Tobacco and Vapes Bill

Caroline Johnson Excerpts

2nd reading
Tuesday 26th November 2024 Commons Chamber

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

Prevention is better than cure. As we have heard, smoking is a cause of many premature deaths and much serious ill health. That was why the previous Government introduced legislation to tackle it and restrict access to tobacco purchases for those born after 1 January 2009. This Bill builds on many measures in the previous one.

As we have heard, this is a Bill of two parts: tobacco and vapes. Those two parts have been received differently, a bit like Marmite and chocolate spread—part controversial, part pretty universally liked. The section on smoking and tobacco has proved to be a bit like Marmite—some people have liked it. My hon. Friend the Member for Harrow East (Bob Blackman) spoke eloquently of his passion for stop-smoking measures, his successful campaigning, and the previous Government’s success in reducing rates of smoking. My hon. Friend the Member for North Dorset (Simon Hoare) spoke eloquently about the balance between libertarianism and choice, and the need for order, societal norms and the protection of others in society. The hon. Member for City of Durham (Mary Kelly Foy) spoke about the dangers of smoking and the difficulties and challenges for people trying to quit.

On the other hand, other Members expressed concern about the Bill. The hon. Member for Lewes (James MacCleary) talked about how the Secretary of State might use powers relating to outside places where people may smoke. The hon. Member for Newbury (Mr Dillon) shared his concerns about how measures on the age of sale will work in practice. Those will indeed be clunky measures for shopkeepers to try to enforce, and will have an effect on the cohort of individuals who are just either side of the threshold, who will require ID throughout their lives. The hon. and learned Member for North Antrim (Jim Allister) spoke about how that measure will work in Northern Ireland, and although he received some assurances from the Minister, I am not sure that they were completely effective.

Although I confess that I do not like Marmite, it is a free vote this evening for Conservative Members, and I will support the Bill. The Secretary of State said in opening that 350 young people will start smoking today, most of whom will regret it, so why was 1 January 2009 chosen? I appreciate that that was the date in the previous Bill, but why did he choose it for his Bill too?

Let me move on to the area of chocolate spread—the part of the Bill on vaping. I think it was universally welcomed, and was supported by the hon. Members for Newcastle upon Tyne East and Wallsend (Mary Glindon) and for North Shropshire (Helen Morgan) among others. It includes measures to tackle vaping among children, on which I have personally campaigned. As others have said, the chief medical officer has been clear that for someone who smokes, vaping may be better, but if they do not smoke, they should not vape. As a Member of Parliament and a children’s doctor, I have been increasingly concerned about the sharp increase in children addicted to vaping and, more recently, to other nicotine products such as pouches. Schoolteachers have reported that children are unable to concentrate, or even complete a whole lesson, without visiting the bathroom to vape.

[Sir John Hayes]

I very rarely disagree with my hon. Friend. She is of course right about vaping, the effect that it has on children and the difficulty that schools have in managing it, as headteachers will no doubt have told Members across the House, but can she really go into the Division Lobby to support the Bill with this nonsense about age? The idea that someone aged 30 could smoke and someone aged 29 could not, and the idea that that could be policed or managed in any practical way, is just nonsensical. It was daft when the last Government introduced it, and it is daft now this Government have done so.

[Dr Johnson]

The challenge is that if we were to ban it altogether, we could risk criminalising people who were already addicted to tobacco products—adults who had made that choice. That is the reason why both present and past Governments put forward a measure to increase the age gradually, but I understand the points that have been made about the difficulties for shopkeepers and others in enforcing it over time.

I return to vaping. Doctors report a growing body of evidence suggesting that children may be having difficulty in school and suffering health problems as a result of vaping. A report from Healthwatch said that 31% of the more than 4,000 under-18s it surveyed were regularly vaping. Nicotine is a powerfully addictive product. Young people are particularly susceptible to it, so it is very important that we protect children from vaping and other nicotine products. After all, vaping is an adult activity; it is apparently designed to help smokers quit. While the industry may argue that the flavours and colours are enjoyed by adults—and they may well be—I struggle to understand why adults would want a vape flavoured like a unicorn milkshake, whatever a unicorn’s milk tastes like. The Healthwatch survey showed that fruit flavours are very popular with children, and the same has been repeated by various teaching unions, the British Medical Association, of which I am a member, Cancer Research UK and even a Government report from last year. I also do not see why an adult stop-smoking device needs to be disguised in the form of a highlighter pen, which could perhaps be hidden in a child’s pencil case, or created in the shape of a children’s cartoon character. Enticing and luring children into a lifetime of unwanted and potentially harmful addiction is immoral.

The Secretary of State is taking powers to regulate the flavours, colours and packaging of vapes, but how will he ensure that he stays one step ahead of an industry whose income depends on a new generation of addicts? He has taken quite extensive powers, which I know is of concern to some hon. and right hon. Members, but how and when does he intend to use them? What support will be given to children who are already addicted to vaping to help them quit?

Finally, while this is a free vote issue, I am pleased on a personal level to see some of the proposals that I put forward on the last Bill being incorporated into this one, particularly on the sponsorship and advertising of vending machines. Whatever our views on this Bill, it is a bold piece of legislation of good intention. It aims to improve the health of our nation and of our children in particular and to reduce smoking and prevent nicotine addiction in the young. It is not clear whether it will work, but we have to hope, for the health of all of us and our children, that it does.

Tobacco and Vapes Bill (First sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[The Chair]

We are now sitting in public again and proceedings are being broadcast. Before we start putting questions to the witnesses, do any Members wish to make declarations of interest in connection with the Bill?

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

I am an NHS consultant paediatrician and a member of the Royal College of Paediatrics and Child Health.

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[The Chair]

Sorry about the distracting noise; we are trying to sort that out.

We will begin by hearing oral evidence from Professor Sir Chris Whitty, chief medical officer for England; Sir Francis Atherton, chief medical officer for Wales; Professor Sir Michael McBride, chief medical officer for Northern Ireland, who will participate via Zoom; and Professor Sir Gregor Ian Smith, chief medical officer for Scotland. We have until 10.25 am for this panel.

[Dr Johnson]

Q I thank the witnesses for coming along; we are interested to hear what you have to say about this Bill. For some time, I have been particularly concerned about children vaping. How will the restrictions on vapes in this Bill, particularly on colours, flavours and accessibility, help to reduce their appeal and accessibility to children?

Professor Sir Gregor Ian Smith: First of all, thank you to the Committee for inviting me to give evidence. I think this is an incredibly important step. I have been concerned—

[The Chair]

I apologise, but I think people are struggling to hear over the noise; I certainly am. Could everyone enunciate more clearly and speak a little louder?

Professor Sir Gregor Ian Smith: First of all, thank you for the invitation to provide evidence. I think this is a really important step that we can take to protect children from vaping. I am very clear in my mind that vaping has a place in helping those already smoking to stop smoking. It has a place in smoking cessation, but children, young adults and indeed adults who have never smoked should never start vaping; there are too many uncertainties about the health consequences of vaping for that to be encouraged.

In restricting children’s access to vapes and reducing the attractiveness to children of some of the vaping products currently marketed, the Bill will protect children from the potential health consequences of vaping itself and from the potential of vaping to be a gateway to the use of other nicotine products, for which there is emerging evidence. I am certain that the Bill will help to protect children from the dangers associated with starting to vape.

[Dr Johnson]

Q Thank you; that is helpful. My other question is about the difference between indoor and outdoor exposure to smoke. In this country, we have had laws preventing smoking in certain indoor spaces for many years now. How does exposure to smoke inside differ from exposure to it outside? Imagine sitting next to someone smoking on a park bench and someone smoking at a neighbouring table in a restaurant—what are the comparative health risks between those two?

Professor Sir Chris Whitty: I think the first thing to say is that second-hand smoke is a very serious problem. I think that is underestimated among the general public because, if I am honest, the cigarette industry has been very successful in muddying the waters on this.

