up with not one story, but a set of four stories off the back of this Bill. It is incredibly keen on reporting on this Bill—no doubt it is listening in to the proceedings. One of the questions I was asked was whether I was concerned that young people are again being bombarded with images on social media of film stars and influencers—whatever the trendy term is for the great and the good these days—smoking. As in the images that we used to see in magazines and newspapers, it looks sexy again, and I am concerned about that. My answer was that it is often best for politicians not to give advice to kids, because they think, “Yeah, whatever—you would say that,” but, as a father and a grandfather, my advice to the next generation is that there is nothing sexy about having yellow fingertips. There is nothing sexy about having a cough. There is nothing sexy about clothes stinking. There is nothing sexy about bad breath.
Cigarettes and tobacco are not sexy, but we cannot be complacent that we have fixed the problem. That is why we need to stop that conveyor belt so that the tobacco industry of today knows that the customer base of today is it. We are coming after the industry, because I want to beat the addiction that the hon. Member for Windsor talks about. I want to ensure that those millions of smokers in the United Kingdom, whether in Scotland, Wales, Northern Ireland or England, have every opportunity to give up, to break that addiction and to be free. That is real liberty.
Dr Johnson
In the impact assessment, it says that 95% of people cannot give up through willpower alone. Will the Minister congratulate my right hon. Friend the Member for Basildon and Billericay (Mr Holden), who told me that over Christmas he has managed to give up smoking using willpower alone? This is the first time that he has not been smoking.
Andrew Gwynne
I do not want to tempt fate or for the right hon. Gentleman to end up smoking again, but that is great. Anybody who manages to break free of that addiction and to do so on their own—through willpower alone—is incredibly tough. That is why the previous Government committed to funding for smoking cessation services and introduced things such as swap to stop. This Government are continuing that investment into stop smoking services, and we are determined that anybody who wants to give up will have everything that we can throw at them to help them off their addiction. However, for the next generation, that is it—we have stopped that conveyor belt, because we know that the tobacco industry will target them wherever we put the borders. The measures in clause 1 are so important.
The shadow Minister asked why 2009. I will let the cat out of the bag: not everything that the right hon. Member for Richmond and Northallerton (Rishi Sunak) did was bad. The previous Tobacco and Vapes Bill showed real leadership by him. Announcing it at the Conservative party conference did not just take Conservatives such as the hon. Member for Windsor by surprise; it took a lot of us by surprise, because we had been calling for precisely the New Zealand model after Javed Khan had reported back. We think that 2009 is appropriate.
I get the urgency of this issue, and I share the urgency outlined by the shadow Minister to bring the date forward, but we have to be real here. As the hon. Member for South Northamptonshire said, we want these measures to be workable and we want this Bill to be a success. The lead-in time is slightly shortened, because the Bill was parked due to the general election and had to be reintroduced, but it gives us an appropriate lead-in time for these big changes, particularly in our engagement with the retail sector and in getting some of these measures right for the retail sector. We are working with the sector on guidance and on how we allay some of the concerns that have rightly been raised in the course of this debate. Subject to Royal Assent, the measures in the Bill will come into force on 1 January 2027. That is an appropriate, proportionate and measured way of reaching our ambition of getting to smoke-free and working with industry to get us there. That is why we have gone for 2009.
The shadow Minister mentioned bongs and other paraphernalia. This is an issue that really gets on my nerves, because it is possible to walk down Strutton Ground, the street just at the side of the Department of Health and Social Care, and see vape shops there that not only have all the colourful packages of vapes, but what I consider to be drug paraphernalia, in their windows. That is the result of a loophole. Under drugs legislation, which of course is the remit of the Home Office, such paraphernalia can be displayed by shops so long as it is not sold for the use of drugs consumption.
We all know what bongs are for, and I have raised this issue with the Minister for Policing, Fire and Crime Prevention, who shares my view that we need to crack down on it. I asked my officials whether we could end up with a perverse situation, whereby the measures in the Bill mean that, subject to consultation, the display of vapes—all those colourful packages—would be replaced by vapes in plain packages and in cabinets locked away, not to be seen and with the shop window bare of them, but instead the shop window could be full of bongs. That would be a real perversity, where it would not be possible—rightly—to see tobacco or vape products in the windows of these establishments, but it would be possible to see drugs paraphernalia in them instead.
