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

Baroness Penn Excerpts

Monday 2nd November 2020 Grand Committee

Moved by

[Baroness Penn]

That the Grand Committee do consider the Tobacco Products and Nicotine Inhaling Products (Amendment) (EU Exit) Regulations 2020.

[Baroness Penn (Con)]

My Lords, thanks to the cross-party achievements on tobacco control legislation over the past two decades, smoking rates are at their lowest levels on record in the UK and extensive public health gains have been made. However, we cannot be complacent. Smoking still causes over 78,000 deaths each year and is one of the leading causes of preventable illness and premature death in England alone. That is why we have set out an ambition for England to be smoke-free by 2030. We are developing our plans here and will share them as soon as we can.

As noble Lords are aware, the United Kingdom is a global leader in tobacco control and the instrument we are debating today will ensure that we continue our strong commitment to robust levels of tobacco control legislation after the end of the transition period. Through these regulations, we are making the necessary arrangements to implement the terms of the withdrawal agreement and the Northern Ireland protocol in law for tobacco control. This will ensure that tobacco control functions effectively from 1 January.

The 2020 regulations will amend the existing 2019 regulations, which were made in preparation for our exit from the European Union. The amendments made by this instrument to the 2019 regulations will mean further amendments to the way in which the Tobacco and Related Products Regulations 2016 apply in Great Britain and Northern Ireland after the end of the transition period.

The 2020 regulations introduce four main changes. First, it is essential that tobacco and e-cigarette producers provide notification of their products. This ensures that companies comply with legislation on product standards and competent authorities are aware of all the products on the market. In accordance with the Northern Ireland protocol, the European Union’s tobacco products directive will apply to Northern Ireland after the end of the transition period. Therefore, this instrument requires that suppliers of tobacco and e-cigarette products wishing to place a product on the market in Northern Ireland will continue notifying via the EU common entry gate system. As legislated for in the 2019 regulations, those wishing to sell in Great Britain will be required to notify through a domestic system. The domestic system is already developed and will be hosted by Public Health England for tobacco products, and by the Medicines and Healthcare products Regulatory Agency for e-cigarette products. The format and information required for notifying on both systems will be very similar, to place as little burden on industry as possible.

Secondly, to limit the financial burden on industry, this instrument makes amendments to the Tobacco Products and Herbal Products for Smoking (Fees) Regulations 2017 and the Electronic Cigarettes Etc. (Fees) Regulations 2016. The amendments will reflect that, if a producer notifies via both the Northern Ireland and Great Britain systems, they are required to pay only one fee. If a producer wishes to notify in relation to placing products on just one of the markets, the same one fee will be payable. We will, however, keep the fee structure under review.

Thirdly, the instrument amends requirements for picture warnings, which are central to tobacco control. Due to the Northern Ireland protocol, the European Union’s library of picture warnings will continue to feature on tobacco products sold in Northern Ireland. However, our Government do not hold the copyright for the European Union’s pictures for use in a Great Britain market. We therefore require the industry to switch to the picture warnings as set out in Schedule A1 to the 2019 regulations, kindly licensed by the Australian Government free of cost. I would like to highlight to noble Lords that the tobacco industry is already accustomed to supplying different markets with varying packaging requirements across Europe and worldwide.

Lastly, the regulations will amend the sell-through period for existing stock that features the EU picture library on the Great British market, in accordance with the withdrawal agreement. This will allow stock first supplied before the end of the transition period to continue to circulate until it reaches its end user.

This instrument will allow goods to move freely between Great Britain and Northern Ireland, subject to the tobacco picture warning requirements.

Although this instrument will have some impact on industry, we have tried to minimise this as much as possible by communicating with stakeholders in August and making them aware of the legislative changes. We also circulated guidance in October regarding the specific requirements for picture warnings. Public Health England and the MHRA will be publishing detailed guidance on notification requirements for both notification systems later this autumn.