There are three key things that really make a difference. The first is the degree of concentration of the smoke. The second is the duration of exposure—let us say you sit next to someone for half an hour; the effect is more significant than if it had been just a couple of minutes. The third is the vulnerability of the people being exposed to it. That is one of the things that this Bill will help with.

Over 88% of the population do not smoke. There are roughly 6 million smokers still. There are significantly more people in the UK, non-smokers, who have medical vulnerabilities that mean that the smoke is particularly dangerous to them, perhaps acutely. They can be exposed to smoke and have an asthma attack, and that lands them in hospital. In severe cases it could land them in a very dangerous situation. The situation may also be chronic—for example, people living with diabetes already have a disease that is going to accelerate things like cardiovascular disease. If people are smoking on top of that, it will accelerate those things still further.

Although outdoor smoking is less in terms of passive smoking than indoor smoking, in most situations if you are close to someone, exposed for a long period or vulnerable, it can have very significant health impacts. In broad terms, if you can smell smoke, you are being exposed to significant amounts of smoke, and that is one of the things that the Bill is aiming to address.

I would like to make one additional point: the cigarette industry has been extraordinarily good at trying to pretend that to be pro-smoking is to be pro-choice. Nothing could be further from the truth. Smoking is highly addictive. Most smokers wish they had never started and want to quit, but they are trapped by addiction. Their choice has been taken away deliberately by these companies as part of their policy. And if you are talking about second-hand smoke, indoors or outdoors, the person downwind or next door has no choice at all at any point. They are exposed to the risks with no advantages at all. If you are pro-choice, you should be firmly in favour of the principles of the Bill. Frank, do you want to add to that?

Sir Francis Atherton: The only thing I would add is that there is no safe level of smoking. As Chris says, if you smell it, you are breathing it in, and there is no safe level. Obviously, indoors is worse than outdoors. The dose response is a big issue, but there is no safe level. I think that is a really important point.

[Sarah Bool]

Q You mentioned that 88% of the population do not smoke, and the numbers are now declining. Can I ask why you supported a generational ban as opposed to raising the age from 18 to 21 or even 25? It is predominantly younger people whom we want to stop smoking.

Professor Sir Chris Whitty: I might ask Michael to come in. I can have the first go and Michael might want to come in after that, because this is a critical point. Historically, the cigarette industry, despite what it claims, has always targeted children. It always deplores it in public, but if you look at its internal documents you discover that that is what it has been aiming to do. Most people, the great majority, start as teenagers before they are 20—you are, of course, correct. To refer back to Dr Johnson’s original question, the same thing is now being done with vaping and exactly the same playbook is being followed. You get people at their most vulnerable and you addict them. That is the aim.

However, were we to stop at, let us say, 21, the cigarette industry, which is extraordinarily good at regrouping around whatever regulations are in place, would simply regroup around 21. To go back to my very first point about addiction, if you are a 21-year-old and you start, you become addicted and then you wish you had stopped. That does not change the fact that your choice has been taken away. So the logic of saying 21, 25 or 30—various people have looked at various ages—is no better than the logic of the current situation.

The advantage of the current model, which was first put forward by Conservative Prime Minister Mr Sunak, to whom we should all pay great tribute on the basics of the Bill, was to ensure that current children are not addicted and do not have their choice taken away, but that rights are not taken away from existing smokers. That is the reason why this particular model was chosen. Michael, do you want to add to that? You are on mute.

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[The Chair]

I call Caroline Johnson—apologies; I should have called you before the Minister.

[Dr Johnson]

Q The current advice, which was reiterated by the chief medical officer in the last session, is that if you do not vape, do not vape, but that if you smoke, vaping may be a better alternative. How will the measures in the Bill make it easier or harder for that message to be conveyed to the public who smoke?

Hazel Cheeseman: That will be a really crucial question as this Bill progresses, and it was touched on by the chief medical officers. The nature of this Bill is that we are taking powers across a range of areas, which we know will help us to prevent the uptake of vaping among children, which we are all concerned about. We are restricting the marketing of vapes and the way they are branded, and taking powers around the design of products and in relation to flavours. It is important that those powers, as was discussed in the last session, are broad in the Bill and defined through further consultation and regulation, giving us that flexibility to shape policy going forward. We know from our experience in reducing smoking among children that the things that will work are reducing the appeal, reducing the availability and reducing the affordability of products. The Bill, alongside the excise tax that is planned for 2026, will take us a long way on that journey to addressing those aspects and reducing the appeal among children.

We also want to ensure that products remain available for adult smokers to switch to. We know from our own research that adult smokers have very inaccurate views at the moment about the relative harms from vaping compared with smoking. Part of the issue is the way in which products are branded and pushed in people’s faces when they go into every corner shop up and down the country. That prevents the understanding that these products might be valuable for smoking cessation and promotes the idea that they are a kind of lifestyle choice for teenagers. Removing the branding and the displays in shops will allow the message that these products could be valuable to help people stop smoking, and will allow that message to land more easily than it currently does. That will hopefully realign those misperceptions and get us back to the position that we were in in, say, 2019 or 2020, where these products were being used as a smoking cessation tool and not really being used by other groups in the population. If we can get back to that, that would be the ideal scenario. Hopefully, the legislation takes us a bit closer to that.

[Dr Johnson]

Q How do you think the Bill will address health inequalities? We have heard that smoking is more prevalent among poorer individuals than among richer individuals. Will the Bill help address that?

Sheila Duffy: We see that socioeconomic inequalities and smoking rates are closely patterned. ASH Scotland’s work with low-income communities in Scotland suggests that people regret beginning tobacco, but find it hard to move away from it. It also identified the dangers of less regulated novel products such as e-cigarettes in enticing their children and grandchildren into the kind of addiction that they themselves so regret. One of the real strengths in the Bill is the ability to bring some of these tobacco-related products into the kinds of control and regulation that we have fought so hard over decades to get for tobacco products.

[Sadik Al-Hassan]

Q Do you think the introduction of a generational ban on smoking could cause an increase in the use of other nicotine products, such as vapes or smoke-free tobacco?

Hazel Cheeseman: The purpose of the legislation is to reduce smoking. The Department’s projections in the impact assessment clearly show that, even on conservative estimates, it will achieve that goal over time. So the question then is, does that lead to displacement into other products? Given that the legislation is comprehensive in relation to tobacco products, it is to be hoped that it will not lead to displacement into other kinds of tobacco products, but it might lead to some displacement into other nicotine products. As the chief medical officer said in the previous session, it is unlikely that nobody will take up smoking in the affected age group. Some people will; some of the 15-year-olds who will be affected by this legislation have already tried smoking. So we need there to be a legal nicotine product that those people will be able to use, with the restrictions that are coming into place in relation to vaping and other nicotine products in this legislation. One would not expect the overall consumption of nicotine to be greater than it otherwise would be, if that makes sense, but there may be some displacement into other nicotine products as we transition away from smoked tobacco and from tobacco being used widely in that group.

Sheila Duffy: Dual use is a real concern in Scotland. Nearly 43% of people are dual-using cigarettes and e-cigarettes. The international longitudinal cohort evidence clearly shows a higher risk of progression to using combustible tobacco for young people that start vaping. I think this legislation has the real potential to move us away from that.

Suzanne Cass: We also have to remember that the killer in the room is tobacco. The generational ban is the most crucial part of this legislation that we need to push forward. Therefore, we need to keep our eye on the ball when we are looking at the health impact, and the potential public health impact, of this Bill, and to make sure that we focus on driving down that tobacco use.

Naomi Thompson: Just to reiterate what Suzanne has said, tobacco is the issue. The impact of tobacco was repeated multiple times in the previous session. If young people start, they continue, and they find it very difficult to stop. Therefore, if we can sort that, it is a great first step. There may be a small move towards other nicotine products, but we can work on that. Tobacco is the one that kills.

