Tobacco and Related Products (Amendment) (Northern Ireland) Regulations 2023

Monday 24th July 2023 Grand Committee

Considered in Grand Committee

17:10

Moved by

[Lord Markham]

That the Grand Committee do consider the Tobacco and Related Products (Amendment) (Northern Ireland) Regulations 2023.

Relevant document: 45th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, the purpose of this instrument is to implement the EU Commission delegated directive (EU) 2022/2100 of 29 June 2022, which amends directive 2014/40/EU—the tobacco products directive—to withdraw certain exemptions in respect of heated tobacco products placed on the Northern Ireland market.

The instrument amends the Tobacco and Related Products Regulations 2016—the TRPR—in relation to Northern Ireland. The regulations will apply to producers, suppliers, retailers and wholesalers that produce or supply heated tobacco products for consumption in Northern Ireland. Subject to the regulations being approved by Parliament, they are due to come into force on 23 October 2023.

The regulations apply to Northern Ireland only and are made for the purposes of dealing with matters arising from the Windsor Framework. The SI implements a change so that, from 23 October 2023, heated tobacco products can no longer have a characterising flavour, such as menthol, vanilla and fruit flavours. This is not a ban on heated tobacco, but it will limit the flavours available. A characterising flavour ban is already in place for cigarettes and hand-rolling tobacco in the TRPR.

We do not need to make changes in light of the Commission delegated directive’s requirement for heated tobacco products to contain health warnings and information messages if they combust. If heated tobacco products that involve a combustion process were placed on the UK market, they would be regulated as tobacco products for smoking and subject to existing regulations in the TRPR that require these products to contain a combined health warning and information message. There are currently no heated tobacco products on the GB or Northern Ireland markets that involve a combustion process and, as such, they are subject to the labelling requirements applicable to smokeless tobacco products.

A full impact assessment has not been prepared for this instrument because the costs involved for business fall below the threshold for producing one.

Heated tobacco products on the UK market are produced and manufactured outside the UK by the tobacco industry. The characterising flavour ban will limit the products it can produce and supply to the Northern Ireland market and may impact on profits, in what is a relatively small market for the industry in Northern Ireland.

The DHSC has communicated with the tobacco industry, Northern Ireland retail representatives and enforcement agencies regarding the proposed changes. There is no significant impact on the public sector. Each district council in Northern Ireland will enforce the new requirements. They are not expected to be a significant burden on district councils, given the low use of heated tobacco products in Northern Ireland.

I am content to bring forward this legislation today. These regulations allow us to honour our current commitments under the Windsor Framework and will have limited impact on Northern Ireland business. I commend these regulations to the Committee.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his presentation of the statutory instrument. I have to declare an interest: I am a member of the Secondary Legislation Scrutiny Committee, and we discussed this SI. There was no dissent from it and there was general support, but we drew it to the attention of your Lordships’ House.

I am a supporter of the Windsor Framework, and any shilly-shallying around it can lead to uncertainty in Northern Ireland. It is important that we and the people of Northern Ireland, particularly businesses, can avail themselves of the economic opportunities in relation to access to the UK internal market and the EU single market.

17:15

Notwithstanding that, I have certain questions. First, I note that an

“impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen”.

I am a non-smoker and I do not use vapes. However, I see a heck of a lot of young people vaping. They use fruit flavours in particular. As a consequence of this legislation, from 23 October, they will no longer be able to use fruit-flavoured vapes. In that respect, although consultation will have taken place with district councils, what consultation took place in advance between district councils, the Department of Health and the Department of Health in Northern Ireland, along with schools, youth groups and youth societies because this will affect young people?

I believe that, although it may be better to use these particular vapes than tobacco products, there is a health risk with them none the less. Has the Minister considered the Committee on Toxicity’s report, which stated that the evidence is limited that it is plausible that these devices are less harmful than conventional cigarettes but that they are not risk-free? It would benefit smokers to quit smoking completely rather than to switch to heated tobacco products, because such products will still be available in Northern Ireland.

I am not seeking to be the Gestapo in relation to these matters but there is one final, serious point that I want to make. During our troubled history in Northern Ireland, paramilitary organisations used the black market to import and export cigarettes whenever Northern Ireland was a manufacturer of such. My fear is that, if certain products are prevented, certain paramilitary organisations will try to use that method to import flavoured varieties of vapes. What mitigation measures have been put in place with HMRC, the Treasury and Customs, working with district councils to address this issue and ensure that this level of crime is both detected and, I hope, eradicated? Will the Organised Crime Task Force be involved in this matter? I am not trying to create a sense of fear in relation to this; I am just presenting a political reality in Northern Ireland. After what has happened in the past, how can this be addressed because prevention often leads to underground activity?

