Tobacco and Vapes Bill (Seventh sitting)

Andrew Gwynne Excerpts

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

Clause 15 makes it an offence to give away or discount any vape product. That is important because discounts encourage us to buy more things. That is what they are there for; it is what promotions are for. They encourage us to buy things that we did not want or need. We do not want people to consume excessive quantities of vapes that they do not want to have, but that does happen. A cursory glance on the internet shows that numerous websites are advertising vape discount codes and vouchers offering 10% or 15% discounts on vapes, as well as giftcards that are readily available for online purchase. The clause therefore replaces section 9 of the Tobacco Advertising and Promotion Act 2002 and extends its scope, as there are currently no restrictions on businesses freely distributing nicotine and non-nicotine vaping products, cigarette papers and herbal smoking products.

In 2023 the former Prime Minister, my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak), created an illicit vapes enforcement squad, backed by £3 million. It was designed to close the legal loophole that allowed the vaping industry to provide free samples of vapes to be distributed regardless of consumer age. That was patently unacceptable, and I welcome the action that the previous Government took on the issue. I point out that giving away vapes was pretty common. In fact, my own parliamentary staffer went to a promotional event on vaping held in Parliament itself, in this very House, and was given free samples of Vuse vapes. I have been made aware by staffers that similar events take place outside Parliament, so I think that this is a useful clause and I will support it.

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

It is a pleasure to serve under your chairmanship, Sir Roger. May I start by not only thanking the shadow Minister for her support, but congratulating my hon. Friend the Member for Dartford on his birthday? [Hon. Members: “Hear, hear!”] It is a real pleasure that we are able to provide him with a full day’s entertainment—better than Netflix.

[Jim Dickson (Dartford) (Lab)]

I thank the Minister very much for his birthday felicitations. There is nowhere I would rather be than here.

[The Chair]

I only hope that is not open to challenge.

[Andrew Gwynne]

I was just about to say, Sir Roger, that might be one thing that we have to divide on later. I wish my hon. Friend the Member for Dartford all the best for today and hope that he gets home in reasonable time to enjoy with friends and family what is left of his birthday.

I thank hon. Members for their speeches on these clauses today and earlier this week. The Government have two objectives on vaping. The first is to tackle youth vaping. Too many children are vaping and vapes are attractive and accessible to them. The Bill will bring about definitive and positive change to prevent future generations from becoming hooked on nicotine. The second objective is to support adult smokers to access vapes to help them to quit smoking. As the chief medical officer says:

“If you smoke, vaping is safer; if you don’t smoke, don’t vape; and the marketing of vapes to children is utterly abhorrent.”––[Official Report, Tobacco and Vapes Public Bill Committee, 7 January 2025; c. 11, Q8.]

I concur with that entirely.

In support of those aims, the clauses do not apply to licensed medicines and there is a defence available when any free vaping or nicotine product is given out in accordance with arrangements made by a public health authority or a public authority. That means that smoking cessation services will be able to continue to support adult smokers to quit smoking, for example by providing free smoking cessation quit aids where appropriate. That includes our national swap to stop programme that continues to help smokers move from cigarettes to vapes.

I also stress that we will continue to work with the Medicines and Healthcare products Regulatory Agency to support applications from industry for vapes as a licensed medicine. As Dr Laura Squire, the MHRA chief healthcare quality and access officer, stated in the evidence session, there may be progress in this area. I hope that that assures hon. Members that we continue to take a balanced approach to vaping, both through the measures in the Bill and our wider work on tobacco control.

More generally, the clauses make it an offence to give away any tobacco, herbal smoking, vaping or nicotine product as well as cigarette papers if the purpose or effect is to promote any tobacco, herbal smoking, smoking-related, vaping or nicotine product to a member of the public of any age—for England and Wales, in clause 15, for Scotland, in clause 62, and for Northern Ireland, in clause 80. The maximum penalty for the offence will be imprisonment for up to two years, a fine, or both.

The clause also extends to coupons and vouchers and to selling a product at a substantial discount. These measures mean that disreputable actors cannot bypass the restriction by offering a free voucher for a product instead of a free product. The clause also covers products that promote any of the aforementioned products—for example, t-shirts with vape company branding to promote vapes cannot be freely given away. On discounts, we are only prohibiting substantial discounts, so we can make sure that businesses cannot heavily discount products to the point at which the price is no longer relevant. Businesses can still discount products if they choose to. Clause 62 also includes a power for Scottish Ministers to create additional defences.