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[The Chair]

We have the third panel of witnesses from now until 11.25 am. We will hear evidence from Dr Ian Walker, the executive director of policy at Cancer Research UK, and Sarah Sleet, the chief executive officer of Asthma and Lung UK.

[Dr Johnson]

Q What effect do you think vapes have on the health and the lungs of young people? Do you think the Bill will help to reduce the take-up of vaping in children?

Sarah Sleet: In general, there is very little evidence around vaping, and we need a really considerable effort to get the evidence in place, but we do know that nicotine in general is not healthy for children, and vaping nicotine products will not be good news. We have some evidence about the harms that it causes—we know that nicotine in particular is very problematic for very young children and developing brains—but we do not have the same level of evidence base that we have with tobacco. That is why this Bill and the precautionary approach that it takes in terms of restricting children’s access to vapes and the attractiveness of vapes to children is very important.

[Dr Johnson]

Q Smoking is a huge cause of cancers. Do you expect that this Bill will reduce the number of cases of cancer and increase the age of people who get cancer across the country?

Dr Ian Walker: First, thank you very much for the opportunity to be here. I start by thanking Parliament for boldly introducing this Bill; it is genuinely world leading. I have spoken to organisations across the world that are envious of the position we find ourselves in. That is a very important question, and the answer is absolutely yes—I think this Bill will be very important in reducing the number of cancers caused by smoking tobacco. We know that there is no bigger thing we could do to actually influence that going forward for the next generation and generations thereafter.

As you have heard this morning, we know that we still have 6 million people smoking across the UK, and we know that we can expect hundreds of thousands of cases of cancer caused by smoking over the term of the next Parliament. As we move towards a truly smoke-free generation over the next 20, 30 or 40 years, we will absolutely expect to see the number of cancers caused by smoking—and, alongside that, the number of other illnesses associated with smoking—reduce.

[Andrew Gwynne]

Q Can you tell us about the evidence of the impacts of second-hand smoking on cancer in your case, Dr Walker, and on asthma and lung conditions in your case, Sarah? What difference do you think that the measures outlined in the Bill will have on those conditions?

Dr Ian Walker: To start with smoking and cancer, the links between passive smoking and cancer, particularly lung cancer, are very clear. It is fair to say that there is less evidence around different scenarios that you might predict through this Bill, such as different outdoor environments and so on, but that is more because those studies have not necessarily been done. It is an important point to make that there is an absence of evidence, rather than evidence of absence.

You heard from the CMO of England this morning that if you can smell cigarette smoke, you are exposed to it. The direct risk, then, is linked to how long you are exposed to it, how concentrated the environment is, how close you are to it and so on. Nevertheless, passive smoking is harmful—not just for cancer, but for vulnerable people with many other conditions as well—so we are very much supportive of the introduction of smoke-free places and the ability to restrict people smoking in particular outdoor spaces.

Sarah Sleet: When it comes to people with lung conditions, second-hand smoke is incredibly important; it is a well-known, severe risk factor for people with lung conditions. About one in five of us in the UK will experience a lung condition—there are around 7 million people with asthma and about 1.6 million people living with chronic obstructive pulmonary disease. Those are two major conditions that are profoundly affected by second-hand smoking, and are clear risk factors in terms of deaths from asthma and people being hospitalised with exacerbations, so it is incredibly important that we deal with the issue of second-hand smoking. People said earlier that there is no choice about second-hand smoking, and yet it profoundly affects those with lung conditions. It is incredibly important that we ensure that we protect those vulnerable people as far as possible.

When it comes to the discussion about how far we should go in terms of smoke-free and vape-free places, we would consider going further than what has been suggested already and looking at other areas to make smoke-free. I know there has been discussion about hospitality and trying to balance the potential economic impact that has been talked about if we make the outside of hospitality places smoke-free. However, we think, given the balance between the public health impact and what we have seen with smoke-free indoor spaces and its impact on business, we could go further and should go further, there.

Tobacco and Vapes Bill (Second sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[The Chair]

I welcome the panel again, although I was not here for this morning’s sitting. We will now resume by hearing oral evidence from David Fothergill, chairman of the Local Government Association’s Community Wellbeing Board, Professor Tracy Daszkiewicz, executive director of public health and strategic partnerships and vice president of the faculty of public health at Aneurin Bevan University Health Board, and Alison Challenger, tobacco and vapes lead at the Association of Directors of Public Health.

For this panel, we have until 2.40 pm. The floor is now open to any members of the Committee who wish to ask questions, but we would traditionally ask the Opposition spokesperson to ask the first question, so, Dr Caroline Johnson, the floor is yours.

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

Q39 Thank you, Sir Mark, and welcome to the witnesses; thank you for coming today.

My first question is: do the local authorities have the resources they need to enforce these measures, if brought in? If they do not, what further resources do they need?

David Fothergill: I will take that one, if I may. First, thank you very much for the opportunity to come and speak to you. From a local authority perspective, we welcome the legislation, and we welcome the fact that it has been cross-party legislation—with the previous Government, and now with the current Government. The legislation will only be as good as the enforcement, and the question you ask is really important: have we got the resources to do it? We have to be sure that it is not a new burden—on either local authorities or retailers—that we cannot fund.

Therefore we would ask that we have time to implement, because we need to be able to consult with our retailers and our public to make sure that we implement in the right way. We would ask that it is viewed as a new burden, so that we can have additional moneys coming into the local authorities. We would also ask that we set up an apprenticeship scheme for trading standards services, to ensure that we are bringing through new people into trading standards—and environmental health, of course; we have to mention them. However, with time, focusing on those three areas, we will have the resources to make this successful.

[Dr Johnson]

Q You have talked about time. Time can mean lots of different things—weeks, months, years. What sort of timeframe do you have in mind?

David Fothergill: The important thing is that we have the right consultation and the right plan for bringing through new trading standards. I think we would be alarmed if you said you were going to introduce this on 1 January next year, but if you said we had two years or slightly longer to implement it I think we would be much more comfortable.

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

Q Thank you; that is really helpful. What about the new licensing scheme that local government needs to bring in? Do you feel you have the resources to do that? Will it give you the discretion you need in terms of the location of such sites?

David Fothergill: We argued at the previous Committee hearing under the last Government—I think you may have sat on that Committee—that we needed a licensing scheme to make it effective. We still hold that view. We think that it is right. What we should not do, though, is to overcomplicate this. We already have licensing schemes. Many of you will have sat on licensing committees at local authorities. We have good local people who license alcohol outlets, taxis, gambling and gaming. We believe that licensing is the right route to go. While we think the legislation should be consistent, we do think there need to be local variations we can look at, so that we can bring in what works for our communities, very much as we do with the alcohol schemes.

[Sadik Al-Hassan (North Somerset) (Lab)]

Q Do you believe the measures in the Bill to prevent vapes appealing to children are likely to work?

Alison Challenger: The short answer is yes, I think they do. The need not to have children exposed to the marketing of vapes is very important. At the moment we see that children are exposed to that marketing and are encouraged to get access to vapes, so it is important that this is brought into the Bill. I think what is currently in the Bill will help us to address that significantly.

David Fothergill: I concur. From a local authority point of view, we have argued long and hard about vapes and have spoken with your colleagues in the Department for Environment, Food and Rural Affairs about disposable vapes, which we have been very concerned about; so it is great to see this legislation moving forward.

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[The Chair]

We will now hear oral evidence from Professor Linda Bauld, who is a Bruce and John Usher professor of public health and co-head of the centre for population health sciences at the University of Edinburgh. Thank you for being flexible and appearing earlier in today’s session. For this panel we have until 3.10 pm. If Members want to refer to Professor Bauld’s contribution and evidence, it will appear further on in your packs.

[Dr Johnson]

Q Thank you for coming today. You have been monitoring and evaluating tobacco control policy and stop smoking strategies for many years. Earlier this year, you said that you thought a variety of things could go wrong with the implementation of the tobacco and vapes legislation. We all want to see people’s health improve, so we want the legislation to be successful in achieving that aim. Could you explain what you meant by that and what areas you think could go wrong?

