Tobacco and Vapes Bill (Eleventh sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Thursday 23rd January 2025 Public Bill Committees

[Dr Johnson]

Clause 100 concerns product safety, which is important. Even when a product is not safe, it should still be as safe as it can be and should contain only those things that are expected. When Lincolnshire police took a sample of vape devices from children from a school in my constituency, they found that many of the vapes contained dangerous ingredients that should not have been in there, including, in one case, I believe, an ingredient banned in the UK for many decades.

Clause 100 is important: the Minister must ensure that items on the market are safe. I come back to the evidence from Dr Laura Squire from the MHRA. She said that licensing a medical product does not mean that it is safe, and that these vapes are not medical products either. I am grateful to the Minister for saying in the last session that he is looking for a new home for the licensing and registration process for vapes and vaping products, because “MHRA-registered” suggests to the consumer that those things are in some way safer and more fully tested than they have been.

Clause 100 suggests very sensible regulation, but it gives the Minister the power to do that without significant oversight, even though the affirmative procedure applies. Since clause 90, all the Bill has done is to confer powers on the Secretary of State to regulate without actually providing a huge amount of detail on the Secretary of State’s intent. One never knows what the intent of a future Secretary of State could be in this regard.

Will the Minister comment on why regulation will be in secondary legislation rather than being detailed in the Bill? I understand the need to be agile and to think quickly to try to stay ahead of an industry that will try to adapt to addict more people to nicotine in other forms, but it would have been possible for the Minister to put much of that detail in the Bill, and to have taken a power in a final clause to amend parts of those regulations by statutory instrument. Most of the intent and most of the regulation would then have been known very quickly, but could be altered and adapted later. Why has the Minister taken the approach that he has, rather than a more up-front approach?

Clause 100(1)(a) requires

“producers or importers to have processes in place”.

Again, this is an important point. Most of these products seem to be made overseas, where of course the UK courts do not have jurisdiction. It is at the point of import, and with regards to the person who is importing, that we may need to be more responsible than with a producer where the items are made overseas.

I also urge the Minister, echoing the point made by my hon. Friend the Member for Farnham and Bordon, to consider online sales. We see already that some regulations that are in place for the real world rather than the virtual world create loopholes for regulations to be circumvented. Clearly, public safety has to be the Government’s first priority. The testing in clause 99 and the product safety regulations in clause 100 are a welcome initiative, but clearly the devil will be in the detail and the detail is not available to us today.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

I am sorry that your croakiness is getting the better of you, Sir Roger, but hopefully you will be on fine form tomorrow for the private Member’s Bills—I am not sure whether the Whips on either side of the House are praying for that.

On clauses 99 and 100, I will go through the questions posed by the shadow Minister and the hon. Member for Farnham and Bordon. It is the responsibility of trading standards to test products if they believe a product contains illegal substances or could contain too much nicotine. Trading standards currently test products on an ad-hoc basis, which is contingent on funding. We aim to establish a testing regime to regularly check that products on the shelves are what they say they are. That will support overall enforcement, will ensure that registered products are safe for consumers and will allow retailers, in both brick-and-mortar establishments and online, to have greater clarity about and confidence in the products that they are able to stock to sale.

It is really important to consider online sales as a growing area. These measures have to be taken within the wider context of clauses and measures that we have already debated, in that any product for sale in the United Kingdom, whether in a shop or online, will have to be registered, and any retailer, whether a shop or online, will have to have the appropriate licences in place. There are clear and substantial penalties for breaching those licensing arrangements, and there are real and substantial consequences for selling products that are not in accordance with the descriptions on the registration of those products. When all of that is put into context, and testing is added in, we believe that this will be a robust regime.

--- Later in debate ---

[Dr Johnson]

Clauses 101 and 102 deal with the treatment of, and matters dealt with by, the 2016 tobacco regulations. Again, they provide the Secretary of State with powers to make regulations. Whether or not that will be done well, we are not really sure at this stage.

I understand the point the Minister made in response to the last debate, and it is of course true that regulations can be different in each part of the United Kingdom. In his discussions with Ministers in Wales, Scotland and Northern Ireland, they may have wished to proceed with regulations after the Bill, rather than to put them on the face of the Bill. However, that does not explain why the Minister has chosen to do the same, and I would be grateful if he could explain his choice to make regulations after the Bill, rather than to put them on the face of the Bill, with the power to modify. I ask particularly because we are now into, I think, the 12th consecutive clause that provides powers to regulate and that offers detail only on what any regulations might or might not say, rather than necessarily on what they will say.

In that vein, clause 101 outlines provisions to allow the Secretary of State to make regulations similar to, or corresponding with, the Tobacco and Related Products Regulations 2016. That is to be done under a new regulatory framework, which would seem to be designed to cover gaps that may exist in the powers under those regulations. Subsection (1) says:

“The Secretary of State may by regulations make provision…that is similar to or that corresponds to any provision of the Tobacco and Related Products Regulations 2016…other than Part 7 of those Regulations”.