It should never have been the case that addictive nicotine and vaping products could be legally handed out for free. This is one of the many avenues by which industry is addicting our children. It is for these reasons I commend the clauses to the Committee.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Prohibition of retail sales of tobacco products etc in England without a licence

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

[The Chair]

With this it will be convenient to discuss the following:

Schedule 1.

Clauses 17 and 18 stand part.

Schedule 2.

Clause 19 stand part.

Schedule 3.

Clauses 20 and 21 stand part.

Schedule 4.

Clause 22 stand part.

Clause 85 stand part.

Schedules 11 to 13.

--- Later in debate ---

[Sarah Bool]

My hon. Friend makes a valid point. We do not want the introduction of this legislation to lead to any overburdening. We do not want the smaller convenience stores that are trying to operate to be challenged and put out of business. We want this to be a very practical measure so I agree that would be something to look into. I wonder whether the Minister might offer any further thoughts on that.

[Andrew Gwynne]

I thank Members for their contributions.

Clauses 16 to 22, clause 85, and schedules 1 to 4 and 11 to 13 establish powers for Ministers in England, Wales and Northern Ireland to introduce a licensing scheme for the retail sale of tobacco, vaping products, nicotine products, cigarette papers and herbal smoking products. There is currently no requirement for a business to obtain a licence to sell these products, which is a major gap in enforcement. This gap is hard to defend since the sale of products such as alcohol does require a licence, while tobacco—the single biggest preventable cause of death, disability and ill health—does not. Vaping and nicotine products also carry, as we have heard, a significant risk of harm and addiction.

Introducing a licensing scheme will strengthen enforcement of the law, acting as a deterrent to rogue retailers who breach sales regulations, supporting legitimate businesses and ultimately supporting public health outcomes. Retail licensing is a highly popular intervention, as the shadow Minister helpfully pointed out, because the polling shows that 81% of retailers and 83% of the public are supportive of tobacco retail licensing, and it is one of the most popular tobacco interventions surveyed.

Clause 16 establishes that an individual in England is required to hold a personal licence in order to sell tobacco, vaping products or nicotine products, expose those products for sale, and possess products for sale. The clause also establishes that a person must have a premises licence for any premises in England used for the storage, exposure or supply of a relevant product to a retail customer.

The clause provides for a discretionary power for the Secretary of State to make exceptions by regulations to the requirements for a personal or premises licence. This will enable regulations to appropriately account for all possible types of retail. The Secretary of State in England must, by regulations, make provisions for how licences are to be granted and must conduct a consultation before regulations are introduced. The scheme will be commenced by regulations.

I hope that in part answers the question posed by the hon. Member for Farnham and Bordon, because we want to ensure that the licensing regime is fit for purpose not just for bricks and mortar businesses, but for online business.

[Dr Caroline Johnson]

Will the Minister address under which part of the legislation regulations will be made in Scotland?

[Andrew Gwynne]

I will come to Scotland in due course.

Schedule 1 establishes the framework for the regulations. It establishes that the licensing authority will be the local authority, and defines the relevant types of local authority that regulations could establish as the licensing authority. In answer to the shadow Minister’s question, given that there is likely to be local government reorganisation in the future, it will be, and will remain, the responsibility of the outgoing local authority that is the licensing authority to continue the licensing function up to the date that the new local authority comes in, out of a shadow form.

The usual practice in local government reorganisation is that a shadow local authority is in place for a year in advance. It sorts out restructuring and necessary background work, with local members who were elected to the shadow authority becoming the members of the new local authority on the commencement date. That was true of the Local Government Acts in 1972 and 1996, and it has been true of local government reorganisations since. I have no reason to believe it will not be true of the next set of local government reorganisations. For a period of time, the outgoing local authority will be the licensing authority because it is the local authority until the date that it moves to new arrangements. From day one of the new arrangements, the new authority will be the licensing authority.

[Dr Johnson]

Some areas have a unitary authority, some have a unitary authority and a mayor, and some have restricted county councils. As local reorganisation occurs, how will the tier of local authority that has the competency and duties under this legislation be defined?

--- Later in debate ---

[Andrew Gwynne]

Where we know an area is moving from a two-tier to a unitary authority, the clue is in the name: the unitary authority will be the licensing authority because there will be only one local authority covering that area.