Professor Linda Bauld: Thank you for the question. The first thing I would say is that I very much welcome the legislation. I also welcome the fact that it was introduced by the previous Government and then brought back by the current Government. I welcome the cross-party support I have seen. The academic community has contributed a lot of evidence to inform this legislation.

What I meant by those remarks was based on the previous Bill. There were areas that could be strengthened, and that is what we have seen in the current proposals—new measures are being introduced, many of which will need to be consulted on, and there are powers that can be acted on. In those remarks, I was thinking more about the implementation of the legislation and the regulations that will be required. A lot of that will need to be consulted on, but we need to ensure that we strike the right balance between what I see as the two primary priorities in this legislation: protecting young people and preventing smoking uptake. We must also protect young people from the harms of vaping, while also recognising the needs of the 6 million smokers we still have in the UK, who we need to support to quit.

I think the proof will be in the pudding. As all Members know, a lot of action will need to be taken forward to ensure that we get it right at the regulation stage. Certain elements of that will need to progress at pace to make sure we seize the moment to get it right.

[Dr Johnson]

Q Another question I had was about the research you have done into the effect on pregnant women and children. We heard a little bit on that from the chief medical officers this morning. What effect do smoking and vaping have on the unborn baby and children?

Professor Linda Bauld: As you know yourself, it is one of the leading causes of premature morbidity and mortality for the mother if she continues to smoke during and after the pregnancy. It is also a major cause of complications in pregnancy and for the baby, in terms of low birth weight and even stillbirth, along with a variety of other complications. The consequences of low birth weight are manifold in the health outcomes for the baby and the child. Finally, as you have heard from other witnesses, if the mother continues to smoke, or if other members of the household are smoking, that child is exposed to second-hand smoke in the home and is also three times more likely to become a smoker themselves.

As I think we heard from the CMOs—it could have been other witnesses—one of the great promises of the legislation is this prevention piece for young mums and partners, even pre-conception. We know that if we prevent smoking uptake earlier, the parents of the future are far less likely to smoke. The levels of smoking we have in pregnancy now are at around 9% or 10%. They have reduced a lot, but we can drive them down even further. It is important to make the connection between the smoke-free generation measures in this Bill and reducing smoking in pregnancy.

[Dr Johnson]

Q My final question is about the verification measures and Challenge 25, which we have heard has been successful in ensuring that children under the age of 18 are not sold such products.

I had a look at the evidence for how good people are at establishing how old somebody is. We are often told, “Don’t try to guess someone’s age—you can get yourself into a lot of hot water by doing that.” The research I found online showed that we are remarkably not very good at establishing how old somebody is. We are quite good at establishing if someone is of a similar age to ourselves, but beyond that, it is not that easy. What information do you have on the research in that field?

Professor Linda Bauld: I will speak just to the Scottish scheme. As we have heard from the previous witnesses, Challenge 25 is quite easy to implement. It is widely used and highly effective. The benefit of Challenge 25 is that you have got people who are obviously a number of years older than the legal age of sale for the product they are buying, be it alcohol or another product, and it includes anybody who looks roughly around that age, so asking to check age verification is actually very effective. As the regulations in this Bill are taken forward across the four nations, ensuring that we have robust age verification as part of the scheme could be effective.

[Dr Johnson]

Q The last time I was asked for ID —when I was trying to buy a bottle of champagne, an orchid and a punnet of strawberries in a major supermarket—I was 38, so it would seem we are not very good at working out how old people are, or some people are not. We are going to ask people to decide not just if someone is younger than 25, but potentially if they are younger than 45 or 35. Is that going to be difficult for people to do?

Professor Linda Bauld: I think we also heard this from previous witnesses, but as the legislation comes into place, it is really not about 34-year-olds versus 35-year-olds; it is about acting on the age of sale gradually, so that we are de-normalising tobacco use and stopping the start at an earlier stage.

By the time we get to the difference between the 34-year-old and the 35-year-old, you will have far lower smoking rates than we do at the moment. The modelling for the legislation that was carried out by the University of Sheffield for the Department of Health and Social Care suggests, as I think Hazel Cheeseman said earlier, that by 2040 we will have reduced the smoking rate among those aged 14 to 30 to 0.4%—down from 0.6% by 2030—so I think you are going to see very low rates. To go back to Challenge 25, age verification is something that we can build in, and, irrespective of how old you are, actually seeing proof of age will support this.

[Andrew Gwynne]

Q Welcome, Professor Bauld. What impact have tobacco control measures had on smoking rates over time? What impact do you expect this Bill to have?

Professor Linda Bauld: Thank you for that question, Minister. I have been working in tobacco control for almost 30 years, and the impact has been phenomenal. If you look back to the late 1940s and 1950s, 80% of men smoked in the UK. We have driven that down gradually over the years. We started to measure it in about 1974, and the level of smoking in the UK is now about 12% or 13%—the second lowest in Europe. The reason that we have achieved that is in line with what is being proposed in this legislation. It is about using comprehensive measures and implementing them over the years to regulate what I often call the four p’s: the product, the place, the price and the promotion. You are taking action on potentially all of those—including price, with the levy that is coming in, or the tax on vapes.

We have made a lot of progress, but we are not there yet. I think what you will hear from my clinical colleagues later is that in line with keeping that firm focus on prevention, as you are doing in this Bill, we also need to keep the focus on cessation and particularly on marginalised groups, deprivation, mental health and so on. The key is comprehensive tobacco control. Keep doing it, and that is what the Bill is adding to.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Lord Michael Bichard, chair of National Trading Standards, and Wendy Martin, director of National Trading Standards. We have until 3.30 pm with this panel. As you can see, because both the earlier panels finished earlier than expected, we have a fair bit of extra time for these two witnesses, if they wish to use it or if Members wish to ask more questions.

[Dr Johnson]

Q Thank you for giving evidence this afternoon. Do you think that the penalties proposed by the legislation are too high or too low, or are they sufficient to act as a deterrent? What are your thoughts on that?

Lord Michael Bichard: Good afternoon. We will try to be provocative, so we can keep this going until half-past three. It is as long as a piece of string, in a way. If you compare the penalties to those in some other legislation, they are a bit low. On the other hand, trading standards can prosecute if we find, for example, that someone is a repeat offender, and then I think the fines are up to £2,500.

The only thing we thought might be possible would be to have a higher level of fine for a second offence. I think the first offence is a £90 fixed penalty, but you could have a couple of hundred for a second offence. But we enforce; we do not fix the fines—we just do what you tell us. It is not an unreasonable figure, although it certainly could go up, rather than down, and we could have something for a second offence. Also, we could take action through prosecution for someone who was constantly offending.

[Dr Johnson]

Wendy, do you have any thoughts—

Lord Michael Bichard: Sorry, I did not hear that. The sound is not—

[Dr Johnson]

Q I do not think the microphones are working terribly well today. Wendy, do you have any thoughts on the size of the fines?

Wendy Martin: Lord Bichard has spoken about the rather varying levels of fines that do exist. The other point worth making is that the issuing of a fixed penalty notice is not automatic anyway. A lot of the work, especially around first offences, would be to try to support businesses with advice on how to comply with the law. It is not the case that, immediately you find something wrong, there will be a fixed penalty notice. There are a lot of drivers for compliance, especially with legitimate businesses that want to comply. As we said, prosecution is an option and you have the £200 fixed penalty, but for longer-term or egregious offences—definitely for repeat offences—prosecution through the magistrates’ court is likely to be an option.

Lord Michael Bichard: One of the problems with prosecution is that it costs money. Therefore, if you can train retailers not to offend, that is a better outcome than having to issue a fixed penalty. For local authorities in particular, with their resource situation being what it is, the last thing they want is more bureaucracy around fixed penalties, prosecutions and all the rest.

