Tobacco and Vapes Bill

Baroness Fox of Buckley Excerpts

Tuesday 24th February 2026 Lords Chamber

[Lord Udny-Lister (Con)]

My Lords, the purpose of my amendment to Clause 10 is simply to ensure that heated tobacco products are explicitly addressed within the age of sale framework. I am strongly of the view that, when Parliament seeks to regulate a product, it must define it clearly. As other noble Lords have repeatedly mentioned, there is still a high level of inconsistency and ambiguity in this Bill, which renders it fundamentally flawed unless many of these amendments are supported over the next few days. Both retailers and trading standards officers require certainty when it comes to product classification, and a clear statutory definition would avoid later confusion, reduce the overall risk of litigation and strengthen accountability, which must remain the overriding purpose of this Bill if it is to stand any chance of delivering what I believe is the Government’s intended result. In the interest of making the Bill workable on the ground, I hope that this minor change will have your Lordships’ support.

My amendment to Clause 11 mirrors the approach that I have taken concerning Clause 10. I am again asking for consistency so that, where vaping products are referenced, heated tobacco products are dealt with explicitly. We cannot pass legislation through this House where there is ambiguity. I fear that, if these points are ignored, the Bill will lack the clarity required to make it practically enforceable. As such, we in this House will be placing a grave, unfair burden upon those in enforcement. Furthermore, we will be creating unfairness for compliant businesses, which comes with the not inconceivable risk of pushing retailers towards the temptation of rogue and illicit trading. We need to legislate coherently across product categories rather than allow voids to undermine the objectives that the Government are seeking to achieve.

I will speak now to Amendments 87, 89, 90, 101, 113, 189 and 190 in my name. I wish to ensure that the phrase “or consumed in any other way” is removed and that a clear definition of heated tobacco is inserted. It is important to note that heated tobacco does not burn tobacco; it heats it. This is important as evidence indicates lower toxicant exposure compared with that of most cigarettes. If future adult access is to be prohibited, this decision must be based on proper assessment and evidence, which is lacking at this time. The purpose of Amendments 189 and 190 specifically is simply to insert some precision into the Bill. These amendments replace “consumed” with “smoked” and remove reference to heated tobacco devices. I put it to your Lordships that “consumed” is excessively broad. Through slightly better drafting, we can protect businesses, enable better enforcement and protect the courts from uncertainty. I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I commend the noble Lord, Lord Udny-Lister, for helping to differentiate products and for having some precision in the way we discuss these issues. I have been concerned throughout about a one-size-fits-all approach. I do not think it helps anyone. It certainly does not help in relation to health, let alone retailers and so on, as has been described.

Heated tobacco should not be conflated with vapes, but it should also not be conflated with smoking cigarettes or tobacco in that sense. As the noble Lord explained, heated tobacco products are heated, not combusted. That means that, although they might have some degree of harm, there is a body of evidence that shows that there is a huge reduction in harmful products from heating tobacco rather than smoking tobacco. This matters to me because a lot of people use heated tobacco as a smoking cessation tool, as a form of giving up smoking.

When I have raised issues concerning the evidence on heated tobacco, I have been told that the problem with that evidence is that it is based on research produced by the tobacco industry rather than by independent researchers. I point out that, none the less, it is scientific evidence and can be tested as such, whoever pays for it. But if there is some concern about the evidence, I encourage the Government to consider how they can fund research into the very different types of product we are talking about, rather than simply dismissing any evidence they do not like the look of because of who funds it. We need to have a sense of proportion and should not treat all products the same. As I say, I therefore reject the one-size-fits-all approach. We will have much better legislation if these things are clarified on the face of the Bill and we all know what we are talking about, and do not just lump things under the single heading of “harmful and dangerous”.

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[Lord Udny-Lister (Con)]

I shall talk about the two amendments in my name. First, the Bill does not provide a deterrent; the proposed fixed penalty of £200 is nothing to those involved in this illicit trading and organised criminal activity. It is obvious that the unscrupulous retailers will simply absorb the costs and just continue with what they are doing.

It is worth mentioning at this point—and I have seen this—that when people are selling illegal tobacco it is not under the counter. You can have a nice card with all the different brands laid out for you to pick and choose from. It is very professional: a serious bit of criminality out there. I might add that I do not smoke, but I have seen it with others. That is why I am seeking through this amendment support to introduce a stepped penalty regime, escalating for repeat offenders and enabling referral to national and enforcement bodies where organised criminality may be involved. If we want to stand any chance of cutting down this illicit trade and the sale of tobacco and vapes, enforcement must have real teeth. Without a stepped penalty regime and referral powers, the Bill and the generational ban will be nothing more than symbolic.