I will leave those questions with the Minister. I look forward to his response.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie. Like her, I declare that I am neither a smoker nor a user of vapes.

Despite their technical-sounding name, these regulations are important in their own terms for what they do in this area. However, they are also important in the wider political sense because they are a manifestation of the direct application of European Union law to Northern Ireland as opposed to the decision being made by anyone who has been elected in Northern Ireland, either in the Stormont Assembly or in this Parliament. It is therefore a good illustration, whatever your views may be on the subject, of the issue that is at the heart of the problem now facing Northern Ireland politically and that is causing so many problems in getting the institutions back up and running.

I would have thought that an issue such as this would be something that elected representatives of the people of Northern Ireland would wish to consult on, discuss, debate, come to a conclusion on and eventually pass, either at Stormont or at Westminster. However, under the Windsor Framework, which is a version of the original protocol, they are not allowed to do that. This decision, as the papers make clear, is a decision that has been made by the European Union.

I want to explore with the Minister—if he cannot answer these questions today, I would obviously be happy to receive a letter setting out some of the answers in detail—first, what consultation was carried out by the Government, in bringing forward these regulations to implement European Union laws, with anyone in the Department of Health or any other department in the Northern Ireland Executive. This instrument says that it applies changes “to Northern Ireland only”. What is the position in Great Britain and in the rest of the United Kingdom? The committee on which the noble Baroness, Lady Ritchie, serves and to which she referred in this debate references the general restrictions that apply to the market in Great Britain for vaping machines and products but there is nothing there about the actual issue of characterising flavourings, which is the subject of this piece of legislation for Northern Ireland. What consultations have been carried out in Great Britain thus far on whether to go down the same route as the European Union? If it is decided that the rest of Great Britain will not go down that route, what implications does that have for regulatory divergence with the rest of the United Kingdom—namely, Northern Ireland?

For instance, what will happen to somebody who buys or gets a vaping product in England, Scotland or Wales, brings it back to Northern Ireland and uses it, hands it over or sells it to friends? Under the term “supply”, I would have thought that that would be illegal. How will that be enforced—or will it? I have a further question for the Minister. Will there be checks carried out at any point to determine whether people have such products and are bringing them back as an individual for use or for distribution among friends, or even as a small business to sell them? How will that be implemented? If it is to be implemented by surveillance in market, why cannot that happen in relation to a whole lot of other products that are subject to green and red lane checks under the Windsor Framework? Again, I would like the Minister to deal with that question.

We have here before us a statutory instrument that is UK law but applies only to Northern Ireland. However, it has been brought forward at the behest of the requirement under the Windsor Framework to implement EU law. The noble Baroness, Lady Ritchie, serves on the protocol Select Committee with me; we are honoured to do so. We have many examples of legislation from the European Union, applied under the Windsor Framework, which are just applied directly and do not require any UK legislation at all. Again, I would be grateful if the Minister could explain why it is that this case requires UK-implementing legislation whereas, in many cases, it does not. It sometimes seems hard to rationalise what the difference is, although I accept that that is a wider question than the Minister be here at this Committee armed to answer. If that could be explained to your Lordships, I would be very grateful, as I would be if the Minister could explain where we might find the list of the statutory instruments that are being brought forward and the Explanatory Memorandum in the case where they are not being brought forward by the Government but are being brought forward by the EU directly.

The noble Baroness, Lady Ritchie, mentioned the district councils that are required to enforce these regulations. An impact assessment has not been carried out. I would therefore like to know what consultations there have been with the district councils in Northern Ireland, which are under severe pressure at present. What is the estimated cost in terms of enforcement of this and other requirements under the Windsor Framework, given that they have presumably had no consultation from anyone at the Stormont level or, indeed, at the Whitehall level? I would be grateful if the Minister could answer that one.

On the requirement to decide whether a tobacco product has a characterising flavour, the regulation of the European Union sets out the procedures for determining that. It also lays down the procedure for the establishment and operation of an independent advisory panel to assist in this determination. It seems quite convoluted but there you have it: it is in EU law. We are told that, in accordance with the Windsor Framework, both pieces of EU tertiary legislation apply in Northern Ireland. Again, what exactly does that mean in terms? Where is this legislation and will it be brought forward by statutory instrument or directly by the European Union? Will there be a chance to consult on it? If there are to be people appointed to an independent advisory panel, how will we find out how that is done? Questions around that would be deserving of an answer.

