Tobacco and Related Products Regulations 2016
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Lord Hunt of Kings Heath (Lab)
My Lords, this has been a great debate and I am grateful to the noble Viscount, Lord Ridley, for once again bringing our attention to this matter. It is a pity that we are in Grand Committee and not in the Chamber, but I can understand the reason for that. I should declare my presidency of the Royal Society for Public Health, which has of course produced documentary evidence on electronic cigarettes.
It is tempting to debate Europe—and I look forward to the view of the noble Lord, Lord Prior, on that, as it clearly seems to be part of our debate—and it looks as if we have quite a long time to wait this evening. I am in favour of remaining in the EU, but I would remark that this directive does not seem to show much evidence of the Prime Minister’s claim to have negotiated a new concordat and relationship with the EU.
I am very doubtful about the argument that, if we were outside the EU, we would not be doing this. The fact is—I speak as president of the RSPH—that some elements in the public health world were prejudiced from the start against e-cigarettes. That clearly influenced the Department of Health and is the reason why it has taken such a mealy-mouthed approach to e-cigarettes, which is simply not based on evidence at all. It is interesting that, if you look at some of the papers produced by public health bodies, there are some weaselly words around this issue: “We still don’t know and we need to be very careful”. They are really trying to find a legitimisation for the initial very negative reaction, which I am afraid has laid the foundations for where we are today, because this is bonkers. It is simply madness. Here we have a product which is clearly of benefit to smokers and there is no evidence whatever that it will be used by non-smokers, which is where all this nonsense has come from. Why would a non-smoker take up these e-cigarettes?
The noble Lord, Lord Stoddart, and I have debated tobacco issues for many years, and he will know that I have been strongly in favour of very strong legislation. I moved the amendment to ban the smoking of tobacco in cars with children only a year or two ago, so I am not at all worried about being very tough on smoking, but e-cigarettes are completely different. I do not understand why they are part of the directive at all or classified in the same way.
The evidence is abundantly clear that e-cigarettes are almost wholly beneficial. My concern is that it is also clear that the public are, at the moment, confused. RSPH research revealed that 90% of the public still regard nicotine itself as harmful. Going back to September 2015, Public Health England issued a joint statement with other UK health organisations, saying:
“And yet, millions of smokers have the impression that e-cigarettes are at least as harmful as tobacco”.
It seems to me that one of the real adverse consequences of this is that, as it becomes known that there are going to be major restrictions on the promotion of e-cigarettes, all that will do is emphasise the belief that they are harmful. I have seen the RIA, but I could not see there any analysis of the impact that that could have on reducing the uptake of e-cigarettes among smokers. However, it is a very important point.
I want to put three points to the Minister. First, the noble Viscount, Lord Ridley, asked him what would happen to the investment in smoking cessation services. My understanding is that, as a result of the Government’s cut to the grant to local authorities for public health, smoking cessation services investment is going down. Will the Minister confirm that and say what he is doing to reverse the pattern?
The second point is that, clearly, this directive will go through, because there is no Motion to stop it. What monitoring will take place, and how soon will the Government undertake an assessment of the impact? Assuming that we are still in the EU, is the Minister prepared to go back to the EU if evidence becomes clear that this is having an adverse impact on smokers giving up smoking? I hope he can give some reassurance on that.
The third issue relates to enforcement. In the statutory instrument, regulation 53 makes it clear that:
“It is the duty of each weights and measures authority in Great Britain and each district council in Northern Ireland to enforce these Regulations within their area”.
What guidance is going to be given to the weights and measures authorities about taking a light-handed approach to enforcement?
It is quite clear that these provisions are not supported. It is pretty obvious that the Government themselves do not support them because of the amelioration that they have attempted in transposing the directive. At the very least, one could expect a message to be given to weights and measures authorities that the Government expect enforcement to be proportionate, minimalist and certainly light touch.
The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)
My Lords, I do not know whether to thank my noble friend Lord Ridley for bringing this debate here today or not. The arguments that have been put have been very powerful and it would be obtuse of me to say otherwise.
Perhaps I can start by going back to the opening words of my noble friend Lord Ridley, who said that there are three ways of trying to influence the behaviour of people doing things that do harm: you can punish them; you can hector them; or you can try to offer safer alternatives. In the article he wrote in the Times some time ago, he used the example of methadone as something that is not desirable in itself but is used as a means of treating people with heroin addiction.