[Dr Johnson]

Q Then you welcome the concept of being able to say, “This is the first offence; this is an educational opportunity, rather than an opportunity for a penalty.”?

Lord Michael Bichard: Do we welcome that? Yes, I do. It is our task to take a proportionate position. Some people make mistakes, and there is probably no point in even a fixed penalty notice if someone has just made a mistake. As Wendy has said, training is probably a better option. However, if someone is clearly determined to flout the law, you need to increase the penalties.

[Dr Johnson]

Q Can I ask you about the training available to staff and shops who are being asked to comply with this? We have heard of Challenge 25, where people are told, “If you think someone’s under 25, challenge them just to be on the safe side, because they might be under 18.”, and I have been challenged myself right to the age of 38 on such issues. In the event that someone makes a mistake, and you think they are reputable and genuine and it was just a mistake, and you want to provide them with training, is there training in how to recognise someone’s age? We are not going to just ask whether someone looks young; we are going to be starting to challenge people under 30, or under 35. It can be more challenging to identify how old people in middle age are compared with younger people. Is there any training available for people, in the event that they make mistakes?

Lord Michael Bichard: This is not complex legislation. One of the points we want to make on behalf of trading standards is that we are used to doing this sort of stuff. We are used to doing it for tobacco and illicit cigarettes. It is not complicated. The main issue is, as you say, age identification. People are increasingly used to having to provide some identity or proof of age for all sorts of things. In terms of training retailers, that is about it: if they have any doubts, they need to seek identity.

[Dr Johnson]

Q But if you are asking people to ask someone under 30 for their ID, for example, is there any training available to enable young—or old—shopkeepers to identify which people are likely to be under 30? Evidence suggests that people are quite bad at doing that.

Wendy Martin: No training exists at the moment, because the law is not in place yet, but you are quite right that Challenge 25 is the industry standard in terms of current age-restrictive products, no matter what they are. Certain industry organisations, such as the Association of Convenience Stores or the British Retail Consortium, put on a lot of training programmes for members. There has been Government-funded training in the past. The Chartered Trading Standards Institute hosts a site called the Business Companion, which has good, simple guidance and information that is designed specifically for small businesses and is easy to read and digest.

There needs to be a change of mindset around needing to ask for a date of birth, rather than asking, “Are you 18?” There does need to be information out there, as long as it is not complex. It is a case of reinforcing that, but I think those routes do exist via those websites, industry groups and pre-existing information that needs to be updated. There should be as much communication as possible with the public and businesses as the Bill goes through and gets Royal Assent about what to expect and what is required.

Lord Michael Bichard: Again, we want it to be proportionate, because small businesses cannot afford to spend a huge amount of time in training rooms. I do not think personally that this requires profound, long-term training. It is pretty simple stuff. A lot of it can be done informally.

[Dr Johnson]

Q Lord Bichard, you talked at the beginning of your remarks about resources. Do you think that trading standards have enough resources to implement the regulations and enforce them?

Lord Michael Bichard: I try to make it a principle of my life not to go around asking for more money from Government or the Treasury, so that would not be my first response. However, you have to look at this in context. Trading standards resources have been reduced by about 50% over the last decade, and staffing in local authority trading standards has gone down by about 30% to 50%, so we start from a very low base.

The suggestion that has been made is that trading standards should get £10 million to implement and enforce the legislation. That sounds like a not unreasonable figure, but the way in which it is distributed is quite important. If it is going to be done on a one-year rolling basis, that makes it difficult for local authorities to employ staff; you need some stability if you are going to employ staff. We think that, if it will be £10 million, it needs to be on a four-year cycle so we know that for four years we have that money and can employ the staff.

The other issue to be concerned about is that local authorities that I know—I am a local authority man originally—have been under huge pressure. There is always a temptation to take whatever money is there and use it on the highest priority. If this money is to go to tobacco and vaping, I am afraid that it probably needs to be ringfenced. I know there are some local authority former members here who will not agree with that—I do not normally agree with it, because I think local authorities should have the space to make their own decisions—but if you want this money to go to tobacco and vaping, it will probably need to be ringfenced.

I will make two final points. I know it sounds like a detail, but quite a lot of money has to go on storage and disposal. We think it is about 50p to £1 for every vape. That has to come out of the £10 million. Finally—this is really important—some investment has to be made at ports of entry. That is probably the most important intervention of all. We depend on UK Border Force in particular to give us the intelligence to enable us to target our efforts. We are already responsible for product safety at ports, so we rely on UK Border Force. That needs to be properly resourced because, as you will appreciate, it has a lot of other important priorities. If it is going to be effective at port level, we feel that about 20% of whatever money we get needs to be spent there.

I say that with some knowledge, because I visited a couple of ports before Christmas just to see how the product safety stuff was dealt with, and I was pretty shocked. I went to Southampton and Dover, and I must say that on occasions I felt that whether or not we were successful was pretty random. As I say, we were often not getting the intelligence from UK Border Force to enable us to target our resource, and I understand why. We only have a very small number of staff at these ports. We should not underestimate how important port entry is and some money has to go to that. That is a long answer to your question: £10 million sounds like a lot, but if you put in storage, disposal and ports, that makes it look rather less generous, and it probably has to be ringfenced and done on a four-year basis if it is going to have an impact.

[Dr Johnson]

Thank you, that is a really helpful answer. We know that vapes are very difficult to dispose of and to recycle.

[Andrew Gwynne]

Q I have a very similar question to the shadow Minister’s. She asked whether you are confident that trading standards will have the resources to enforce the measures in this Bill. My question is: are you confident that trading standards will have the right powers to enforce the measures in this Bill?

Lord Michael Bichard: I think we do feel we will have the right powers, based on the fact that we are already doing some of this quite successfully. We seized something like 2 million vapes last year; we carried out 400,000 test purchases—which is how we check whether or not the legislation is being enforced—and we seized, I think, 19 million illegal cigarettes. So in a way, this is not new stuff for us; it is just bigger. We have the powers and we use them quite effectively. We know that HMRC thinks we are pretty effective in relation to tobacco. We like to think we are a good delivery agency.

Wendy Martin: There has been a lot of work in the development of the Bill and the associated Department for Environment Food and Rural Affairs legislation around the ban on single-use vaping products with officials, so we have worked together with them to try to get this to a good place in terms of enforcement powers.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Inga Becker-Hansen, who is policy adviser for retail products at the British Retail Consortium. For this panel we have until 3.50 pm.

[Dr Johnson]

Q Thank you for coming this afternoon. What do you think will be the challenges facing business in implementing the new age of sale regulations?

Inga Becker-Hansen: Good afternoon, and thank you for the opportunity to speak. The question was about age verification, I think—sorry, it is a bit quiet for me here.

[Dr Johnson]

Yes; what are the challenges in implementing the new regulations?

Inga Becker-Hansen: One of the key challenges of age verification is this idea of the rolling age for the smoke-free generation. At this point it is quite identifiable, with those under the regulation being 15, but in 30 years’ time if you have someone who is 45 versus 44 from the date of January 2009, it may lead to ID for each sale of a given product, if that makes sense. This will eventually lead to potential issues. Points of sale can be a flashpoint for violence and abuse against retail and shop workers, so it is a real concern for retailers that that could be an issue in the future in terms of the smoke-free generation and the ageing of that generation.

We would also like to highlight that a digital ID could possibly make things easier. The Department for Business and Trade is promoting the use of digital ID for alcohol consumption. That could potentially be included as a means of age verification to make the process easier for the average consumer and member of the public.

[Dr Johnson]

Q Can I ask about staff training? Once the legislation goes through, which we expect it to do, retailers up and down the country will need to ensure that their staff are properly trained to follow the law. One of the challenges they will have—not initially, but as it goes forward—is identifying how old individuals are. Are you aware of any training that helps staff members to identify which people are under, say, 30 or 40 years old?

Inga Becker-Hansen: Specifically for under 30 or 40 years old, I do not think we have anything. I imagine that with the Bill something would be implemented.