Part 7 of those regulations deals with electronic cigarette advertising. The Minister may feel that later parts of the Bill will deal adequately with this point, but I would be grateful if he could explain why that part has been taken out. That is not instinctive, because other aspects of those regulations could be too. What is the reason for excluding that part? Otherwise, I have no particular points to make about clauses 101 and 102.

[Andrew Gwynne]

Clause 101 allows the Secretary of State to make regulations similar to any provisions set out in the Tobacco and Related Products Regulations 2016 —the TRPR, which we discussed in our debate on the earlier clauses—thereby amending them if needed.

In 2016, the TRPR implemented the 2014 EU tobacco products directive. The TRPR deals with the manufacture, presentation and sale of tobacco and related products, including herbal products for smoking, nicotine, vapes and refill containers, as well as smokeless and novel tobacco products. However, it does not regulate all products. As we know, new nicotine products such as nicotine pouches have emerged on the market—we discussed such things in our earlier deliberations—and we currently have no powers to change the regulations. We are also limited in what we can do within the existing powers—for example, on vape packaging.

The Bill builds on the TRPR and allows us to go much further, with new powers on, for instance, packaging and flavour requirements, and new registration powers that could be extended to non-nicotine vapes, nicotine pouches, heated tobacco devices and cigarette papers. As we have ascertained, the tobacco and vaping industries are extremely innovative and have previously attempted to circumvent regulations and exploit loopholes. The clause helps to stop them doing that by allowing us to amend the TRPR if necessary.

Clause 102 enables regulations to be made under powers in part 5 of the Bill to amend provisions in the Tobacco and Related Products Regulations that are within scope of those powers. This is a technical provision because, as I said in the previous debate, we have limited powers to amend the TRPR. For instance, if we introduce new vape packaging requirements using powers in the Bill, the clause will allow us to amend the TRPR if necessary, so that the new packaging requirements fit with those imposed under the TRPR.

The shadow Minister raised issues relating to secondary legislation. The technical and detailed nature of many of the Bill’s requirements means that they are not suitable to be put on the face of the Bill. For example, we may need to amend those requirements in response to market changes. It is also necessary to include detail on the circumstances of when products must be recalled, which will change over time.

There is a broader point here: with all the regulations that we propose to bring before Parliament, we want to get the measures right. We have a statutory duty in the Bill to consult before bringing in regulations, which is in part why we are making the measures in the way that we are. Part 7 of the TRPR is excluded because those things will now be in part 6 of the Bill. I commend the clauses to the Committee.

Question put and agreed to.

Clause 101 accordingly ordered to stand part of the Bill.

Clauses 102 to 104 ordered to stand part of the Bill.

Clause 105

Sub-delegation

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 106 to 111 stand part.

[Dr Johnson]

Clause 105 states:

“Regulations under this Part may confer discretions.”

I confess that I do not understand what that means. I would be grateful for the Minister’s explanation.

Clause 106 is about the power to make provision binding on the Crown, which we have discussed at some length. My only point is on subsection (4), which clarifies that public servants are still accountable under the regulations. Some may have concerns about the enforcement of regulations within Government bodies. Could the Minister say anything further on that?

Clause 107 gives the Secretary of State power to make amendments to this legislation through regulations. It is quite a broad and flexible position: the Government can remove outdated laws that are inconsistent with new regulations established under the Bill and ensure that the regulatory framework can evolve. To some extent, that makes sense. Again, the Government seem to be keen to ensure that they can stay one step ahead of a very adaptable industry and try to protect the country from nicotine addiction. However, the clause is quite broad. I would be grateful if the Minister could further elaborate on his intent in it.

Clause 108 provides for the consequential removal of section 94 of the Children and Families Act 2014 because it is no longer needed. Clause 109 is about enforcement.

Clause 110 is about the consultation process. The requirement to consult before making regulations promotes transparency and accountability in the decision-making process and allows for adjustments and feedback from various groups, in the same way that line-by-line scrutiny of the Bill allows adjustment in line with discussion. It ensures that regulations are fair and based on a broad range of insights and evidence. However, I would be keen for the consultation not to be so long as to delay bringing in the regulations. As I have said before, much of the Bill hinges on the regulations the Government can provide. If the consultation processes are very long and drawn out, it could be a long time before any of these measures come into force to protect our children, in particular.

[Andrew Gwynne]

Sub-delegation allows functions to be carried out by someone who is not named in the primary legislation. We believe that that is vital for flexible implementation of Government policy and to keep the wheels of Government turning. Sub-delegation is a long-accepted part of the legislative process, and having the ability to allow technical experts to undertake technical tasks, or to set out very detailed technical criteria in guidance instead of using parliamentary resource, will allow us to get on with implementing the measures in part 5 of the Bill.