Small businesses and retailers in Northern Ireland—small shopkeepers and so on—will have to be aware that, after 23 October this year, they will no longer be able to sell heated tobacco products with a characterising flavour. So where do they get their supplies from? Has anyone talked to the retailers and small shopkeepers? Has anyone sat down with them to say what the impact of this on their businesses will be? Whether or not you agree that this is a good idea—I am not making any pronouncement on that; I have a lot of sympathy with everything that the noble Baroness, Lady Ritchie, said on the issue, particularly around young people—it is an issue of process and proper accountability. Who has actually sat down with wholesalers, retailers and shopkeepers and discussed this matter with them? What guarantee is there that these people will be aware of this change in law?

I am aware that I have asked a number of questions and that they are perhaps not all capable of being answered today. However, when they are answered, either here today or by letter, I hope that they will provide some clarity to people on this issue. As I say, it illustrates the issues that we have with a form of legislation for part of the United Kingdom when the people who make the law are not accountable to anyone in that part of it and nobody elected as a representative of the people in that part of the United Kingdom has any opportunity to have a vote or bring forward legislation in this area.

[Lord Allan of Hallam (LD)]

My Lords, it does rather feel like the old days to be transposing EU directives into UK law—the good old days, from my political perspective—but I certainly recognise some of the political challenge that the noble Lord, Lord Dodds, has outlined around the agreement that the former Prime Minister, Boris Johnson, signed up to, as confirmed by the current Prime Minister. This is one of the anomalous situations that they have created made real for us because we have to transpose certain elements of EU law specifically into regulations that have an impact on Northern Ireland but not on Great Britain.

The substance of the change seems to us to be entirely sensible from a health perspective. My questions relate to similar areas to those raised by the noble Lord, Lord Dodds, around the relationship with Great Britain, but they come from perhaps a slightly different perspective.

My primary question as a health spokesperson is: why not Great Britain? If we are seeking to limit flavoured heated tobacco products today, why are we not limiting them across the entirety of the United Kingdom? Why are we doing it for Northern Ireland only? I have a concern that there may be a “not invented here” syndrome going on. While we have to implement this for Northern Ireland, we have a choice in Great Britain; there is nothing to stop us imposing similar limitations on Great Britain. I would be concerned if the position of His Majesty’s Government is almost that we are aiming to be awkward and are somehow deliberately misaligning with something that has a public health benefit.

17:30

The note that we were given carefully explained how the European Commission has done some work and released a report on 15 June 2022 giving its rationale for why it needed to make this change. I would be interested to hear from the Minister what assessment his department has made of that report because one version is that the European Commission has done the hard work for us. If it has spent time looking at the potential harms done by allowing the continued sale of flavoured heated tobacco products, presumably that evidence is also useful for us and could allow us to shortcut our way to a similar policy conclusion. It is important that we understand, both for this and for other directives, what position the Department of Health and Social Care is taking in the United Kingdom in looking at what the European Commission is doing and learning from it.

Similar to the question from the noble Lord, Lord Dodds, it would be helpful to understand from the Minister what consideration the department gave to whether this should be for Northern Ireland only or an amendment should be made for the United Kingdom. As I understand it, there is nothing to stop the Government doing so. It certainly seems to me that it might have been a similar amount of work to bring forward a change to all the tobacco product regulations at the same time as it would have been to bring it forward for just Northern Ireland. If we are to reach the same conclusion, we will back in this Room in a few months having the same debate about a similar change to the regulations for Great Britain. Why not do that all together and make a positive health change in one fell swoop rather than in two different stages?

I have a final couple of points. One is on the issue of vapes, which the noble Baroness, Lady Ritchie, raised. I understand that these particular regulations do not deal with vapes but with those little cartridge-based products, as opposed to liquid-based products, which do not count as heated tobacco. However, there are similar, perhaps even stronger, arguments as to why we should limit the availability of flavoured vaping products. This is another opportunity to ask the Minister what the Government are doing on that because the evidence that we all see as we go around is that people are deliberately marketing vaping products to children and young people and they are being taken up in huge numbers.

Here we are, spending time debating a change to the rules to deal with this very minor segment of the market when it seems to me that we are being very slow to find the time—or perhaps the will—to deal with this much larger segment of the market, which presents a clear and present danger to teenagers in particular. People are out on Oxford Street today pushing raspberry-flavoured and bubblegum-flavoured vaping products. What is that all about and why are we not finding the time to deal with it? That is a legitimate question on the back of this debate on flavoured heated tobacco products.