[The Chair]

Could I ask everybody to speak louder, please? The microphones are not very good at picking up the sound.

Inga Becker-Hansen: Okay, no problem. In terms of age verification for product sale, our members have lots of experience of the sale of tobacco and alcohol products. They have till prompts looking at the date of birth of the customer in the store. There are also badges, posters and mystery shoppers to ensure that they are compliant. Challenge 25 has been implemented since 2009, and our retailers are very compliant with it. There are due diligence procedures that are agreed with primary authorities. I imagine that in terms of identifying sales for people under 30 or 40, it would be a matter for retailers to discuss with their primary authority to identify the best route for that in store.

[Dr Johnson]

Q One of my concerns is that it is quite difficult to identify how old somebody is. People can get themselves into trouble with the law by not being very good at identifying someone’s age, and it is going to get more difficult as this goes forward. Moving away from the age of sale, how will the licensing scheme affect retailers, particularly small retailers?

Inga Becker-Hansen: In terms of the licensing scheme for smaller retailers, it is more about the administrative burden that there will be, and the cost of that. Smaller retailers may not have as much capacity with regard to the licensing scheme. It is quite difficult to comment on it at this point, because we do not know the full detail. If the licensing scheme were to bundle alcohol and vapes and tobacco, or if they are separate or together—those are all the kinds of questions your smaller retailers will have to take on board with regard to the licensing schemes and what they can and cannot provide for their customers.

It will affect revenue for smaller retailers, so it is something to bear in mind. There will be increased bureaucracy and increased costs. We would welcome the opportunity to discuss and contribute to the design of the scheme, but we do not know the full detail, so it is quite difficult to comment on how it will or will not affect smaller retailers specifically.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Matthew Shanks, who is the chair of the Secondary Headteacher Reference Group and chief executive of the Education South West multi-academy trust. For this panel, we have until 4.10 pm.

[Dr Johnson]

Q Good afternoon and welcome. We have heard in the past from headteachers and others about the challenges they have faced in schools with vaping in particular. Can you give us an update on the effects of vaping on children, in terms of school behaviour management, and on their education?

Matthew Shanks: That is quite a large question, but I can answer it from an anecdotal point of view and from talking to colleagues around the country.

Vaping is a bigger problem than smoking within schools. Children who would not contemplate smoking—sporty children, dancers and so on—engage in vaping because they see it as harmless. It is easily accessible. It is very difficult to detect in schools in a way that cigarette smoking is not. It is seen as very fashionable in terms of the way it is advertised and promoted. I am not saying that this is happening in every school, every day, but we can report instances of children going out of lessons to vape in toilets or various places. Vaping is difficult to catch, because there is no smell, unless they use bubblegum, grapefruit or other such flavours. It is having a huge impact on discipline within schools—on ensuring that children are in lessons, or are in school in the morning on time, and not off-site at lunch time looking for places to vape and so on.

[Dr Johnson]

Q Is there an effect on their concentration or behaviour in class, for example?

It is difficult to prove what is in vapes. Again, there are instances of vapes containing illegal substances, but that is difficult to prove, because of their small size and where they can be secreted or hidden. There is evidence out there of drugs being contained in vapes—snus or Spice in the vapes—being quite addictive. Any kind of addiction leads to misbehaviour, particularly if you put that into secondary schools or among older children in primary schools.

[Dr Johnson]

Q Thank you—that is very helpful. We have heard another thing in the past—in fact, a teacher at one of my children’s schools, produced what looked like a small, pink highlighter pen. To all intents and purposes, it was a pink highlighter pen, but it was actually a vape. It is not clear to me why that would be marketed at the average 40-year-old male smoker who wants to stop—or, indeed, at a 25-year-old female smoker. Why does the vape need to be shaped like a highlighter? That does not make sense to me. It feels as if that is deliberately marketed at children, because it is easy to conceal in a pencil case, and the teachers and parents cannot tell it is there. To what extent do you think that the flavourings, shape and colour of some of the products make them more attractive to very young children?

Matthew Shanks: To speak frankly, those vapes are not marketed at 40-year-old people who are trying to give up smoking. I do not think that vaping is marketed at people who are giving up smoking—it is not a cessation tool: it is a tool to encourage young people to engage in something else. I have talked before about this—it is almost the gateway from chewing gum to the next stage. Half a mile down the road, if you walk towards Trafalgar Square, a shop on the right-hand side—I passed it walking in—is full of colourfully arranged vapes, which do not look harmful; it looks like a sweet shop.

Marketing and selling a vape that looks like a mini pen drive or a highlighter is only done so it can be secreted and make it difficult to catch students with them. We have had instances where part of the vape can be slipped into a bra, so we cannot search and find it. As I was saying, it is difficult to know what is in the vapes or whether people are actually vaping, which leads to confrontation between teachers, children and parents.

More recently, one of the things we have found is that, although they are still fashionable, we have seen a lack of fashionableness around the single-use vapes, because of the impact on the environment and the hope that they will be banned. There is far more reluctance—with arguments caused—among children and parents not wanting to give up larger vapes, because they have paid for them, and that therefore brings parents into conflict with teachers when they want to claim back their children’s vapes. Sometimes those vapes are their parents’ vapes or, sometimes, vapes that they have spent a lot of money on. My view and that of colleagues that I am representing is that vapes are not being advertised to help people to cease smoking; they are being advertised to encourage people to take up a habit.

[Dr Johnson]

Q I agree with you on that. To what extent will the Bill help to resolve, or at least alleviate, the problem of children vaping?

Matthew Shanks: At the moment, there is a vacuum around an understanding of what vaping is and what it can and cannot do. I cannot talk to the health aspects, because I am not a health expert, but it is something that is not clear. Because it is not clear, that is enabling children to engage in it and parents to encourage children to engage in it. There are instances of parents giving it as a reward because it is not a cigarette and they therefore see it as being “safe”. I think the Bill will help with that.

What is really important is the messaging and the education around the harm that vaping can do to young people and to adults as well. We need to bring it back to the original reason why vaping came about in the first place, which, as far as I was concerned, was about ceasing smoking. Lots of my friends took up vaping to cease smoking. They do not vape any more or smoke, but lots of children vape who would never contemplate smoking.

[Dr Johnson]

Q I have one final quick question on detectors. Some schools have tried detector devices to pick up vape vapour that is not picked up by smoke detectors. What are your thoughts on those? Are they effective and have they been useful to schools?

Matthew Shanks: Children are very clever, and they will find a way round. On the other hand, far be it from me to sit here as a teacher and talk about funding, but vape detectors would cost money. Smoke detectors are in schools anyway, so it is far simpler. I think children will find a way around it. We saw a real decrease in cigarette smoking with the advertising and marketing. I have been teaching for 30 years, and we saw a decrease in that, but you cannot win an argument at the moment with parents or children talking about the dangers of vaping. That is the hardest thing.

[Dr Johnson]

Q Will this Bill help with that?

Matthew Shanks: Yes—very much so.

[Andrew Gwynne]

Q The shadow Minister is absolutely right to mention highlighter pens. You mentioned pen drives. There are examples of vapes that look like mobile phones. There are examples of vapes that are concealed within the hood strings of hoodies, so kids sucking on their hood strings are often vaping. It is clear that the industry is being very malicious in its approach to marketing vapes, which is why the Bill introduces a ban on advertising and sponsorship. Do you think that will have a material impact on dissuading children and young people from vaping?

Matthew Shanks: I think it will, but for some it will not unless it has the education behind it as well. I also think it is too easy for children to purchase vapes. It is all very nice to think of shopkeepers not allowing children to buy vapes or tobacco if they are under age. I am not denigrating them, but we have instances, for example, of a year 9 child who had a loyalty card for a vape shop. She is 13 years of age—she did not look 18—yet she is being sold that at the local shop. You go in and talk to the local shop and they say that no, of course they have not sold it to her, and then there is conflict there. We need to look at the legality of it and sterner punishment, for want of a better word, for people who are found to be selling.

