Tobacco and Vapes Bill (Second sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Tuesday 30th April 2024 Public Bill Committees

[Preet Kaur Gill]

Q In what circumstances do you envision that local enforcement would not be enough and the Secretary of State would need to use the powers to intervene granted to her by the Bill? That is in clause 64.

Cllr Fothergill: We fully support the local penalty notice being issued by the councils. We believe that that is the right way to go and that it will not clog the courts, but there is always the option to refer to the magistrates court if required. Our big concern is the size of the fine, which we believe needs to be reviewed: £100 or, if paid within 14 days, £50 is hardly a penalty. We argue that we need to have greater opportunity to fine those in contravention of the law. Then, we believe, there would be less and less need for the Secretary of State to be involved. The reason he or she would need to be involved is if we cannot contain it—because we cannot issue enough penalty notices to contain it locally.

Greg Fell: A similar issue would be multi-local authority enforcement scenarios. We know that organised crime networks are not linked to an individual area, so it stands to reason that there will be a need for enforcement that cuts across many authority areas, hence there is a need for networked trading standards. That might also include, possibly, the borders—stopping the imports of illegal vapes and tobacco.

Additionally, as Councillor Fothergill said, we are concerned about the size of the fine. Certainly I hear through DPH parochially, who talk to their trading standards and licensing teams, that when there is a much larger fine that may or may not be linked to the removal of an alcohol licence, that will make a retailer really sit up and think.

[The Parliamentary Under-Secretary of State for Health and Social Care (Dame Andrea Leadsom)]

Q I appreciate you being here. Can you give me an idea of the LGA’s view of a licensing regime? That is not proposed in the Bill, but some people say that licensing would be a better alternative than the measures we are proposing here.

Cllr Fothergill: Certainly. Although we fully support the Bill, we think there could be one or two changes, which I have already referred to—we would like to see amendments—and there is the option of a licensing scheme, which we would support. If it was done on a similar basis to liquor licensing, we would be able to enforce that, because it would be backed by legislation. Of course, we would need to make sure that trading standards were fully funded for that. We would support that, if it was something that the Government brought forward.

Greg Fell: I cannot speak for the LGA’s position; ADPH does not have a formal view on licensing. I would broadly support it, but there is a danger that putting that into the mix delays getting the Bill through Parliament and turned into an Act, and getting the Bill through Parliament is arguably the most important thing.

I would broadly support that, but I come back to the complexity. Vapes are sold in hairdressers and beauty parlours and so on, so we would need to think it through. Arguably, if we are going to get into a licensing scheme, that should be for tobacco and nicotine-containing products, not just vapes; I would personally go to tobacco as well. Critically, the resourcing to make it work properly would need some very careful thought and consideration. All of that would need to be in the mix, but broadly I would support it, with those caveats.

[Dame Andrea Leadsom]

Q You have already said that you do not think the penalties are high enough, but do you think that the enforcement rules as they are, with the proposals to change the packaging, move the location of vapes and so on, will make it easier or harder to enforce? Do you think that enforcement officers will have sufficient time to train and gear up to meet the challenge of the legislation?

Cllr Fothergill: Specifically on vaping, we support the move to plain packaging, moving them away from the counter and restricting flavours—we support all those things. I have to say that we recognise the role of vaping in helping people to give up smoking, but where children and younger people are involved, we want to move the vapes away and make them less accessible. Trading standards will enforce that, as long as there are clear definitions of what can be sold, where it can be sold and who it can be sold to. A lot of the work that they do is evidence-led, so they will work on people who are giving them tip-offs or where they are seeing that there is a trend in an area where those products are being sold. As long as we are resourced and we recognise that a lot of that evidence-led work is required, it is entirely achievable.

Greg Fell: I have a fairly similar view. Largely, trading standards do this work now. The easier and simpler we can make it, and the more we make sure that it is resourced appropriately, the better, but they largely do this job now pretty well.

[Rachael Maskell (York Central) (Lab/Co-op)]

Q My question is for Greg Fell. The clarity and simplicity of knowing where you can smoke has meant that the universal principle of that bar has largely been applied, but it has not applied to vaping to date. Given that vapes contain not just nicotine but cannabis, Spice and other illicit substances, should the same restrictions be applied to vaping?