Amendment 63 is on the points I have just made about having a more robust and stepped approach to penalty notices. I want to strengthen enforcement further by introducing a new statutory referral duty where a fixed penalty notice is issued. If the Bill does not confront the organised criminal network, it will just continue. We want local authorities to issue fixed penalties, and then to refer the matter to the National Crime Agency and relevant police forces and to share intelligence, which is key. It is further my intention that this amendment place a statutory duty on the NCA and police to investigate whether organised crime, excise or VAT evasion is at scale or other serious offences are involved.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I wanted to speak to two amendments in this group that are about the opposite ends of the retail spectrum. On the one hand, there are law-abiding shopkeepers who need to be given a certain leeway if they mess up at the start of this legislation. At the other end of the spectrum are those open lawbreakers who hide in plain sight.

I added my name to Amendment 63 in the name of the noble Lord, Lord Udny-Lister, which is about giving relevant authorities the discretion to issue a warning notice to first-time offenders. Because this is totally novel and internationally unique legislation, enforcement will be important; but because this is a bit of an experiment, some leeway has to be given to allow it to settle in without criminalising people unnecessarily.

Fixed penalty notices are precisely designed to enable offenders to avoid criminal prosecution and reduce the burden on the courts. That is how they are usually used. I am just worried about the overcriminalisation of shopkeepers via this Bill; it is important to be proportionate and allow that discretion. Allowing trading standards officers to issue warnings to first-time offenders would promote the idea that shopkeepers can learn what the rules are and find out that they have had their warning. I am sure that many initial breaches are likely to be unintentional, and a warning will help a business to understand the rules and allow them not to repeat the mistake, and so on. Therefore, fines are reserved for repeat or serious offences; that is an important way in which to approach this.

In relation to an earlier amendment about communicating what the Bill will do, although I do not necessarily agree with it, it is obviously important that people understand the implications of the Bill when it becomes law. If it passes, which it will, there will have to be quite a steep learning curve for all sorts of different parts of society.

I want to draw attention to something called Local Vape Action, which has just been launched in Maidstone in Kent. It is a local partnership involving retail shops working with the local community and doing education, engagement and enforcement. There are initiatives happening locally where people are trying to say, “We are the good guys; we are the people who are compliant; we’re trying to keep to the rules”. They are trying, for example, to improve the appearance of high streets, making sure that legitimate vape retailers—not the ones that the noble Lord, Lord Moylan, described—want to take some responsibility for not being the rogue traders. I think that is to be commended.

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[Baroness Merron (Lab)]

My Lords, this has been a helpful debate on an issue that concerns us all in this Chamber.

On Amendment 17 tabled by the noble Lord, Lord Moylan, I agree with his desire to take robust action against counterfeit products—I am sure we all do—but I cannot accept the amendment simply because I do not believe it is necessary, not because of specific objections. I heard his invitation for me to continue as I started, but, unfortunately, I cannot do so for this amendment. We believe it is not necessary, as referred to by the noble Baroness, Lady Northover, because protections against trademark infringement are already a matter for existing legislation.

On the point about necessary legislation addressing counterfeit products, which I accept, I say to the noble Lord and the noble Baroness, Lady Fox, that the Trade Marks Act 1994, as we have heard, already provides significant penalties for breaching these rules. They include: on summary conviction, imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; or, on conviction on indictment, a fine or imprisonment for a term not exceeding 10 years, or both. These are significant penalties.

[Baroness Fox of Buckley (Non-Afl)]

In terms of duplication, I argued on the Crime and Policing Bill that it was probably not necessary to legislate for assaulting a shop worker to be against the law, as assaulting anyone is. I asked why there was a specific point about shop and retail workers and was told that this would make a special case of shop workers to emphasise their vulnerability. The point about duplicating laws has never held the Government back before, because they keep doing it.

[Baroness Merron (Lab)]

I must admit that I have a different view. Where we already have legislation covering the specific points we are talking about, as we have here with the Trade Marks Act 1994, there is no reason to go further. The legislation is already working. It is fair to raise the example that the noble Baroness gave, but I do not share her view on that duplication, as it was important specifically to identify shop workers. Maybe we just need to disagree on the duplication or otherwise of legislation.

While trademark protection is not a matter for the Bill, powers in Part 5 will enable the Government to introduce regulations relating to packaging, product safety and product registration. Those who breach these regulations following their implementation may face significant penalties of up to two years’ imprisonment, a fine or both. The penalties broadly mirror the penalties provided by the noble Lord’s amendment, albeit I accept he proposes a slightly higher maximum term of imprisonment of three years instead of two.

The noble Lord, Lord Moylan, raised legitimate points about the scale of the illicit market and also potential connections to other illegal activities. On that point, HMRC and Border Force’s joint illicit tobacco strategy sets out the continued commitment to tackle and disrupt the organised crime groups behind the illicit tobacco trade, a commitment supported by over £100 million of new funding.