The drop box online purchasing industry also needs to be looked at. I do not know how, but again, we know that people purchase vapes from those places. The education side is for parents, because parents and older brothers and sisters think it is safe and will therefore give them a vape. The Bill will help, but there are other things that could help as well.

--- Later in debate ---

[The Chair]

Now that things have settled a bit, I welcome Dr Laura Squire OBE, from whom we will now hear evidence. She is chief healthcare quality and access officer for the Medicines and Healthcare products Regulatory Agency. For this panel, we have until 4.30 pm, which is obviously 20 minutes.

[Dr Johnson]

Q Welcome to the Committee, and thank you for coming. I want to ask you about the approval process that vapes go through. People say, “This has MHRA approval,” or “This has an MHRA tick,” and they may therefore think it is safe because you have “medicines” in your title. Could you briefly lay out your processes for regulating items such as vapes for commercial sale? How does that differ from medical devices regulation, which is the larger part of your business?

Dr Laura Squire: Thank you very much for that question—I welcome the chance to answer it. As you say, we are a healthcare products regulatory agency. That is what we are about. When a medical product comes to us, it has a medical purpose. For example, it might be something that is prescribed to help someone deal with issues of nicotine withdrawal and to get them off a product. That would be licensed as a medicine because the active ingredient in it is a medicine. The Medical Devices Regulations 2002 sometimes come into that too.

In order to give a licence to a product such as that, the manufacturer that has produced it will need to give us a dossier that has clinical and quality evidence in it—all sorts of things that go through a detailed assessment by our very skilled assessors, some of whom are medics and some of whom are skilled in pharmacy and also look at quality.

It is important to say that when we license any medical product, we do not say, “This product is safe.” We consider the risks and benefits of the product, and if the benefits outweigh the risks, we will give it a licence. We always say that medicines are not safe things, so if you do not need them for the benefits, do not take them.

The approach that we take on consumer products is very different. That is not an assessment process; it is a notification scheme that we undertake under the Tobacco and Related Products Regulations 2016, whereas before I was talking about the Human Medicines Regulations 2012 and the Medical Devices Regulations. Under the Tobacco and Related Products Regulations, we basically have a notification scheme. The manufacturer of a consumer e-cigarette would have to come to us and show that the product has the 20 mg, and that the refill container has no more than 10 ml, and then there are some limited labelling requirements. But we do not inspect or test that product; it is a data check to see whether those things are true, and then it goes on to the register. It is a very simple notification scheme, which is very helpful in terms of having a single record of what is out there on the market, but it is nowhere near the sort of assessment that we would do if it were a prescribed product that was proven to help people stop smoking.

The other role, once any product within our remit is on the market, is post-market surveillance. We have something called the yellow card scheme—people may have heard much more about it during the pandemic—whereby anybody can report a problem with a product. That covers consumer vapes, medical e-cigarettes and other nicotine-containing products that we might license.

We examine all the reports that we get, and if there is a signal that there is a problem, we sometimes issue a safety communication. We did that a couple of years ago when there was some evidence of lung damage. We have that role, and we often co-operate with other organisations where there is a need for enforcement. We heard from trading standards earlier, which does that. The roles are very different.

[Dr Johnson]

Q You have explained that they are very different roles: in one, there is a level of safety that is checked; in the other, the manufacturers just notify that they are following the basic level of rules. When a customer buys a product, do you think that the suggestion that it is MHRA-approved leads the customer to believe that there is some evidence that it has been medically checked in some way by some higher competent authority, when that actually has not happened? In fact, would it be better for some other organisation to do this work, or for there to be a different name when the lower-level process has taken place?

Dr Laura Squire: I do not have any evidence of that, but it does worry me. We are an organisation that is about healthcare products, medicines, medical devices and blood products—that is our business—and it concerns me that people might think that vapes are safe. When I talk about risk-benefit, what I mean is that vapes are safer than tobacco; I do not think that anyone disagrees with that. However, vapes are not safer than nothing—and we do not actually know how unsafe vapes are, because there is a need for much longer-term study and understanding of the damage that they could cause.

My feeling is that, yes, there is potentially a misleading position with an organisation like ours, which is basically about healthcare products, running this scheme.

[Andrew Gwynne]

Q Welcome to the Committee, Dr Squire. I will ask two questions specifically about the notification scheme, which you very helpfully outlined to the Committee in your response to the shadow Minister. First, what do you think are the most pressing issues with the current notification scheme that you would like to see addressed in a new registration scheme?

Dr Laura Squire: I think we heard earlier about the different elements you need to make something work—licensing, regulations and registration—and I agree with that. I think it was also mentioned that registration is important to allow compliant businesses to check that the product that they have is compliant.

The significant problem with the notification scheme at the moment is that there is not an easy way to take something off the register once it is already on it. That is a problem, because if people are checking the current register, there might be something on it that we would quite like to take off but cannot.

There are powers to take things off the shelves, so if there was a recall issue, that could be dealt with. However, the main problem, or the primary thing in the Bill that I think needs to change, is having powers to take things off the register. Obviously, we must consult on the regulations themselves, but we welcome that change.

--- Later in debate ---

[The Chair]

For this panel we have Professor Steve Turner, the president of the Royal College of Paediatrics and Child Health, and Professor Sanjay Agrawal, the special adviser on tobacco at the Royal College of Physicians. We have until 4.50 pm for this panel.

[Dr Johnson]

Q Thank you and welcome. I reiterate that I am a member of the Royal College of Paediatrics and Child Health. My first question is about the medical harms of vaping. We know that these products are relatively new and that it took quite a long time to establish how harmful smoking was. What do we know about harms that vaping may cause to children who have never smoked?

Professor Steve Turner: I will answer that question. Thank you for accommodating me; I have flown a long way. I thank Professor Bauld for reshuffling the order of the panels. I am passionate about this issue, and I am grateful to be able to contribute.

Vaping is harmful for children, and the evidence is accumulating. Vapes contain nicotine, which is harmful to us as human beings. You have heard previously from Matthew Shanks of the Secondary Headteacher Reference Group about the impact of vaping on children’s education. There are evidences of children coming to harm from vaping devices bursting into flames. There is a lot of talk about something called popcorn lung, which fortunately is very rare, but it is very serious and can affect children who vape. Collectively, there is already a substantial burden of evidence that vaping is harmful for children.

[Dr Johnson]

Q We have heard a bit today about the marketing of vapes and the flexibility of industry to maintain its market of nicotine-addicted people. Do you think that the Bill is sufficiently flexible? For example, we have seen nicotine pouches becoming more popular with children, and we have started to see them advertised in bright colours and flavours, such as groovy grape and witty spearmint, and in the same patterns that we saw with vaping, which have been described today. Is the Bill future-proof enough to stop those sorts of activities?

Professor Steve Turner: The Royal College has 24,000 paediatricians in the UK and overseas, so we are a substantial college. We strongly support the Bill as it is. We believe that it provides the right protection for the most vulnerable members of our society—our children, who are our future—and that it is proportionate. We think the Bill as it stands addresses all the concerns that you just raised, and others.

[Dr Johnson]

Q Professor Agrawal, do you have anything to contribute about the effects of vaping on older people?

Professor Sanjay Agrawal: The majority of adults who vape have smoked, so they are using vapes to quit smoking. The amount of research that looks at populations who have never smoked, who have only vaped, is actually quite small—the longitudinal studies are still not there. We know from shorter-term studies that vaping can lead to things like coughing and throat irritation, but it is important to consider the alternative, which is continued smoking.

I estimate that, in the roughly 30 years since I qualified and started professional practice, about 3 million people in the UK have died from smoking tobacco. The intensive care unit in which I work and the lung cancer clinics that I do are full of people who have come to harm from accrued smoking. There should be no doubt that smoking combusted tobacco is the key thing that we want to prevent future generations being subjected to. There are still 6 million smokers in the UK, and we need to help as many of them as we can to stop smoking. Vaping is one means by which they can stop smoking, and that is really important.