Another area that I wish to look at is enforcement for both heated tobacco and vaping products, which, again, is critical and was raised by the noble Baroness, Lady Ritchie. Even within the legal nicotine delivery market—if I can describe it that way—there are people pushing products that I understand are already outside the law today. The weak point seems to be trading standards being able to enforce and shut down people who are pushing illegal products. I would be very interested to hear from the Minister what work his department is doing with health bodies and trading standards bodies in Northern Ireland, Scotland, Wales and England to make sure that nicotine delivery products really are within the regulations and that, when people stray outside them, they have some fear that they may be caught; if they think that there are no consequences, they will continue to sell products, including the products that we are debating today. If there are no consequences of being caught, why would unscrupulous vendors feel that they need to come into line?

My final point is on the question raised by the noble Lord, Lord Dodds, about whether we are going to see a landscape in which there is divergence across the piece. We are dealing with a small segment of the market today but I can easily imagine that the European Union might get its act together and regulate vaping much more aggressively and quickly than we do. It is potentially a much bigger deal if we have one regime for vaping in Northern Ireland and a different regime for vaping in Great Britain. It seems to me that that would be much more unsustainable and create all kinds of issues around cross-border smuggling and people moving products around so, again, it will be interesting to hear from the Minister where the Government’s thinking is in terms of convergence, which seems entirely sensible around the whole range of nicotine delivery products, versus divergence, where we end up with different rules on vaping, combusted tobacco products and these heated tobacco products. If we end up with divergence across all these fields, we are potentially walking ourselves into trouble.

[Baroness Merron (Lab)]

I start by thanking the Minister for introducing these regulations, which we welcome, and expressing my appreciation for the way he set out their application, the summary of which is that, from October, it will be illegal in Northern Ireland to produce or sell heated tobacco products that have what is called a “characterising flavour”. As the Minister explained, this change is happening because of the requirements of the Windsor Framework and in response to a policy change implemented by the EU—more of that later.

With regard to heated tobacco products, unsurprisingly, some in the tobacco industry have claimed that they are less harmful than conventional smoking. Has the Minister had time to review the analysis by the University of Bath, which has shown that most of the studies referred to in order to back up said claim were either affiliated with or funded by the tobacco industry? Surely that raises a considerable flag. Conversely, the European Respiratory Society has pointed to independent research showing that heated tobacco products emit substantial levels of toxicity as well as other irritant substances. Although the use of these harmful products is said to be very low in Northern Ireland, they are increasingly being marketed, without evidence, as a healthier alternative to smoking.

On that point, I would like to pursue the questions that have been asked by noble Lords in the course of this debate about whether there are plans to adopt similar legislation here so that there is parity between England and Northern Ireland; and whether there have been discussions with the other devolved Administrations in order to ensure that there is parity in legislation and, therefore, not the problems across borders that have been described. The noble Lord, Lord Dodds, explored this matter extremely well. I was particularly taken with the obvious practical example that somebody can purchase a product here and take it to Northern Ireland. What is the implication of that? That is going to happen all the time; it is just a fact. I am sure that all noble Lords will be interested to hear the Minister’s response on that.

Have the Government made any assessment of the prevalence of heated tobacco product use across the rest of the United Kingdom, principally in England, along with the wider health implications of such use? Perhaps the Minister could also outline what action his department is taking to combat the increased marketing of such products—marketing that is often underpinned by spurious tobacco industry-backed research, as I referred to earlier.

As was spoken to by the noble Baroness, Lady Ritchie, and the noble Lord, Lord Allan, can the Minister set out how the Government will assist Northern Ireland in the implementation of the ban, particularly given the possibility of illegal importation from England? It certainly seems strange—this point has come out in the debate—that, following the implementation of the draft regulations, there will be more stringent legislation in place to clamp down on heated tobacco products in Northern Ireland than in the rest of the United Kingdom. Can the Minister assist us in trying to understand how that will help? Are the Government considering implementing a ban on these products in their tobacco control plan, which was promised by the end of 2021? That leads me to the question of when—indeed, whether—we will ever see it published?

I want briefly to highlight concerns in relation to children and young people in particular. I note that the Secondary Legislation Scrutiny Committee referred to the fact that it was in the light of increased sales volumes among under-25s that the EU amended its legislation on heated tobacco products. In this regard, the Health and Social Care Committee in the other place recently took evidence from not only health experts but the industry. It made for interesting reading. The committee heard evidence that the topic of conversation for young people in the playground was often the different flavours that they were trying, such as

“Gummy Bear, Slushy and … Unicorn Milk and Unicorn Frappé”.