Greg Fell: Hopefully only illegal vapes contain cannabis or Spice, and not legally produced ones—I sincerely hope that is the case. I have mixed views on vaping in public. I think that Prof McNeill will talk later this afternoon. It is worth reading her evidence review for the Office for Health Improvement and Disparities, which has a whole chapter on the passive inhalation of vapes. The ADPH does not have an official position on the passive inhalation of vapes, but my personal view is that in open spaces I am not too worried about it. In enclosed spaces, I might be, particularly for people who have pre-existing respiratory conditions, but I do not think that the evidence supports it being as big an issue as people think. However, that is definitely a question for Prof McNeill, who is the expert on such matters.

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[Bob Blackman]

I think we should have one.

Cllr Fothergill: I agree.

[Dame Andrea Leadsom]

Q You made a very good case for the age of sale rising each year, but as the LGA, do you think that will be tricky for enforcement purposes? An argument is often made that if you were 40 and I was 41, we would go into a store and I would have to buy your cigarettes for you. What would you say to that as an argument for continuing with the smoke-free generation legislation?

Cllr Fothergill: We have to be very careful that we do not spook ourselves out of doing something that is absolutely right. If people get to the age of 40 and have to show that they are 40 to be able to buy cigarettes, that is what they should do. I am sorry to say that I am 67. I have to show a bus pass every time I get on a bus to show that I am old enough to travel for free.

[The Chair]

You don’t look it.

Cllr Fothergill: Thank you very much—I’ll take that.

At every stage in life, you are asked for verification, and this is just another time. It should not stop us from doing the right thing and moving the age up so that we eventually achieve a smoke-free population.

Greg Fell: It is a long time since I have been asked my age. It may throw up some tricky moments, but as Councillor Fothergill said, let’s not stop ourselves doing the right thing here. I think most people agree that it is broadly the right thing. The Bill itself is massively important for norm-setting. Even if the norm-setting achieves half of the goal, thousands of lives will still be saved.

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[The Chair]

Greg, before I bring Andrea in again, you do not look 67 either. I want to get that on the record.

Greg Fell: Not a day over 25, Chair.

[Dame Andrea Leadsom]

Q I beg people to ask me my age when I am buying a drink, and they just will not.

The additional things—heated tobacco, shisha and so on—that come under this legislation include cigarette papers. We all know that they can be used for rolling joints and other purposes, and that cigarette papers contain carcinogens. However, some have quite a strong desire to exclude them—I do not know why. What is the view of the LGA and ADPH on that point?

Cllr Fothergill: We believe that the scope of the Bill as it is currently written is right, and that is what we would support. We would not want to see anything excluded. Every time there is a change to smoking legislation, we hear the argument that it will increase the amount of illicit trade coming into the country. That is not a reason not to do it. It is our responsibility as trading standards to enforce, and although people always use that argument, we have to do the right thing and enforce by properly funding trading standards.

Greg Fell: If I had £1 for every time I have heard the illicit trade argument, neither of us would be here. The heat-not-burn—the clue is in the title—is a tobacco product, and I would treat it like a tobacco product. It may be safer than burned tobacco—we do not know. I would like to see some independent research. However, I would not delay the Bill until I see independent research. I would personally argue to not allow exclusions. It may seem much harder to enforce, but there will already be some tricky points in enforcement; we already know that we need to resource that properly. I would keep the simplicity and not allow exclusions.

[The Chair]

We have two minutes left. Is anyone burning to ask the last question? We have had very clear evidence and it has been an excellent session, but is anyone sitting on a question they have not yet asked?

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[Preet Kaur Gill]

Q My first question to you is, what is the impact of tobacco smoking on public health? Secondly, do you think the Bill’s measures to prevent vaping products from being sold to children will be successful? That is essentially clauses 61 and 62.

Ailsa Rutter: Tobacco is devastating. It is devastating to every individual who dies way too young, and to the family who lose their loved one. In my region alone, just since the turn of the millennium, 120,000 of our loved ones have died from smoking. It is not an adult choice, but a childhood addiction. The vast majority of those smokers reach a point where they deeply regret having got hooked in childhood, not thinking that first puff on a cigarette would be so addictive. It is really important that we remember the 6.4 million remaining smokers in the UK and the fact that 350 18 to 24-year-olds will get hooked on lethal tobacco smoking today.

I would like the Committee to imagine that cigarettes did not exist. It is 2024, and here we are discussing a product that is designed to hook, kill, maim, and be completely addictive. This discussion today needs to be about the future world we want to strive for. We can talk a lot about how we will enforce it, which is very important, but for me this is about imagining that in 20 years’ time we have created an entire new generation protected from this uniquely lethal product. That is why in the north-east, all 12 local authorities, all 10 NHS trusts, our integrated care board—the biggest in the country—and our Association of Directors of Public Health have given whole-hearted, unanimous support to the “stopping the start” proposal on the age of sale of tobacco.