In the case of tobacco we have tried all three things. We have penalised people through taxation, we have hectored them incessantly for years, and having tried nicotine replacement therapies, in a sense vaping is a way of encouraging people to use something that is considerably less harmful than smoking. Actually, most people would agree that we have been hugely successful in reducing the consumption of tobacco in England. I was asked for a statement of the Government’s view on vaping; I think I can say unequivocally that we are in favour of it as a means for people to come off smoking cigarettes. There is absolutely no question about that. The reports produced by Public Health England and most recently and very powerfully by the Royal College of Physicians entirely endorse that view. The president of the Royal College of Physicians, Professor Jane Dacre, said in response to the report:
“With careful management and proportionate regulation, harm reduction provides an opportunity to improve the lives of millions of people”.
I pick that out because she used the words “proportionate regulation”, and that is really what we are discussing today. It is not about whether we are in favour of vaping or not, it is about what kind of regulation should be around it.
On the European element, given that the noble Lord, Lord Hunt, could not resist throwing that in as one of his questions, I am not sure whether if we had been left to our own devices we might not have come out with something far worse several years ago. The noble Lord was kind enough to mention the original views of PHE and the MHRA, so we may well have brought in a licensing system or even have banned them altogether. I am not sure that one can lay this at the door of Brussels or indeed our own Government. We have been far too quick to resort to regulation in many areas and as a rule I am wholly in sympathy with less regulation. That is the best place to start. What we are discussing today is whether this regulation is proportionate, what damage it could do or what the directive’s unintended consequences might be.
I should just mention while I have it to hand, to put the concerns of my noble friend Lord Brabazon of Tara to rest, that the concentration which he is taking it at will not be affected. It will not have to be licensed by the MHRA, but sadly I cannot say the same to my noble friend Lord Cathcart, who at 2.4% is higher than 2%, which is the cut-off point for licensing. But I shall come to that in more detail in a minute, if I can.
Perhaps I may pick up on a few of the fears that noble Lords have expressed about the directive and see whether I can allay their minds today. It has been said that the directive will ban flavourings in e-liquids. I should make it clear that it will not do so. What it does say is that flavourings which pose a risk to human health should not be used; we could probably all agree that that is a sensible rule. There is an additive called diacetyl, which I think is also used in the making of popcorn, and there are other flavourings where there is some evidence that airways can be inflamed. The noble Lord appears to be questioning that, but I think the RCP report cites evidence that some flavourings can cause damage.
It has also been said that the directive will ban all advertising and prevent shop owners communicating with their customers. It does not do that. The new rules do not prevent information being provided to customers either online or in physical retail outlets, nor does it ban online forums, independently compiled reviews or blogs. Some advertising will also be allowed, such as point-of-sale, billboards and leaflets, subject to the rules set out in existing advertising codes to ensure that these do not appeal to people aged under 18 or non-users. There will therefore remain a wide range of information on the products available to smokers who wish to buy these products.
Lord Stoddart of Swindon
I take it that they will not be allowed to advertise on television—am I right about that? I see television adverts from the pharmaceutical companies for Nicorette and that sort of thing, so why on earth should these products be treated differently?
Lord Prior of Brampton
What the directive is trying to do, though it may not be doing it well, is to differentiate between smokers and non-smokers, particularly non-smokers under the age of 18. It wants to encourage information being given to smokers but does not want to risk the unintended consequence of normalizing vaping so that people who do not smoke start doing so. That is the purpose behind it.
The noble Viscount, Lord Ridley, asked how much money would be spent on public information. If there is evidence that the impact on advertising is such that smokers are not getting the right information about switching to e-cigarettes or vaping then there will be a strong case for a public information campaign to correct that, but we will have to wait and see what impact the directive has. It has also been said that the directive will ban certain types of products and make those that are available less effective. No current type of e-cigarette will be banned. In addition, it is worth noting that this is a fast-growing, highly disruptive and innovative market—I read somewhere that Goldman Sachs has put vaping down as one of the eight most disruptive products being marketed worldwide at the moment. Although we do not know how many products there are in this new and dynamic market, there may be as many as 25,000. Officials are persuaded that after this directive comes through there will still be many products on the market.
Concerns have been raised about the cost of notification for products that are below 20 milligrams per millilitre. The MHRA has announced that the fee for notification will be £150 per product and has been leading work with our partners in other member states and UK industry to develop and publish pragmatic guidance on the reporting requirements to minimise the burden on business. So, we will have to wait and see but I do not think it is right to assume that there will be a significant diminution of the number of products in the market.