My officials assure me that the only reason that such shops can sell bongs, rather than display them, is because bongs can also be used to smoke tobacco products. That is the loophole. Given that we are bringing within the scope of the Bill a number of things that can be used to smoke tobacco and banning their display, that means—thank God—that the measures in the Bill will get rid of that awful loophole. That will mean that shops around the country, including shops just around the corner from the Department of Health and Social Care, will no longer be able to show drugs paraphernalia in their windows.
Dr Caroline Johnson
The Minister is making a very powerful and impassioned speech; I get the impression that he finds this situation frustrating. I wonder whether he will put a clause in the Bill that specifies bongs and other such paraphernalia, because, although a bong may be a product for using tobacco with, it is not a tobacco product, is it? So which clause will ban them?
Andrew Gwynne
We believe that a bong is a tobacco product, because the only reason shops are able to treat bongs as not being drugs paraphernalia and therefore to sell them is for the consumption of tobacco. There are all the other things that are addressed in the Bill, such as pipes and so on, and bongs are no different. Therefore, we will make sure that the loophole that currently exists when it comes to drugs paraphernalia is closed.
Bongs are not explicitly dealt with in the Bill, but the hon. Lady raised them as an issue and they are a real bugbear of mine. As I am sure she can tell, dealing with them is something that I have been championing, both with officials in the Department of Health and Social Care and with my colleague the police Minister. I am assured—indeed, I am reassured—that a consequence of the measures in the Bill will be that bongs will no longer be able to be displayed for sale in shops.
Dr Johnson
The Minister is making a very impassioned point and I am grateful to him for doing so. Given his great passion for this area and the fact that, as the Minister for Public Health, he has his hands on the levers of power, so it is up to him—to govern is to choose—why has he not chosen to put in a specific mention of these products? It is up to him to do so if he wishes.
Andrew Gwynne
Because we do not need to. The measures in the Bill cover these bongs. For example, although it is not a direct tobacco product, clause 45 gives Ministers the power to cover devices used to consume tobacco, which is the power to say, “Well, you’re selling these bongs. We know it’s for drugs, but you’re selling these bongs on the basis that it is to consume tobacco.” Therefore, they are no longer covered because clause 45 gives Ministers the power to do that.
I will try to rattle through because I know Members are very keen to get to other parts of the United Kingdom for which transport is not easily available. Apologies if I miss anything. I will try not to take interventions as a consequence—I hope Members will forgive me for that. On whether the rules apply to snuff in Parliament, I do not know the answer off the top of my head; perhaps I should. I have been around here for such a long time that I remember the implementation of the indoor smoking ban. My recollection is that Parliament was not covered because it is a royal palace, and we got a bit of flak for that. Rightly, the parliamentary authorities decided that they would apply the law within the Palace of Westminster, even though the law did not apply to it, and that is why the Smoking Room is smoke-free. It may well be that snuff goes the same way, but I imagine those will be matters for the House authorities.
On reasonable steps and what they are, retailers may check other forms of ID, not just the forms outlined in the Bill—for example, that may include veterans ID cards. We are very clear that other forms of ID can be shown, as long as the retailer can show that they have taken all reasonable steps to avoid selling to a person under age, and that is the important thing.
On tourists and the potential for the President of the United States not to be able to attend a G7 if he wants to have a cigarette, the duty-free rules are not changing. Those coming into Great Britain from outside the UK are allowed to bring an amount of tobacco for personal use, which is 200 cigarettes or 250 g of tobacco, although there is no personal allowance for those under 17. The President of the USA can bring 200 cigarettes with him to a future G7—that is not an issue.
On enforceability, as I have said, trading standards is responsible for enforcing tobacco and vape sales, and district councils are responsible for regulations at a local level in England, Wales and Scotland. In Northern Ireland, Border Force and HMRC also have an important role to stamp out opportunities for criminals in the illicit tobacco trade. We are working closely with retail associations and will develop guidance with them to support the successful implementation of the enforcement measures in the Bill. That is a really important point, and it leads into the point made by the shadow Minister on why we are not bringing the measures of the Bill further forward. We want that lead-in time to get these measures right so that retailers are clear on both what those measures are and how we can work with them to get it right.