Officials at the Department of Health and Social Care have engaged with the devolved Administrations throughout the development of this instrument, and I am grateful for that positive collaboration.

This instrument is a necessary measure in order to ensure that the withdrawal agreement and Northern Ireland protocol are reflected in law for tobacco control. It is crucial that the robust level of tobacco control currently operating in the UK remains after the end of the transition period, ensuring that we continue to protect the nation’s health. I beg to move.

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[Baroness Penn (Con)]

My Lords, I thank all noble Lords for their participation today. This has been a really good debate on a really important issue. It is crucial that this legislation is in place to ensure that the UK meets its obligations under the withdrawal agreement and the Northern Ireland protocol. The changes will allow a continuation of the UK’s robust tobacco control legislation after the end of the transition period, ensuring that we remain committed to protecting the nation’s health and helping people to stop smoking. I would like to highlight that this instrument is being made under the withdrawal Act, meaning that it is limited to achieving its primary purpose and does not aim to make any significant changes to tobacco control legislation. Nevertheless, I reiterate that the Government remain committed to a smoke-free generation by 2030, and I would like to answer as many of the questions asked by noble Lords as possible in that spirit.

The noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Northover, asked about picture warnings. We consulted international experts and it seems that creating our own picture library would require one to two years for us to produce new and original content that is evidence based. Subject to future proposals after the transition period, we may wish to reconsider this option in the future. For now, I reassure noble Lords that we will work with the Australian Government to look at the rotation of pictures, in line with best practice. I also reassure the noble Lord that guidance on cropping has been circulated to industry and was uploaded on 1 October.

I am afraid that I am going to have to disappoint the noble Baroness, Lady Jolly, in that the department will set out its plans regarding where Public Health England’s functions to provide the tobacco notification system will sit at a later date. She also raised the question of novel tobacco products; the DHSC currently holds responsibility for policy and legislation in that area. However, I reassure the noble Baroness that the changes coming to Public Health England in future, and the new body that will be established, in no way diminish our commitment to tobacco control and to delivering a smoke-free England.

I say to the noble Baroness, Lady Thornton, that I was surprised when I saw the detail of regulation in this area. We are aware of the issue that she raised about free samples, and it is our understanding that this was an isolated incident. The current regulatory framework for e-cigarettes aims to reduce the risk of harm to children and other young people—but I would happily meet her to discuss the regulation of this in further detail. We do not think that it is a widespread problem, but the DHSC will review the regulatory framework in future to see whether there is a public health concern that needs addressing.

The noble Lords, Lord Hunt and Lord Rennard, asked about the post-implementation review of the Tobacco and Related Products Regulations. I can confirm that this will take place by 20 May 2021. The response to the consultation on nicotine products will be published soon. I am afraid that I do not have more specific timings for the other reviews that we have undertaken or the Government’s response to them.

The noble Lord, Lord Berkeley, raised the risk of smuggling. There will be no difference from 1 January in tobacco duties. They cover the whole of the UK, so we do not see an increased risk of smuggling after the end of the transition period. The noble Lord is correct to say that vape stores will be closed during the coming lockdown as non-essential retail stores. However, products will be available in supermarkets and other shops that are classed as essential retail and stock these products. I agree with him that the banning of smoking in the Palace of Westminster is way above my pay grade.

The noble Baroness, Lady Northover, asked me about pack inserts and about a letter that went from the Secretary of State for MHCLG on smoke-free areas outside cafés and restaurants making use of table licensing. I remember that issue coming up in debate and discussion on the Business and Planning Bill. Perhaps I could write to her on those issues.

The noble Lord, Lord Hunt, asked some specific questions on notification. My understanding is that if a product was notified before the end of the transition period, it will not need to be notified again afterwards. I will write to him on a couple of the more detailed points that he raised.

To conclude, I reiterate that the Government remain committed to a smoke-free generation by 2030. We are exploring policy options to work towards this ambition, and we will announce more of these in due course at a later date.

Motion agreed.