Tobacco and Related Products Regulations 2016

Lord Brabazon of Tara Excerpts

Tuesday 10th May 2016 Grand Committee

[Viscount Ridley (Con)]

My Lords, first, I apologise for springing this debate on my noble friend the Minister, in particular, at such short notice right at the end of a Session, but he will appreciate why this is an urgent matter. In 10 days’ time, the EU tobacco products directive may become law through a negative statutory instrument recently laid before this House. I emphasise right at the start that I have no problem with most of the regulations—just the parts relating to e-cigarettes and vaping, which are essentially Parts 6 and 7. My Motion is a little vague on that; the original draft was a little more specific.

As noble Lords will know, it has long been my view that the directive scores an own goal by bringing in measures that would discourage the take-up of vaping and thereby drive people back to cigarettes or prevent them quitting. However, it is not just I who take that view. Increasingly, it is the view of Public Health England and of the Royal College of Physicians, whose recent report on this topic is, I think, a game-changer in this debate. So I am here, at the 11th hour, to help my noble friend prevent a historic mistake being made, or at least to raise the issue. In passing, I note that I have nothing to declare: I own no shares and take no income from anything related to vaping or smoking.

The horrific death toll from smoking—100,000 of our citizens die every year—has, I suspect, touched the lives of many in this Room. It is the biggest cause of preventable death on a scale that is hard to comprehend: it is a Hillsborough every eight hours. It is a scourge that deserves the very best of technical ingenuity and policy-making skills to solve.

Vaping offers, as the Royal College of Physicians said, a great opportunity to apply to smoking the principle of harm reduction—an idea pioneered in this country. When people behave in harmful ways, how do you stop them? You can punish them in the hope of deterrence, as we do with murder and fraud; you can hector them, as we do with alcohol and sugar; or you can try to offer safer alternatives, which is how we tackled HIV infection and heroin addiction in this country in particular, and it is how I believe we should now deal with tobacco. In the case of addictions, where people find it genuinely very hard to resist temptation, harm reduction surely makes sense.

Britain is probably the world’s leading vaping nation. Virtually all of South America has banned the practice entirely, at the behest of the tobacco industry. In America, it is largely demonised and quite a lot of people do not know what it is. Almost all the 2.6 million vapers in Britain are smokers or ex-smokers, and the quit rate for those who try vaping is faster and greater than it is with nicotine replacement therapies or cold-turkey cessation. In other words, this is a public health revolution, and it is costing the taxpayer nothing. By saving smokers a fortune, rewarding entrepreneurs and averting ill health, it is boosting the economy.

However, we have before us a piece of legislation that strangles that breakthrough in red tape. It is the product of big-company lobbying and back-room deals in Brussels. It is legislation which last month the Department of Health admitted, in its impact assessment, risks increasing, not reducing, the amount of smoking. I hope in his remarks today that the Minister will be fully candid and accept that this part of the directive is a mess which does not deserve defending but does need ameliorating. I have alerted him already to three specific matters on which I seek clarity.

First, given that the Royal College of Physicians last month told the Government that they should promote vaping to smokers “as widely as possible”, what new, emphatic and unambiguous statement will the Minister make in support of vaping?

Secondly, given that the department estimates that the tobacco products directive rules will ban 90% of advertising that would have helped to promote switching, what budget has the department specifically set aside for a public information campaign to encourage smokers to move to vaping, as the royal college and Public Health England both want?

Thirdly, given that the regulatory burden that the department is about to place on the industry is so extreme that his officials estimate—at least, this is the only estimate in the impact assessment—that the number of notifiable products will be reduced by 96%, from 25,000 to possibly as low as 1,000, what expenditure will the department make specifically to reduce the cost of the onerous testing regime on the industry?

I would ask the Minister to avoid repeating the erroneous suggestion his officials have been making that any of the £13 billion of public health benefits that his department surmises will come from the tobacco products directive would be the result of Article 20, or Parts 6 and 7 of these regulations. In the table set out on page 45 of the impact assessment, the department has not been able to quantify a single benefit from vaping regulation.

Let me put this in a little context. At the beginning of this decade, attempts to reduce smoking were stalling. We had taxed the habit to the point where the main beneficiaries were black market traders, we had barred smoking from every public building, and nicotine patches were proving unpopular with smokers. Then along comes a technical breakthrough, thanks to a man who I have met named Hon Lik, working in central China. It was something that gives a nicotine hit in the same fashion as smoking but is far safer and cleaner. It is a fantastic piece of luck, or rather ingenuity. As the Prime Minister told the other place in December, vaping has now helped more than 1 million people in this country to stop smoking altogether.

How safe is vaping? We know that concentrations of harmful and potentially harmful constituents such as carbonyl compounds, tobacco-specific nitrosamines, polycyclic aromatic hydrocarbons and other constituents are in the order of 1,500 times higher in cigarette smoke than in vapour. A well-controlled trial has recently been carried out by Dr Grant O’Connell and colleagues working for the vaping manufacturer Fontem Ventures. They asked 15 smokers to give up altogether for five days, 15 to vape only for five days, and another 15 to mix vaping and smoking for five days. They measured the harmful and potentially harmful constituents in the urine, blood and breath of each group, and the results were striking. After five days, the vapers’ carboxyhaemoglobin levels—an indication of how much carbon monoxide they had in their systems—had dropped by 83%, which was an even bigger drop than in the cold-turkey cessation group, whose levels dropped by 75%. Even the dual users had seen a drop of 23%. The amount of carbon monoxide they exhaled had halved in both the vapers and the cessation group. Much the same was true for all the other biomarkers except, of course, for nicotine.