The Bill introduces a new defence in England, Wales and Northern Ireland for retailers accused of selling to someone under age, if the retailer can prove that they were shown an identity document that shows the customer was above the age of sale. The Bill sets that out, but as I have said, other forms of ID are not unreasonable.
On protecting retail staff from abuse, we are working really closely with retailers and will use the long lead-in time to support them in preparing for and implementing these changes. We will not stand for violence and abuse against any shop workers. Everybody has the right to feel safe on the job and this Government will introduce a new offence of assaulting a retail worker to protect the hard-working and dedicated staff who work in the stores.
The Chair
Order. Given the time, if the Whip wants to move the adjournment, I have decided to permit returning to this debate at 9.25 am on Tuesday, if the Minister wishes.
Andrew Gwynne
Mr Dowd, I think that is very sensible. Certainly, in other Bill Committees that I have been on in the near two decades that I have been here, I have seen Ministers be cut off at the time of interruption, to continue their oration when the Committee next meets. That is partly why I wanted to sit down at the time agreed by the usual channels.
Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)
Tobacco and Vapes Bill (First sitting)
Andrew Gwynne ExcerptsTuesday 7th January 2025
(1 year, 7 months ago)
Public Bill CommitteesRead Full debate Tobacco and Vapes Act 2026 View all Tobacco and Vapes Act 2026 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 January 2025 - (7 Jan 2025)
The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)
Q
Professor Sir Chris Whitty: May I take one impact that extends my previous points about outdoor smoking, and then maybe pass on to Sir Gregor and Sir Frank? For outdoor smoking, the previous Bill—the very good Bill put forward by the previous Government—did not have anything that addressed the needs of current smokers. It also did not address the needs of people exposed to smoke, despite the fact that, like over 88% of the population, they are not smokers and many of them are medically vulnerable.
The Bill allows the Government to take powers to prevent outdoor smoking, first with additional public consultation and then additional measures in Parliament. Ministers—you, Minister, have demonstrated this in the House of Commons—have indicated the areas where they intend to use these powers to reduce the risks of passive smoking. These are the areas of the greatest vulnerability: around hospitals, where some of the most medically vulnerable are highly concentrated; and around children’s playgrounds, where children are—I think everybody who does not have shares in cigarette companies would agree that exposing children to second-hand smoke is an unacceptable thing to do. That is one area where the Bill has gone further than the previous one. Maybe Sir Frank might want to add to that.
Sir Francis Atherton: In Wales, we have had smoke-free hospitals, schools and play areas since 2021, under our earlier public health legislation, and it is completely non-controversial. There are clearly issues around implementation and enforcement, particularly around hospitals, but if you go now to schools and hospitals there is no controversy whatever. So that will not make a huge amount of difference in Wales.
The one thing that will make a difference, I think, is aligning the vaping legislation with the smoking legislation. I say that because, going back to the earliest question, vape use among young people in Wales has shot up over recent years—8% of 11 to 16-year-olds regularly vape, up from 5% and a bit in 2021. It has absolutely shot up. Bringing together vaping and tobacco legislation in terms of vape-free and smoke-free places is a really important thing and one for which I have been arguing for quite some time.
Andrew Gwynne
Q
Professor Sir Gregor Ian Smith: Perhaps I can begin this answer; my colleagues may then want to come in. Alignment in this respect is really important, partly because of the clarity of message that exists to the public around about what is legally acceptable in relation to smoking and to vaping. Alignment across tobacco smoking and vape use is similarly important across the four nations.
Public health messaging is incredibly important. Having a consistent message across our four nations helps to ensure that the message is much more clearly understood and adhered to by the public. I welcome the attempts by Ministers to ensure that alignment exists within the Bill, so that as we go forward we give protection to those who do not smoke in the way that we are planning on doing with the Bill as it proceeds.