Lastly, concerns have been expressed that the limit of 20 milligrams per millilitre will not meet the needs of smokers who are most addicted and that they will be unable to benefit from the harm reduction potential of these products. Again, this is not the case. Higher strength products can still access the market after 20 May, but they will need a medicines licence. Indeed, the Government would welcome a wider range of applications for licensed products. The noble Viscount, Lord Ridley, said that there is only one at the moment—which is true—and that it has not been properly marketed. But the Government would welcome more products in this space so that they can be made available to those such as the noble Earl, Lord Cathcart, who need and would benefit from them.
We know that the most commonly purchased products are below 20 milligrams per millilitre, though we do not know the exact number above that limit. We also know that at this strength or below, it meets the demands of the majority of current users and balances the risk of exposure of nicotine to children with the needs of users. Last week the European court agreed with this assessment, ruling that the provisions set out in the tobacco products directive, including those limiting strengths, were proportionate and valid.
It would be a massive unintended consequence if, as a result of this directive, fewer people gave up smoking.
Lord Lawson of Blaby (Con)
It may well be unintended. I would not know the intentions of the curious people who devised this measure, but it is certainly an inevitable consequence, and it is the consequence that matters, not the intention.
Lord Prior of Brampton
The intention of the regulations is to make vaping safer and less variable than it currently is. The intention of the directive is to make it a better product and to cause more people to use it. If it does indeed result in smokers not giving up smoking, then it will have achieved the reverse of what the Government wish to do. The Government’s view is clear: we wish people to quit altogether but if, as a way of quitting, they can give up smoking and take up vaping, that is something that we wish to encourage. Of course, I understand that nothing I can say today will satisfy my noble friends and other noble Lords, but I have done my best to put our case forward.
Lord Hunt of Kings Heath
The Minister is very gracious to keep giving way. It is interesting that he used those terms. There is a reluctance to promote vaping. Even in the words that he used there was a qualification. The Government would prefer everyone to give up smoking but it sounds as though they are half-hearted about this. I understand why they are in that position but the issue that I raised with the Minister is that the evidence is that the public are confused. My concern is that if weights and measures authorities enforce this in a heavy-handed way, it will confirm the public’s view that there is something wrong with vaping. For goodness’ sake, if we could persuade all smokers to vape, it would be a fantastic public health movement. Why is there this hesitation? I do not understand it.
Lord Prior of Brampton
I think that the hesitation comes because for a number of years the evidence around vaping was not clear. Many distinguished scientists felt that it was potentially harmful; it was not just the tobacco lobby. It is now absolutely clear, as I said earlier—I am unequivocal about this—that vaping is far more preferable to smoking. That does not alter the fact that quitting altogether, either smoking or vaping, is probably the best outcome.
Lord Snape
The noble Lord, Lord Callanan, and I mentioned the “heat-not-burn” products. I know that strictly speaking they are not covered by the SI but, as I understand it, they are covered by the legislation emanating from Brussels as a whole. As the Chancellor mentioned in his Budget that he was looking at an alternative to cigarettes, I wonder whether the Minister can comment on the Government’s future intentions.
Lord Prior of Brampton
If that is on the taxation point, I am not aware of any intentions to tax these products. I will find out more about that question and write to the noble Lord but, as things stand, I am not aware of any intention to do so.
Earl Cathcart
My Lords, the noble Lord, Lord Hunt, has twice mentioned weights and measures authorities enforcing this in a heavy-handed or a light-touch way. Can the Minister comment on which he thinks they will do?
Lord Prior of Brampton
I certainly hope that enforcement will be more Italian than traditionally British, if I may put it that way.
Lord Stoddart of Swindon
I am obliged to the Minister for giving way yet again. I understand that he has no power over taxation but, as a member of the department, he has the opportunity to make recommendations to the Treasury. Would he be prepared to ask his department to recommend to the Treasury that it should not put any tax, other than VAT, on this product?
Lord Prior of Brampton
My Lords, I am not responsible for public health in the Department of Health but I will talk to my honourable friend Jane Ellison, who is the Minister for Public Health and will put that view to her very strongly.
Viscount Ridley
My Lords, I will be brief because I know that other noble Lords are waiting to start the next debate. I am most grateful to all those who have spoken in the debate: my noble friends Lord Brabazon, Lord Callanan and Lord Cathcart; the noble Lords, Lord Stoddart, Lord Hunt and Lord Snape; the noble Earl, Lord Erroll; and my noble friend Lord Prior. I say to the noble Lord, Lord Snape, that he looks in extremely good shape. He did not get the advice he was looking for about his health and I am not medically qualified, but he looks fine to me.