Tobacco Products and Nicotine Inhaling Products (Amendment) (EU Exit) Regulations 2020

Baroness Jolly Excerpts

Monday 2nd November 2020 Grand Committee

[Baroness Jolly (LD) [V]]

[Inaudible]—necessitated this draft instrument. It also necessitates additional plans from the agencies responsible for the enforcement of the legislation under discussion, notably Public Health England, an agency that itself is facing an uncertain future.

Public Health England is currently the designated UK competent authority for the notification of novel tobacco products. The Government’s decision to close Public Health England mid-pandemic, and at a time when we are working through the complexity of leaving the EU, is astonishing. The lack of current detail on where key responsibilities discharged by PHE will go is extremely concerning. These regulations require the producers of products coming to the UK market to notify Public Health England against a mandated set of criteria, including information such as ingredients and emissions, as well as an obligation to share their existing research on the products. This is important information about novel tobacco products entering the UK market, yet it is unclear where these responsibilities will sit once Public Health England closes.

The lack of clarity around the responsibilities discharged by Public Health England with respect to the Tobacco and Related Products Regulations 2016 raises the risk of poor compliance by business and enforcement gaps in the Government’s response. I therefore ask the Minister to urgently provide clarity on where these functions will sit and provide assurances that public health experts will continue to have oversight of this process and that the population impacts of these products can be properly considered and effective advice provided to Ministers.

However, the current system is far from perfect and the change brought about by leaving the EU and reforming our public health system creates an opportunity to make improvements. In 2018, Philip Morris International reported that it had spent $4.5 billion since 2008 developing smokeless tobacco products. It currently costs producers £200 to submit a notification of a novel tobacco product. The low fees inevitably mean that the system is underresourced. Fees should be set that allow for products to be independently tested and assessed. Will the Minister consider making such changes to improve the effectiveness of the system?

But what of the role of Public Health England, which currently provides advice on tobacco and nicotine? Its role in these matters extends beyond the issue of novel tobacco products: it also played a key role in generating the evidence needed to effectively review these regulations.

In the House on 14 September 2016, the noble Lord, Lord Prior, said:

“The Government will continue to monitor and develop this evidence base, adapting policy accordingly, to ensure that policy on e-cigarettes best supports the protection and improvement of public health.”—[Official Report, 14/9/16; col. 1537.]


What steps have been taken? This work has been undertaken by Public Health England in the interim years through a series of world-class reports that were commissioned from experts. We have been provided with a solid foundation of evidence on which to review the impact of regulations, as well as policy advice for front-line staff on how to respond to this fast-moving area of public health. Again, I ask the Minister: where will these vital functions go in the future? Will there be evidence reviews into the impacts of e-cigarettes?

My key point on the impact of leaving the EU on these regulatory changes relates to flavoured tobacco. All characterising flavours for tobacco, bar menthol, were banned across the EU from May 2017, when menthol products were given a further three years to comply. Ahead of the ban for menthol coming into force in May, Imperial Tobacco launched a new green filter product range. Retailers were encouraged to stock this range, which allowed them to retain menthol customers. Accusations have been made that these products still have a characterising flavour of menthol. Japan Tobacco has similarly been accused of developing products that break the rule banning characterising flavours.

However, determining whether or not a flavour is characterising requires expert analysis. This is currently the responsibility of an independent advisory panel, set up by the EU to assist member states and the Commission in determining whether or not a tobacco product has a characterising flavour. Following our exit from the EU, it will be for Public Health England, as the competent authority, to take on this function. However, with Public Health England due to be abolished in spring 2021, which body will take over this function? I would be grateful if the Minister could provide further details on this.

Before we conclude this debate, it is worth taking a look at the effect of the legislation on Northern Ireland, which has been used to working with the Republic. Tobacco products came freely across the border, as did many other products. I sit on the environment Select Committee and we have spent many sessions looking at how the Republic and Northern Ireland will work next year. Much has been said about warning photographs in this debate, so I will not pursue that particular area. However, looking 10 or 20 years hence, I wonder what will be made of this decision, and others like it in all areas of trade in Northern Ireland. I also worry whether, in the end, Northern Ireland will acknowledge that the situation it finds itself in is untenable and decidej to leave the union. As a unionist, I would be hugely sad about that, but I really would understand. Time will tell.