We absolutely recognise that smoking is much more harmful than vaping, but vaping is not risk-free. Vaping is playing a pivotal role in our region—with our higher levels of deprivation and addiction—to get people off lethal smoking, but that is not to say that we do not absolutely agree that much more needs to be done to reduce the appeal of vaping to young people. We wholeheartedly believe that we must address the inappropriate packaging that is too youth-friendly. Some of the in-store promotions are completely inappropriate, where children are really noticing it. We must ensure that we recognise that children are growing up within a family context; children do not live in isolation. There is also the importance in our region of sending clear, evidenced-based messaging. We can also see the positive impact on children’s health if we can get the parents and carers off lethal tobacco smoking and if we can reduce second-hand smoke harm. Really important as well is more money in people’s pockets, because cigarette smoking has such a negative effect on your income.

[Dame Andrea Leadsom]

Q Thank you so much for being here and for all you do in the north-east. It is fantastic.

As you will know, rates of smoking during pregnancy in the north-east are some of the highest in the country. Do you think this legislation will help to reduce those very high numbers? The rate is somewhere in the region of 14% in the north-east.

Ailsa Rutter: We have made really good progress in the north-east in reducing maternal smoking; that has come through very good collaboration between our local maternity services and our local authorities, as well as the fantastic leadership from key people in the local maternity and neonatal system, the LMNS, and the direction from directors of public health.

As with anything, there is not one magic solution; it is about taking comprehensive measures. The tobacco age of sale increase will undoubtedly have a really positive impact on reducing maternal smoking. It needs to be coupled with important things that we must continue to do as well, so we also welcome the increased investment for stop-smoking services.

We hugely welcome—thank you—the reinvestment in the evidence-based health harms campaigns. We are thrilled that nationally you are using our fantastic “smoking survivors” TV advert featuring Sue Mountain. The role of financial incentives is also really important; we know that they have a very strong evidence base. This will have a positive impact on maternal smoking.

[Nickie Aiken]

Q If there was one thing you could add to this Bill, what would it be?

Ailsa Rutter: Gosh! There are already some fantastic elements in the Bill. The key thing for me is to make sure that we can get the Bill through—particularly the focus on tobacco. It is really good to think that there is going to be subsequent consultation on the important elements around vaping. Factoring in what colleagues said previously, we need a simple mandatory age verification scheme. That is already in place in Scotland, and I would certainly welcome its introduction in England.

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[Dr Johnson]

Q I want to ask you about the licensing regime. You have to have a licence to sell alcohol and tobacco, and some have suggested that you should have to have a licence to sell nicotine full stop because it is an addictive substance. That would mean that you would need to have a licence to sell vapes, partly as a way of making them less accessible to children in the places that they may be sold. Would you support that?

Adrian Simpson: It is not an issue that we have discussed at any length in the British Retail Consortium. We are aware, of course, that there are parts of the UK where licensing is required for certain tobacco products. We are well used to the alcohol licensing that has been going on for many years. Unfortunately, I cannot comment on whether the whole sector would be in support of that. We would perhaps need to see how a potential licensing system would operate before we gave our full support to it.

[Dame Andrea Leadsom]

Q Thank you so much for being here. You will be aware that, in putting together legislation, huge effort is made to be balanced and not excessive and to make it doable and achievable, nowhere more so than for those who are trying to enforce it.

May I press you a bit further on the point that Preet made about whether the fines are sufficient? You have said that it is a bit complicated and will require some lead-in time—which is obviously provided, with the 2027 date—to give appropriate training to shop staff. The quantum of the fine was intended to enable on-the-spot fines, rather than having lengthy litigation because the person who incurs the fine does not have the cash and needs to go away, may or may not pay it, may or may not have to be pursued, may or may not have to go to court, and so on. Understanding that there are different views on all sides, is the balance just about right or, if you could have put your own wish list together, are there things that you would have done differently?

Adrian Simpson: We would have liked to see more education provided to retailers who might have broken the rules. A fine can be life-changing for someone who is given one, so we like to see whether there might be a way around that; perhaps the shop worker could be educated first, rather than going straight to a fine, if at all possible. We would like to see that balance of education before strict enforcement, if possible. That would be our wish.

[Steve Tuckwell]

Q Thank you for coming in this afternoon. It is a pleasure to hear your thoughts. What will be the challenges for retailers in enforcing the ban on sales?