One of the most important aspects is to make sure that, although in Scotland, for instance, legislation prevents smoking within 15 metres of the likes of public places such as outside a hospital, we bring that much more closely in line with where the Welsh position is—so to the whole of the hospital grounds. Extending it to protect, as Sir Chris has said, more vulnerable places such as play parks is something I would certainly welcome in Scotland. We should do that in step across the four nations. I again emphasise that public messaging is incredibly important in making sure that we get the adherence we seek.
Andrew Gwynne
Q
Professor Sir Chris Whitty: I have already given my view that, although I have a lot of sympathy for choice and freedom arguments in many situations, tobacco addiction and second-hand smoking are not among those.
Sir Francis Atherton: If anything, choice is undermined by the addictive nature of nicotine. It is incredibly addictive. We know that now; we have known it for many years, actually. The tobacco industry has known it for many years, which is why the industry, through vaping and other means, is quite keen to have the next generation of people in our countries addicted to nicotine. Choice is completely undermined and taken away by the addictive nature of the product being marketed.
Professor Sir Gregor Ian Smith: Nicotine addiction is horrific. Nearly 9,000 people a year still die in Scotland as a result of tobacco-related health issues. Two thirds of people who begin smoking are potentially at risk of dying as a consequence of their addiction. We know that the industry targets both the younger age spectrum and vulnerable groups to sustain their industry.
If you have ever spoken to a patient with a serious tobacco-related illness such as chronic obstructive pulmonary disease, who is now suffering from the consequences of that—the limited ability to live their life—and the addictive nature of the disease, you soon begin to learn that they are filled with nothing but regret and guilt for the part that their addiction has played in the development of the disease. The stigma associated with tobacco-related disease is quite terrible for those who experience it. The basis of that is this lack of choice that they have developed as a consequence of the addictive nature of the nicotine products.
Professor Sir Chris Whitty: If I could just add a specific example from—
The Chair
Sorry, Sir Chris, but before we go further, I am trying to establish whether Sir Michael McBride has contact with us yet. If you can speak, Sir Michael, then we will know whether we have connection. It is as simple as that, really.
Professor Sir Michael McBride: Yes. The problem is not on my side, so I asked that you unlock me. I think I have now been unlocked, so perhaps I can speak.
The Chair
We will now hear evidence from Hazel Cheeseman, chief executive of Action on Smoking and Health; Sheila Duffy, chief executive of ASH Scotland; Suzanne Cass, chief executive of ASH Wales; and Naomi Thompson, health improvement manager at Cancer Focus Northern Ireland. We have until 10.55 am for this panel. I call the first Member to ask a question—the Minister.
Andrew Gwynne
Q
Hazel Cheeseman: We are all delighted to see this Bill return, and in such a strong form. There is complete consensus across the ASHs of the four nations that this is a Bill that is needed, wanted and workable.
As the chief medical officer said in the previous session, the improvements in this Bill are that there are more provisions that will assist in reducing smoking among people who are already smoking and in protecting those exposed to second-hand smoke. It also creates a comprehensive set of regulations around all tobacco and nicotine products and provides us with that future-proof—the flexibility to respond to evidence as it emerges and changes and to the market as it emerges and changes over time.
The Bill is enormously welcome for its comprehensiveness and robustness, and therefore for the opportunity to significantly reduce the uptake of smoking among the next generation and to aid people in quitting. The Minister will not mind me saying that I think there is more that the Government will need to do to accelerate that progress, in terms of investing in support for those who are already smoking and ensuring that we have the right strategy in place for that, but the Bill is a really good step in the right direction.
Andrew Gwynne
Q
Sheila Duffy: We have seen that tobacco control measures work. We have seen that they have reduced adult smoking rates over time. The points made by the chief medical officers were well made: we are looking to the generation growing up now in the UK; we are looking to protect them from addictions that so many now regret and that are claiming lives unnecessarily.
Suzanne Cass: I would add that tobacco control policies that are put in place are popular, and are really welcomed among members of the public; they are also welcomed among people who smoke. There is a huge surge of public support for tobacco control policies, and that grows—it does not diminish—as we introduce new policies; it grows, and that public support increases.