This was also referred to by the noble Lord, Lord Allan. These are different flavourings that are clearly not aimed at an adult audience. While we are talking about vanilla and other flavours in heated tobacco products, does the Minister agree that it will not be long before we see them being extended to products that are deliberately constructed to be attractive to children to get them to take up smoking? What is the strategy to deal with this?

It is absolutely crucial, in dealing with tobacco control and ensuring that we reduce harm to the health of people of all ages, that we look ahead. I hope that these regulations and the debate around them, including noble Lords’ contributions, will again alert the Minister to the need to anticipate future developments in tobacco products, not just in Northern Ireland but across the whole of the United Kingdom.

[Lord Markham (Con)]

I thank noble Lords for their contributions. As ever, they showed that there are interesting intricacies in every part of health; it is one of my key learnings over the past nine or 10 months that I have been in this role.

I want to clear up one thing. I admit that there was a bit of confusion on my part, as well. As the noble Lord, Lord Allan, said, we are not talking about vapes here—we are talking about heated tobacco. There is a heated tobacco stick, which basically heats to temperatures lower than that of a cigarette and releases an aerosol. I am sorry if noble Lords knew that already, but I thought that was worth clarifying. Because of that, this product is used by a very small number of people. It is estimated that less than 0.5% of smokers use this product; if you apply that to the population, it is 0.065%. I hope that this gives some sort of clarification behind our decision, when we talk about whether we did an impact assessment, because we are talking about very small numbers being involved here.

17:45

Of course, there are wider read-across questions about vapes, but that is a larger subject. There is a consultation on that going on as we speak. Clearly, we need to see the results of that and decide where we go from there but, in GB, we would need primary legislation if we wanted to do something in this space. It is only the fact that this is part of the Windsor agreement under the EU, which was a primary legislative process, that enables us to do it through a secondary instrument in Northern Ireland, which we are not afforded to in GB. That is not to say that we should not consider those things and, as I said, we absolutely are considering them in the consultation that we are doing at the moment, but that is why this is not just a simple case of piggybacking off what the EU has done. It is obviously a larger subject for debate.

I think that we in the Committee would all agree that cigarettes are the worst form of smoking and not smoking at all is best. Both vapes and heated tobacco lie somewhere in the middle, where we would rather people use heated tobacco or vapes than cigarettes; but really, of course, we would rather they do not do any of those things at all. However, right now, our strategy is that we believe that vapes are a legitimate and important way of getting people off smoking, albeit I think we all accept the unintended consequences that we are starting to see from the marketing of vapes to children and hence the consultation that we need to do because that is clearly an area of concern.

The noble Lord, Lord Dodds, asked about some of the wider issues, including the consultation carried out with the Northern Ireland Executive, and whether it will lead to divergence, the movement of goods taken backwards and forwards, and so on. As he suggested, I will give him a detailed response, because it requires that but, inevitably, this clearly will be an example of divergence by its nature, unless and until we decide to enact primary legislation to make similar regulations if that comes out as a result of the consultation. On the questions relating to the movement of goods bought here and then taken over there, the honest answer is that, because we are talking about such a small part of the market—0.5% of smokers and 0.065% of the whole population—we would probably be better focusing our attention on other areas in terms of the movement of illicit goods.

I am not aware of the Bath University study, but I will make sure that I find out about it. I hope that, in this conversation I have managed—

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for giving way. In relation to what he said about the transport of these substances, I indicated the issue of regulation, as did the noble Lord, Lord Allan. In the past, during our troubled history, cigarettes were used as a form of smuggling, and also used as contraband by paramilitary organisations. The Minister says there is only minor use of these cartridges, for want of a better description—but I have seen them sold along with cigarettes in locked-up containers in shops, and young people purchasing them, particularly the fruit-flavoured ones. If they do not have access to that, how will they be able to get them? What mitigation and control measures will be put in place to prevent them becoming like contraband and being abused by erstwhile paramilitary organisations?

[Lord Markham (Con)]

I thank the noble Baroness for that remark. I think that I probably need to give that a detailed response as well. The point I was trying to make was that these heated tobacco products are a very small part of the market to begin with and the flavoured versions are even smaller again. While the noble Baroness is correct that that potential is there, the amount is very small indeed, but I will give her a detailed response on that.

I have tried to answer the specific points raised; as I say, I will follow up in more detail in writing. We have to honour the regulations set out by our commitments under the Windsor Framework agreement. With that, I commend these regulations to the Committee.

Motion agreed.