Adrian Simpson: The first challenge is education of all the shop staff. Our members are the very large, household-name retailers, and it will take a long time to get that education out to the hundreds of thousands—in some cases—of shop workers throughout the UK. We also think that there will be issues to do with changing our point of sale systems, things like where we are going to store some of these products if we need to, and even things like the size and nature of the tobacco notices. Retail operates in many different ways—we think of the large supermarkets, but there are very small stores as well—so a lot of thought needs to be given to the technical parts of the legislation, which of course we always work with you on.

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[Dame Andrea Leadsom]

Q You mentioned that your members are used to working with Challenge 25. Do you see the Bill working in the same way? As the age of the smoke-free generation rises from year to year, will your colleagues in the retail sector manage to look at two different customers and ask the one that they are concerned about to verify their age?

Adrian Simpson: I think you made a wise point earlier, Minister, about the difference between a 40 and a 41-year-old. That is absolutely our concern: how will we do that? We hear a lot of things about artificial intelligence and new technology for age verification, but a lot of it is still down to human interaction—whether a human can tell the difference between 40 and 41, which can be difficult. That is certainly one of our biggest concerns. Again, we are keen to avoid situations where there could be a touchpoint for violence against shop workers.

[Dame Andrea Leadsom]

Q You will have heard Mr Fothergill from the LGA saying that he has to show his bus pass every time he wants free transport. Do you feel that that is where the solution lies?

Adrian Simpson: There certainly needs to be a bit more research into what the best methods are to keep this age restriction going. It is a new challenge in the retail sector. We have never had anything like this before, and the UK is a leader in this area. I think that, at the beginning, it will be about us all working together to try to get the age restriction going and to make sure that it is enforced, because—this is one point that I would like to make—our members are obviously very compliant and want to do the right thing. These household names are very protective of their reputations; they want to be good and to do the right thing for society. However, I certainly think that, with this new system that might come in, there could be some teething problems. We hope not, but that can naturally happen with all new systems.

[Dame Andrea Leadsom]

Q May I just clarify, then, that your members support the uplift in age, year on year? As you will no doubt be aware, there are some who challenge that and say, “Well, it shouldn’t keep escalating,” but the British Retail Consortium does support the idea of the increase, year on year, of the smoke-free generation, as so many of our other expert witnesses have done today. Would that be right? I do not want to put words in your mouth.

Adrian Simpson: It was definitely a point that came up quite a lot when we were debating this with members themselves. I would say that we are cautiously welcoming it, just because it will then bring about a level playing field for all retailers—because we know that these measures are not necessarily directed at our members, who are, as I say, in the legitimate, responsible retail sector. It will bring about a level playing field but, as I say, we might still need to see how it would operate in practice, I suppose, before we give it our wholehearted support.

[Mary Glindon]

Q I was just searching for a quote, which I think I cited in a debate last year, about a survey that had been commissioned about buying vapes. Out of the 28 vapes that were bought, 25 were illicit vapes. I presume that those are from places that are not responsible retailers—they clearly are irresponsible if they sell those. Are there a lot of retailers that do not subscribe to your organisation where this sort of thing could be occurring? If that is the case, how can we encourage them to become responsible retailers and join the consortium? What should be done? Do you try to reach out to retailers that you know are perhaps not the best and that you would like to see engage with your organisation to help to prevent this kind of illicit sale?

Adrian Simpson: Exactly. Our membership is predominantly the household-name retailers—the large retailers; the ones that certainly would not be selling illicit vapes. We have comprehensive supply chains, and our members put a lot of effort into making sure that their supply chains are operating with integrity, so that illicit products cannot enter them. I have not seen that report, but my feeling would be that the sellers mentioned in it are highly unlikely to be members of a reputable trade organisation. They might be ones that would not be looking for the same standards that our members would operate to.

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[Preet Kaur Gill]

Q Finally from me, in your response to the Government’s “Creating a smokefree generation” consultation, you called for a fixed penalty notice of £200 and maybe the option of increasing that. Do you think that the fines and the monetary penalties in the Bill are appropriate?

Kate Pike: We really welcome the addition of a fixed penalty notice to our enforcement toolkit, but we absolutely want to have our own range of sanctions, which includes the opportunity to go to prosecution for persistent or egregious offenders. The fixed penalty notice can be a really quick solution, potentially against an individual salesperson, depending on the setting and the nature of the offending. I think that £100 can be quite a lot; £200 would be more. I think that is enough, given the opportunity in the Bill to increase it at a later stage if it is not working or having the impact that we want.