Naomi Thompson: In Northern Ireland, we are working towards a smoke-free Northern Ireland by 2035, and the reality is that tobacco control over the past 10 years has managed to bring things down to a stage where 2035 has potential. That is why tobacco control needs to continue. A Bill like this is just brilliant to keep that focus. If we can prevent people from starting, that will be absolutely key to making Northern Ireland, certainly, smoke-free by then.
Andrew Gwynne
Q
Suzanne Cass: As you know, ASH Wales and the Welsh Government have been at the forefront of implementing smoke-free spaces. We campaigned for smoke-free playgrounds and smoke-free school gates, both on a voluntary basis. Luckily, the foresight of the Welsh Government has made that provision legislation when it comes to hospital grounds, playgrounds, sports grounds, mental health units and a raft of other smoke- free spaces. We are obviously delighted that the Welsh Government has implemented that legislation.
The legislation has made a huge difference, in that it has allowed a platform for communication—communicating the message that it is not okay to smoke around children. There is a massive amount of public support for that messaging, and we have had the opportunity to communicate it. When it comes to smoke-free hospital grounds, a lot of us are looking at that legislation and the possibility of implementing it.
We have obviously had the legislation in place in Wales since 2021, and what we would say on the lessons learned is that there has to be a package when it comes to implementation. We cannot just legislate; we need to be looking at the support that is in hospitals for smokers to quit, we need to have trained staff and we need to have enforcement on the ground. There needs to be a whole package that comes with that legislation. That is the enormous lesson that we learned.
We implemented that legislation in 2021—in the midst of covid, which was tricky—but we have had problems around enforcement and problems around compliance. It is a very different kind of tobacco policy from that in the other smoke-free spaces. When it comes to the other smoke-free places—playgrounds, sports grounds and other areas like that—there is a lot of compliance, but when it comes to hospital grounds, you have to do a bit more of the legwork. But it is well worth it, because what comes with that is on-site hospital support for stopping smoking, and the message to everybody coming on to that site that smoking is not okay and that there is support available if you want to quit. So it comes with a whole raft of measures that support that smoke-free message.
The Chair
I call Caroline Johnson—apologies; I should have called you before the Minister.
Dr Johnson
Q
Dr Ian Walker: First, thank you very much for the opportunity to be here. I start by thanking Parliament for boldly introducing this Bill; it is genuinely world leading. I have spoken to organisations across the world that are envious of the position we find ourselves in. That is a very important question, and the answer is absolutely yes—I think this Bill will be very important in reducing the number of cancers caused by smoking tobacco. We know that there is no bigger thing we could do to actually influence that going forward for the next generation and generations thereafter.
As you have heard this morning, we know that we still have 6 million people smoking across the UK, and we know that we can expect hundreds of thousands of cases of cancer caused by smoking over the term of the next Parliament. As we move towards a truly smoke-free generation over the next 20, 30 or 40 years, we will absolutely expect to see the number of cancers caused by smoking—and, alongside that, the number of other illnesses associated with smoking—reduce.
Andrew Gwynne
Q
Dr Ian Walker: To start with smoking and cancer, the links between passive smoking and cancer, particularly lung cancer, are very clear. It is fair to say that there is less evidence around different scenarios that you might predict through this Bill, such as different outdoor environments and so on, but that is more because those studies have not necessarily been done. It is an important point to make that there is an absence of evidence, rather than evidence of absence.
You heard from the CMO of England this morning that if you can smell cigarette smoke, you are exposed to it. The direct risk, then, is linked to how long you are exposed to it, how concentrated the environment is, how close you are to it and so on. Nevertheless, passive smoking is harmful—not just for cancer, but for vulnerable people with many other conditions as well—so we are very much supportive of the introduction of smoke-free places and the ability to restrict people smoking in particular outdoor spaces.
Sarah Sleet: When it comes to people with lung conditions, second-hand smoke is incredibly important; it is a well-known, severe risk factor for people with lung conditions. About one in five of us in the UK will experience a lung condition—there are around 7 million people with asthma and about 1.6 million people living with chronic obstructive pulmonary disease. Those are two major conditions that are profoundly affected by second-hand smoking, and are clear risk factors in terms of deaths from asthma and people being hospitalised with exacerbations, so it is incredibly important that we deal with the issue of second-hand smoking. People said earlier that there is no choice about second-hand smoking, and yet it profoundly affects those with lung conditions. It is incredibly important that we ensure that we protect those vulnerable people as far as possible.