The shadow Minister is right to be concerned about having safeguards to ensure that any sub-delegation of authority is not abused. Sub-delegation to persons must be set out in regulations. As I have previously said, there is also a statutory duty to consult on any regulations made under part 5. The regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.

On the wider consultation the shadow Minister referred to, the Government chose to include consultation clauses because we want valuable input from different stakeholders on our proposals before they are introduced. As is conventional with such clauses in primary legislation, the clause does not prescribe the specific people the Secretary of State must consult. That is to ensure that the Government can consult appropriate stakeholders, and the list may evolve over time.

UK-wide regulations made under part 5 might deal with devolved matters. The UK Government are therefore required to seek consent from the devolved Governments. My Department will continue to work closely with the devolved Governments on proposals for UK-wide regulation of products. I therefore commend the clauses to the Committee.

Question put and agreed to.

Clause 105 accordingly ordered to stand part of the Bill.

Clauses 106 to 113 ordered to stand part of the Bill.

Clause 114

Publishing advertisements

[Dr Johnson]

I beg to move amendment 87, in clause 114, page 63, line 16, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

--- Later in debate ---

[Jack Rankin]

I am going to make some progress. Even judging by the Government’s own standards, we should be treating vaped tobacco and heated tobacco very differently from cigarettes. We should be a little careful about the unintended consequences of this measure, and I hope the Minister can say how he might consult other bodies to look at those unintended consequences.

I have a small concern with the internet services measure in clause 119. Again, it seems that the Government’s aims in this legislation is to prevent targeted communication on vapes and nicotine products to adult smokers, such as via emails or digital channels, which can reach them directly. I understand the point about not wanting to aim such communication at children, but targeted communication, such as using people’s internet search history, could be an effective means of encouraging smokers to quit. I mentioned a few weeks ago the work that NHS Essex is doing with a vaping company, targeted at adult smokers. I do not think the Government, in achieving their aims of a smoke-free generation, should be too prescriptive on this.

[Andrew Gwynne]

I am grateful to hon. Members for our discussion on amendment 87 and subsequent clauses. These amendments intend to make an exemption under the advertisement ban to allow vaping products to be promoted by businesses as a smoking cessation tool for existing tobacco smokers. I am sympathetic to the shadow Minister’s intention behind the amendment to ensure that smokers are encouraged to use vapes as a quit aid. That is why the Bill as drafted will continue to support the promotion of vaping as a quit aid for smokers through the appropriate channels. By “appropriate channels”, I say to the hon. Lady that we mean public health authorities.

[Dr Johnson]

I want to clarify one small point, if I have not made myself completely clear. On a personal level, I do not particularly want people to be persuaded to go from smoking to vaping, because I think it is an alternative addiction that they will get stuck on. I would much prefer them to be directed towards other forms of nicotine replacement therapy, which will be effective and more short lived. However, given that the current medical advice is that vaping is better, I think it is important that it is available.

[Andrew Gwynne]

I get that the shadow Minister is dancing on a pinhead, but she has brought to the Committee a set of amendments for which that would be the purpose. If they are pushed to a vote, I am sure we will have the bewilderment of the shadow Minister yet again abstaining on measures that the shadow Minister has brought before the Committee.

We believe it is for public health authorities to promote vaping as a quit aid for current smokers. For example, local stop smoking services will continue to be able to promote vapes to smokers as a less harmful alternative following the passage of the Bill. We strongly believe that any promotion of vaping as a way to quit smoking is best led and delivered by the appropriate authorities, such as local stop smoking services, public health professionals and the national health service.

The clauses in part 6 of the Bill, taken in totality, will form a complete ban on advertising and sponsorship for tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products, bringing them all in line with tobacco. It is unacceptable that children are exposed to vape adverts on the sides of buses and in shop windows when they make their way to school.

Clauses 114 to 117 make it an offence for anyone

“acting in the course of business”

to publish, design, print or distribute an advertisement

“whose purpose or effect is to promote”

a relevant product within the Bill. Upon conviction, anyone who has committed an offence under part 6 will be liable to a fine, imprisonment or both. These clauses are an essential part of the overall suite of restrictions that will ban advertising of relevant products within the UK. Taken together they will ensure that even if someone has not designed or published an advert, it will still be an offence to print or distribute that advert. This is key to stopping their eventual distribution. I hope that answers the questions about whether there is a loophole allowing adverts produced for international markets to be distributed in the United Kingdom. The distribution of those adverts will be an offence.

Clause 118 makes it an offence to cause the offences I have just set out. It would be an offence if a person “knows or has reason to suspect” that they are causing these things, whereas if someone unknowingly delivered a package containing leaflets, they would not be guilty of the offence. Without this clause, it would be possible to instruct others to publish, design, print or distribute adverts without committing an offence. Clearly, we need to ensure that it is also an offence to cause these things to happen.