John Herriman: It is all relative at the end of the day. It needs to be tested first. To some illegitimate businesses, that will be seen just as a business cost. Whatever the amount is, we need to ensure that it is not seen as a business cost that can just be absorbed. It has to be a tangible deterrent: that is the key.

[Dame Andrea Leadsom]

Q It is great to see you—thanks for coming today. I think you are saying that at the moment the fine is set at the right level. It is a really important issue: by no means do we want it to appear to be a cost of doing business. Our previous witness was suggesting that for some shop workers it is a very significant sum and is quite problematic for them, so perhaps there should be training in the first instance.

We have sought to get the right balance, with a £100 fine that can be reduced to £50 if it is paid on the spot. For any of us, a day when we have to dish out £50 because we have done something wrong is a significant bad day. On the other hand, there is an escalation process to criminal prosecution. I am really keen that we get the balance right up front, notwithstanding that there will be powers to change it. Can I press you a bit further: is this or is this not the right place to start?

John Herriman: Can I make a broader point, and then maybe Kate can come in on the specifics? This is all about the market surveillance activity that allows you to understand what is happening on your local high streets and your ability to take enforcement action where necessary, whether that is a £100 fine or a prosecution. Fundamentally, that is the challenge at the moment. It is about the ability to have the right level of market surveillance and the right level of enforcement activity. I am sure it is a question that will come up. It is a challenge for trading standards at the moment, because over the past decade or so it has had significant cuts, in the region of 50%.

There are two halves to this question. First, is this the right legislation and are the amounts right? Secondly, legislation is only as good as the ability to enforce it. It feels as though the legislation is right—I will let Kate comment further on that—but the ability to enforce it is critical.

Kate Pike: Absolutely. Whenever we look at a new piece of regulation—as I think somebody mentioned earlier, we enforce more than 300 pieces of legislation across the spectrum—we ask, “Do we have the powers to enforce?” In the Tobacco and Vapes Bill, yes, we do. “Are there criminal penalties in there?” Yes, there are. The key things from our point of view—the building blocks—are there.

Across the spectrum, how many businesses sell tobacco? The impact assessment for the Bill says that there are something like 60,000 or 70,000 across the United Kingdom. On that spectrum, there are big businesses that know what they are doing and do not need a lot of support from us. There is a big chunk in the middle that might need a bit of support and guidance—they may make a mistake, but we can support them, help them and train them. Then there are a small amount at the other end that are the dodgy ones. We need to focus our enforcement efforts on them, because we will never be able to put one trading standards officer outside every business to be watching all the time.

[Dame Andrea Leadsom]

Q It is clear to me, having done a visit with enforcement officers, that some so-called specialist vape shops and some newsagents just have the vapes next to the sweets. It is a free-for-all: you get your bubble gum and your vape there. Is that problematic? Will this legislation mean that enforcement officers shut them down? Will there be enough powers and resources to ensure that this can no longer happen?

Kate Pike: The Bill will have enabling regulations on vapes, with powers and criminal sanctions. That is good, but the specifics around where the vapes are positioned in store will be down to the next stage. We get calls all the time from people saying, “There’s a shop in my area called Toys and Vapes—do something about it!” There is actually no legislation that we can use to tackle that.

If you do not want the vapes next to the sweets, legislate for it. We will enforce what it says in the legislation, but we cannot make it up. People are always saying, “That’s not right,” but we cannot enforce morals. We can only enforce the law, so get it in there. If you do not want the vapes there, for very good reasons, give us legislation and we can enforce it.

[Rachael Maskell]

Q My big concern is the illicit trade around vapes. What further measures would be helpful in the legislation to enable you to do your job? Vapes are clearly a delivery mechanism. We have particularly focused on lung health; I am more concerned about the use of vapes for synthetic drugs, which are available in my community and, I am sure, elsewhere. What more can be done to ensure that we do not see the growth of illicit vapes on our street corners or in our shops?

Kate Pike: Illegal drugs are not a trading standards issue. If drugs are consumed via vape or by injection or rolled up in a roll-up, that is not our issue; that is a police issue. We can only enforce the law around the products where the enforcement is given to trading standards. We have no role whatsoever in illegal drugs in vapes. But there is a huge amount of enforcement around illegal drugs in this country, with the police, and the public health approach, about ensuring that people do not use illegal drugs. However they consume them, it is really important that they are on board—