[Gregory Stafford]

I am sure the Minister has much greater understanding of his own Government’s policy, but my understanding is that there will be some devolution of powers to parish and town councils. Will they potentially become the licensing authority when there is a downward devolution of power?

[Andrew Gwynne]

No. The local authority, not the parish council, would be and will remain the licensing authority, as is the case at the present time. Notwithstanding that there may be a quasi-additional tier in the form of a mayor and a combined authority, where areas move from a two-tier to a unitary authority, it will be the local authority that is the licensing authority. That is what happens in my constituency in Greater Manchester, where we have effectively had unitary authorities since the metropolitan county council was abolished in 1986. Tameside metropolitan borough council and Manchester city council are both unitary authorities. They are both the licensing authorities for their respective parts of my constituency, even though we have a Greater Manchester combined authority and a Great Manchester metro mayor. I hope that clarifies the issue.

Schedule 1 also establishes that regulations may make provisions regarding the granting, duration, renewal and revocation of licences, and enables the licensing authority to charge a fee for the granting of a licence. In response to the point raised by the hon. Member for Windsor, the fee structure may be set at a level that takes into account administration and enforcement costs. The local authority will be able to use the fee to help cover the cost of granting licences and enforcing the scheme. That is the closest I can get: we intend it to be cost-neutral for the purpose of operating the scheme.

Schedule 1 establishes that regulations can place conditions on the licence. Retailers that breach those conditions will be subject to civil financial penalties. Regulations may make provision for licensing authorities to publish information about licences, such as the addresses of licensed retailers, and, to maintain fairness, regulations must include an appeals route, so that retailers can, for example, appeal decisions on the granting of a licence. Finally, regulations may require that a licensing authority must consider guidance published by the Secretary of State to support the smooth implementation of the scheme.

Clause 19 and schedule 3 establish the same power to introduce a licensing scheme in Wales, with the same framework for the regulations. The schedule establishes the licensing authority in Wales to be the council of the county or county borough. Clause 85 achieves the same in Northern Ireland by inserting a new clause into the Tobacco Retailers Act (Northern Ireland) 2014, while schedule 11 establishes the same framework. In Northern Ireland, a council will be the licensing authority.

Clause 17 creates offences in relation to the licensing scheme in England. It makes it an offence to sell, expose for sale, or possess for the purpose of sale any relevant products without, or not in accordance with, a personal licence. The clause also makes it an offence to use a premises in England for the storage of relevant product for the purpose of retail sale, the exposure for sale, or the supply of any relevant product to a retail customer without, or not in accordance with, a premises licence, and knowingly to provide materially false or misleading information in a licence application.

Anyone found to be committing a licensing offence may be issued with an unlimited fine on conviction. As an alternative to prosecution, trading standards may issue a £2,500 fixed penalty notice, which is an on-the-spot fine. Regulations can confer on courts a discretionary power to suspend or revoke a licence on conviction. The court may order relevant product to be forfeited and destroyed, to prevent a business from continuing to sell or unlawfully selling product.

Clause 20 establishes the same licensing offences in Wales, and clause 85 establishes the same licensing offences in Northern Ireland. In Northern Ireland, district councils will enforce the licensing scheme. People convicted of a licensing offence face a fine of up to £5,000. As an alternative to prosecution, councils in Northern Ireland can issue a fixed penalty notice, the value for which will be determined in regulations.

Clause 18 creates civil financial penalties for breaches of licence conditions in England, to ensure that licensed retailers continue to follow the rules. Breaching conditions is a civil matter, not dealt with by the courts. The value of the civil financial penalty cannot exceed £2,500. The clause also provides a limited and specific power to update that value to account for inflation, to ensure that the value remains relevant. A civil penalty cannot be issued if the breach of the licence condition already constitutes a licensing offence. That is to ensure that someone cannot be subject to double punishment for the same licence breach.

[Dr Johnson]

The power to increase the fine is in line with inflation, but if evidence over time showed the Minister that the fine was not adequate to deter the offence from taking place, the Government might wish to raise it by more than inflation, to provide a greater deterrent. Would it be wise to make the power more flexible?

[Andrew Gwynne]

As I have said during previous outings in the course of this Committee, the Bill merely rolls over the existing fines. We would need to do a much more complex piece of work to uprate the fines beyond the current values, plus inflation. That is not what the Bill seeks to do; we do not want to overcomplicate it.