Lastly, clause 119 makes it an offence to provide an internet service in the course of a business by means of which an advert for a relevant product is published or distributed. This would mean that an organisation that provides a service to a person—for example, Sky or TalkTalk—would commit an offence if they provided a service that enabled the online advertisements to happen and if they permitted that space to be used to promote relevant products. That could include becoming aware that the service is hosting a vape advert and subsequently failing to take that advert down. This is particularly important, as young people, and some not-so-young—we now know that, if we have a hoof that needs trimming, the hon. Member for Farnham and Bordon is our man, although I am not sure whether he provides the service or just passes the request on—

[Gregory Stafford]

Things haven’t got that bad yet.

[Andrew Gwynne]

Clause 119 is important, as children spend a lot of time online and therefore are more exposed to a variety of internet services. It is unacceptable that a child using the internet to study might be exposed to a variety of vape adverts. We need to take action to stop these products being deliberately advertised to children, to protect future generations from becoming hooked on nicotine.

The shadow Minister’s amendments would in theory allow any shops or businesses to advertise vaping products to existing tobacco smokers. It would be incredibly difficult to target the advertisement of vaping products to current smokers alone, without the risk of children and non-smokers seeing the promotional material. That would not only make enforcement complicated, but make the messaging about the ban inconsistent. Research on tobacco advertising bans has shown that comprehensive bans were significantly more effective than partial restrictions in reducing smoking rates.

Hon. Members has posed a number of questions, which I will address. What constitutes an advert and how will the decisions be made? The Advertising Standards Authority is the regulator, and it will take a proportionate approach. All adverts are captured. Decisions on whether something is an advert will be made on a case-by-case basis, and it is for the ASA to decide. If the purpose or effect of something is to promote a product, it will most likely be captured. I say to the hon. Member for Windsor, “Worry not”: the ASA knows how the internet works, because it is dealing with it daily, and as we speak.

How does liability work? The offence will be charged on a case-by-case basis. In most cases, we expect that this will involve a company. The ASA is experienced in making decisions on tobacco restrictions at the moment, and the provision merely extends the powers and responsibilities that it is already undertaking with regard to a variety of other products. On social media influencers, it depends on how the ASA approaches the matter; if it decides that something is constituted as an advert, action can be taken. Nobody is above the law of the United Kingdom.

The hon. Member for Windsor asked why we are making changes to the law without consulting. To be clear, tobacco adverts are already banned under the Tobacco Advertising and Promotion Act 2002, and the provisions in part 6 of the Bill will simply maintain the existing ban on tobacco advertisements. We were elected with a mandate to carry out our manifesto commitments, one of which was to stop the advertising of vapes to children. We already know that the measures to restrict vape advertising are strongly supported: 74% of adults in Great Britain support banning the advertising and promotion of e-cigarettes at point of sale, at the till, in stores and as people enter shops, and only 6% are opposed.

Does aligning vapes with tobacco in this area contribute to misconceptions that vapes are just as harmful as tobacco? Although the approach towards vapes and towards tobacco will align in this area, our future regulations on other vape measures will be carefully considered so that there is a clear difference between these products. Given that vapes are less harmful than tobacco, we do not intend to treat them in exactly the same way as tobacco. To be clear, there is no more dangerous product that is legally sold in our shops than tobacco—a product that kills two thirds of its users—but we do not want to inadvertently addict a new generation to nicotine. That is the reason for the advertising measures.

Will the ban on the advertising of heated tobacco products increase the demand for traditional cigarettes? The Department’s opinion is that heated tobacco products are covered under the 2002 Act, which prohibits the advertisement and sponsorship of tobacco products. The new definition just ensures clarity on the scope of the legislation, as well as future-proofing policy. This is not a new ban; we believe that the existing tobacco advertising ban appertains to heated tobacco products in any case.

We very much want people to give up all forms of tobacco. That is why this Government have invested a further £70 million for smoking cessation services in the new financial year, and why I maintain that, although we are saying to tobacco companies, “This is as good as it gets,” we will move heaven and earth to shrink their customer base even further with appropriate smoking cessation. With that, I ask the shadow Minister to withdraw her amendment, and commend the clauses to the Committee.

[Dr Johnson]

The Minister knows that I believe strongly that we need to stop people smoking, because of its dangers, and that we need to stop children from taking up any form of nicotine, because we have heard how harmful nicotine is to them. He will also be aware of my argument—which I made in relation to the previous iteration of the Bill—that advertising, marketing and sponsorship should be included to reduce the appeal of the products to children. I support the clauses, but I was keen to debate how smoking cessation services will be able to discuss these products. The Minister has been reasonably, if not absolutely, clear on that, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clauses 115 to 119 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)