In other words, in terms of harmful constituents vaping is almost indistinguishable from not smoking at all. Both Public Health England and the Royal College of Physicians agree that it is much safer than smoking. As far as we can tell, nicotine addiction without smoking is about as dangerous as caffeine addiction.

Vaping is therefore a public health triumph that the Department of Health has, to its extreme shame, done its utmost to block. In 2010, the department’s medicines regulator, the MHRA, tried to ban vaping devices completely. In 2013, the agency—which is financed largely by the pharmaceutical industry—tried to insist that every e-cigarette should be licensed as a medicine. This would again have amounted to a de facto ban. After six years of trying, the agency has so far only managed to license one e-cigarette, which is still not available to the public. If the Department of Health had had its way, there would not be 25,000 varieties of vaping product on the market today, but zero. The only winners from the Department of Health’s policy prescriptions would be undertakers.

Thankfully—and my noble friends will know how painful it is for me to say this—the European Parliament voted down the folly of exclusive medicinal regulation, but it did not vote down the rest of Article 20 of the tobacco products directive which, in that wonderfully undemocratic way, is now being forced upon us. The truth is that these regulations were scripted in Brussels by pharmaceutical companies desperately trying to protect the sales of their widely unloved nicotine replacement therapies. What we have before the House is still a piece of legislation that is not fit for purpose. When even the Department of Health says that it risks increasing smoking, we know that we are facing a moral responsibility as legislators to review this in great detail. It most certainly should not just be nodded through.

It is no defence to say that some regulation is required. No sensible person would argue against us knowing what is going into e-liquids and what comes out in vapour. Potential toxins should be tested, as happens with food, cosmetics and other consumer products. But as the department admitted in an Answer to a Written Question, far more adverse incidents are reported by doctors about pharmaceutical nicotine replacement therapies than e-cigarettes. At most, a bit of tidying up of the testing process was needed.

Let me put three more questions to the Minister. The Royal College of Physicians describes the big warning labels that will deter smokers from using vaping devices as “illogical”. Does the Minister agree with the royal college on this?

Secondly, the ban on stronger vaping devices—the ones most likely to wean heavy smokers into vaping—was criticised two years ago by a dozen scientists writing to the Commission, which ignored their advice. Economists now predict that 105,000 extra deaths every year across Europe will result from the ban on stronger devices. Does the Minister agree with this estimate? If not, what is his estimate?

Thirdly, the directive proposes that, to cut down the risks of children starting smoking, it is necessary to create a minimum cigarette packet size of 20, yet it imposes a maximum size for vaping devices. This miniaturisation will raise prices and generate more packaging waste. Where is the logic in making the most successful substitute to tobacco more difficult to use?

The Minister has a choice. He can blame Brussels and say this is now a good reason to quit the EU in order to help people quit smoking—a lot of the country’s vapers, who are natural libertarians, are beginning to take that view and to dream of the day after Brexit when Britain abolishes the tobacco products directive and goes back to pioneering the virtual elimination of smoking and its replacement by something much less harmful. Or, if the Minister does not wish to turn this into a referendum issue, he can have a quick rethink and try to alter the implementation of the directive. We have a statutory instrument before us, about a third of which is devoted to stifling an exciting innovation that is saving lives. I beg to move.

[Lord Brabazon of Tara (Con)]

My Lords, I thank my noble friend Lord Ridley for raising this issue today. Like him, I intend to concentrate solely upon e-cigarettes and vaping. I have no views whatever on the rest of the directive.

Unlike my noble friend, I must declare a major interest in this subject, in that I smoked 20 cigarettes, a packet, a day for the best part of 50 years. I tried a number of different ways of giving up—patches, chewing gum and will-power, none of which worked—until two years ago when I took up using an e-cigarette. I have not had a cigarette since. I am pleased to hear of the health benefits my noble friend has described, which I hope I am now enjoying. I am also pleased that I now have the endorsement of the Royal College of Physicians and Public Health England in my course of action. It is, I believe, recognised by the Department of Health as the number No. 1 tool for helping smokers give up.

I do not know whether my noble friend has the figures—I do not—but I would estimate that 99% of people who smoke e-cigarettes are those who are trying to give up, or have given up, smoking real cigarettes. I cannot believe that anyone would start using an e-cigarette if they had not smoked an ordinary cigarette beforehand. Maybe some people have, but I do not know.

I can also tell the Committee that it is extremely good for the pocket, as well as the health, in that 20 cigarettes now cost something like £9 a packet, a large amount of which goes to the Treasury of course. I was spending £9 a day on cigarettes, whereas now I use a nicotine liquid, which comes in a 10 millilitre bottle, costs £5 and lasts me a whole week. So it is very good for my pocket.

I understand that nowadays a large proportion of cigarette smokers come from the lower-income categories of people and therefore it would be of great benefit to them if they were able to give up smoking cigarettes. I hope my noble friend can confirm that the type of nicotine liquid I use—which is 1.1% in 10 millilitre plastic bottles—will not be banned by this new regulation.

This directive was dreamt up in 2012, quite a long time ago before I—and, I suspect, most people—had heard of e-cigarettes. Like a lot of things that come from Brussels, it has not been adapted to the facts, including the fact that e-cigarettes are now recognised as a good thing. I hope my noble friend can assure me that he will do all he can to limit the damage that this directive might have on people who are trying to give up smoking.