When it comes to the discussion about how far we should go in terms of smoke-free and vape-free places, we would consider going further than what has been suggested already and looking at other areas to make smoke-free. I know there has been discussion about hospitality and trying to balance the potential economic impact that has been talked about if we make the outside of hospitality places smoke-free. However, we think, given the balance between the public health impact and what we have seen with smoke-free indoor spaces and its impact on business, we could go further and should go further, there.
Andrew Gwynne
Q
Sarah Sleet: People with asthma and lung conditions are in the middle, where they are affected by both smoking and vaping. It is really important to get the balance right. Smoking is terrible—it is terrible for people with lung conditions—and we need to make sure we can drive down smoking rates as much as possible.
Vaping can play a part in helping with smoking cessation, but it should only be used for smoking cessation. People who have never smoked, and definitely children, should not be taking up vaping. We see vaping as a staging post to being completely nicotine-free. It is important to get the balance right between making vaping available for those who need smoking cessation and not encouraging people to try vaping or to keep vaping longer than they need to.
The legislation is good in allowing that flexibility for adjusting over time, as we get more evidence in. It is really important to put evaluation in place and make sure that robust evaluation does flow through over time, so we can adjust and respond to it. Traditionally—certainly in respiratory diseases—there has generally not been enough research and evaluation, so we need to correct that now.
Dr Ian Walker: First, I want to confirm that we are very much supportive of taking those powers. I think one of the real strengths of the Bill is the ability to adjust, moderate and titrate those powers and the actions that we take over time, not just as new evidence emerges, but as the tobacco industry and new products may emerge to try to circumvent the regulation that is in place. That is a really important part of the Bill.
I think the crux of the question was about what is important to consider through the consultation. From our perspective, it is important to get a balanced view on what the right actions are in this area. Of course we all agree that we want to limit, reduce and stop access for children and young people and to limit the appeal to never-smokers, while balancing that carefully against making cessation tools available to people who are trying to quit. It is important not to forget the 6 million people who are currently smokers and the long-term health implications ahead of them. We need a balance so that it is as easy as possible for those people to quit when they have chosen to do so. There will be many balancing features and balancing points of evidence that will be really important through the consultation in coming to the right outcome.
Andrew Gwynne
Q
Dr Ian Walker: Critical. Without a doubt, there is no single bigger action that you could take to reduce the cancer burden on the country. The cancer burden sits at a very personal, individual level for people getting their own diagnosis; it sits at a family level and at a friend level. It also sits at an economic level for the country and at an NHS level, in terms of the burden that smoking-related illnesses cause for the NHS.
From my perspective, this is a world-leading piece of legislation. It is absolutely an opportunity for generational change and a long-term legacy that will see our children and grandchildren never able to legally buy tobacco in the UK and never exposed to the harms that that would cause them.
Sadik Al-Hassan
Q
Sarah Sleet: As I said earlier, the research evidence around vaping harms is currently very poor. There has not been enough. It takes a long time to build up evidence of things that are generally very progressive rather than having an immediate impact, so we will have to wait. We need to put that in place, and we are going to have to wait to get that evidence back.
We have had anecdotal reports from our beneficiaries and those who contact the organisation about places—particularly in closed spaces, but sometimes outside—where there is a concentration of vaping. It is that classic thing where you go through a door and suddenly everybody around you is vaping immediately outside it. We get reports that that exacerbates people’s asthma and sometimes their COPD, but they are anecdotal. We really need the evidence base to support what is happening.
Dr Ian Walker: The only thing that I would add specifically from a cancer perspective is that although there is very little long-term evidence, because the products have not been around long enough and the cumulative effects have not been seen yet, what we do know, based on the current evidence, is that vapes are far less harmful than cigarettes. You heard the advice earlier that if you smoke it is better to vape or take other nicotine products, but if you do not smoke you should not vape, because we do not know yet what the long-term effects will be. In particular, we are very light on evidence on what the impact of vaping will be on bystanders.