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

Baroness Thornton Excerpts

Monday 2nd November 2020 Grand Committee

[Baroness Thornton (Lab)]

We have had a very good discussion. I thank the Minister for her introduction of the regulations and all Members who spoke, who have shown yet again the expertise, interest and commitment that there is in the House on this subject, and why tobacco regulation has always been close to the hearts of many noble Lords.

I think all the questions on picture warnings have been covered by noble Lords, so I do not intend to repeat those. I am, however, going to draw the Committee’s attention to what I think is a significant loophole in the legislation being amended by this statutory instrument—one which needs urgent consideration.

In effect, while it is illegal for e-cigarettes to be sold to children under 18, according to advice from trading standards, it is not illegal for them to be given out as free samples to anyone of any age. This is because e-cigarettes are not covered by Section 9 of the Tobacco Advertising and Promotion Act, “Prohibition of free distributions”, as they are not a tobacco product. Meanwhile, the age of sale regulations contained in Regulation 3 of the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015 inhibit their sale only to those under 18. While the Tobacco and Related Products Regulations 2016 prohibit packaging or vouchers offering free or discounted products, they do not prohibit the handing out of free e-cigarettes in Regulation 38(4).

A recent article in the Observer highlighted that a supplier working on behalf of British American Tobacco had been caught handing out BAT’s popular e-cigarette brand Vype to a 17 year-old without carrying out any kind of age check. This clearly contravenes the spirit of the existing regulations, which set the age of sale at 18 to protect children from using e-cigarettes. While evidence shows that e-cigarettes are likely to be significantly less harmful than tobacco cigarettes and can be effective in supporting adult smokers to quit smoking, it is of course absolutely vital that children are prevented from taking up vaping because, while it is a lot less harmful than smoking, it is not risk free.

Allowing the tobacco industry to market its products to children not only undermines the Government’s ambition for a smoke-free 2030 but threatens the availability of e-cigarettes for use by adults who want to quit smoking. E-cigarettes clearly have a role to play in reducing the burden of death and disease from smoking, which falls on the poorest in society and still kills almost 100,000 people a year in the United Kingdom. The Government must commit to revising the regulations to remove this serious loophole in the law. I am sure that the Minister would agree that the UK does not want to go the way of the United States, where in 2019 12% of high-school students reported using e-cigarettes on a daily basis, compared with only 1.6% of 11 to 18 year-olds using them regularly in Great Britain.

BAT would no doubt argue that this was a one-off and that it is serious about preventing underage access to vaping products. However, I have to say that it is another example of big tobacco saying one thing and doing another. The tobacco industry, and BAT in particular, has a track record of trying to get around legislation designed to protect children across the world from tobacco company marketing. In 2019, BAT was investigated by the Advertising Standards Authority for promoting its Vype e-cigarettes to young people on social media. There, the company used Instagram hashtags completely unrelated to Vype or its product features to link Vype to significant cultural and popular current events. That meant that anyone, including children and young people, searching for things such as the 2019 Oscars, the best actor, the BAFTAs or London Fashion Week, would have seen promotions for Vype e-cigarettes.

One BAT Instagram post included the hashtag #LilyAllen, which includes nearly 83,000 Instagram posts and could be seen by anyone searching for #LilyAllen on the platform. This was described by the Campaign for Tobacco-Free Kids as a concerted, consistent, systematic approach to BAT’s online promotion of its Vype nicotine e-cigarettes, outside the guidance and the Tobacco and Related Products Regulations 2016. The ASA subsequently ruled that BAT’s celebrity-driven ads

“clearly went beyond the provision of factual information and was promotional in nature”.

It has been proved beyond doubt that the tobacco industry, over many years, cannot be trusted to self-regulate and will inevitably exploit any loophole in the regulations, so can the Minister commit that the Government will revise the regulations to prevent tobacco companies marketing their addictive products to children and young people? I would appreciate the opportunity to meet her to discuss this in further detail, including what more can be done to protect children from big tobacco.