[Dr Johnson]

Q I want to ask you about flavours, given your experience of people who are trying to quit. There has been some debate about restricting flavours, and how flavours entice children but, perhaps, help adults. When I first met somebody from the industry, I asked them about flavours and they told me that when somebody uses another quitting aid to stop smoking, they will use the quitting aid, then stop the quitting aid, and then they are not using any products, buying anything or making any revenue for the companies. However, when somebody has a choice of flavours, they do not just give up smoking; they transfer their addiction to another product, which they then to continue to buy because it is enjoyable to vape these different flavours and to choose different flavours at different times if they get bored. Is that something that you see in your clinical practice? How do vapes compare with nicotine patches, gums or other inhalation devices that just provide nicotine in terms of, first, giving up smoking and, secondly, persisting with a new habit?

Professor Sanjay Agrawal: There are a few things to unpack there. First, a lot of people who smoke and who want to give up use vapes because they have tried other products and have not been able to give up, be that nicotine replacement therapy or tablet pharmacotherapy. One thing those people want to get away from is the taste of tobacco, and having flavours allows them to do that. Actually, other NRT products, such as gums and lozenges, also have fruit flavours—it is not just vapes. Flavours are an integral part of helping people to get away from smoking.

Equally, as we know, flavours attract young people to smoking, so it is really important that we limit the number of them. However, the flavour descriptors are perhaps more important: I think we need to make them bland. The Bill, as it stands, provides powers to restrict all sorts of elements related to vaping, such as the number of flavours, the descriptors, the packaging, the appeal and the advertising. Having bland descriptors and eliminating flavours that we know are popular among children would be really helpful.

[Dr Johnson]

Q That leaves the Government with a difficult choice, does it not? At the moment, there are a whole plethora of flavours. You can make the descriptions boring very easily but, if you are going to choose a small range of flavours, the intent will presumably be to choose the ones containing those chemicals that are thought to be the least harmful. Is there evidence that would enable you to choose which flavours may, or may not, be less harmful?

Professor Sanjay Agrawal: First, there is good survey evidence of what is popular among adult smokers who are using vapes to try to quit, so that is one helpful factor. Then there are flavourings that are potentially associated with harm. Cinnamaldehyde has been associated with harm, so that would be one, for example, that you would remove.

[Dr Johnson]

Q Okay, but you do not have specific evidence that compares flavours. Say the popular flavours are cherry and raspberry—you do not have anything that says which is safer.

Professor Sanjay Agrawal: No.

[Andrew Gwynne]

Q Welcome to the Committee, and I thank you both for your time. In answer to the shadow Minister, you have outlined some of the early impacts of vaping that we are seeing in patients. But I am interested in smoking—tobacco is a killer. Following on from the evidence this morning from the CMOs from across the UK, what impacts of smoking do you see in your patients—I include second-hand smoking in that analysis—and what difference do you think the measures in the Bill will make?

Professor Steve Turner: Smoking is bad whether you are an active smoker or a passive smoker. Sadly, there are lots of children who still actively smoke, but there are many hundreds of thousands of children who are exposed to second-hand smoke in the home. There is undeniable evidence that that exposure is harmful. I do respiratory paediatrics. Asthma admissions are very common and are clearly associated with exposures.

We can look at natural experiments. For example, in Scotland we had the “Take it right outside” campaign, which was a smoke-free homes initiative. After that, there was a reduction in the number of children coming into hospital. When we brought in the ban on smoking in cars in Scotland, there was another reduction. On that whole-population basis, there is a lot of evidence of benefit to the population, particularly children, from smoking interventions. There are also benefits to the birth weight of children.

There is no doubt that there is a huge amount of harm from second-hand smoke, and anything that reduces the population’s exposure to second-hand smoke will benefit the whole population. As we heard earlier from Matthew, the headteacher, it is part of a package, and it is part of education as well. Smoking continues to be something that children should not do. Children should never vape. Children should never smoke. They continue to do so, and anything that we as a responsible society can do to stop that is to everybody’s benefit.

--- Later in debate ---

[The Chair]

For the record, our final witness is Andrew Gwynne MP, Parliamentary Under-Secretary of State for Public Health and Prevention at the Department of Health and Social Care. We have until 5.20 pm.

[Dr Johnson]

Q I have a few questions about understanding the thought process behind some of the Government’s decisions. One of the suggestions made by a Labour Back Bencher in the previous Bill Committee —I think we were both on it—was that of a nicotine-free generation. Today, in particular from the CMO, we heard about how the industry flexes to maintain its pool of addicted people. We have heard before how young people are particularly vulnerable to starting an addiction. You have also talked about simplicity and the importance of making it easy for retailers to do the age checks. When raising the age of sale for tobacco products, why did you choose not to raise the age for other nicotine products at the same time and have one simple process?

Andrew Gwynne: Thank you for that question. I was not actually on the Bill Committee when the previous iteration of this measure went through Parliament, because I was the shadow Social Care Minister—I had been bumped away from public health, only to return to it in government.

The starting point is a recognition that the previous Government brought forward a Tobacco and Vapes Bill, which was incredibly foresighted of them. I thank those—including you—who supported that proposed legislation. We have to be mindful of the fact that the first thing we are seeking to do is to make the United Kingdom smoke-free, and smoke-free as soon as possible. As we heard from the chief medical officers from the various nations that make up the United Kingdom, tobacco is a killer. Our first target has to be driving down the instances of smoking and, as a consequence, of tobacco-related death and illness, and the harms caused by second-hand smoking. That is why the measures in so far as tobacco is concerned are far weightier than the measures in respect of vaping.

The other thing I would like to say in answer to your question—this is an important point; we are concerned about nicotine addiction—is that we need to get the balance right. We recognise that vaping is an important smoking cessation tool—as the CMO said, not all countries share that point of view, but in the United Kingdom we see it as an important part of the package to help people to quit smoking. There has been a very successful scheme in this country, the Swap to Stop initiative, and that is an important part of this.

We are really concerned about the scourge of child and youth vaping, however, and that is why we think that the measures in the Bill are proportionate, because we are tackling a specific issue: stopping children taking up vaping and trying to dissuade adults who have never smoked from taking up vaping. As the CMOs have said, vaping is better than smoking, but not vaping and not smoking is the best option of all.

This is a proportionate measure. As you know, we are seeking quite far-ranging powers, and that is to ensure that, across the four nations, we can react as industry reacts to these changes so that this Bill will be future-proof. If we were overly prescriptive, we would then have to come back to Parliament with further primary legislation. While we are not seeking to be nicotine free at this moment in time, there will be powers in the Bill that allow, at some stage in the future, the Governments that make up the United Kingdom to consult to go further. The aim now is to stop smoking, to get to our smoke-free targets and to crack down on childhood vaping.

[Dr Johnson]

Q I am not sure that I completely understand your argument, because the rise in age of being able to smoke will also inevitably raise the age of people who are wishing to quit. Of course, if a Government want to do it later, you could end up in a very tricky situation where you are asking people to enforce an age of sale of 18 for alcohol, a requirement that no one born after 1 January 2009 is allowed to buy tobacco, and another requirement as yet to be determined for vaping. That could make things more complicated still, so I am not sure about that, but thank you for your answer.

My other question is about advertising. You will be aware that I put forward an amendment to the Conservative Bill to try to restrict advertising, because I think it is important to try to restrict advertising to children. How will health professionals who are promoting vaping as an alternative to smoking specifically in a medical setting, not necessarily on the tube or the side of a bus, be protected from being criminalised?

Andrew Gwynne: This is an area in which this Bill really does build on the previous Government’s iteration of the Bill. I want to take the politics out of it and thank Members such as yourself who really pushed this last time round. We are able to do this because it was a commitment of the Labour party in the 2024 manifesto that we would ban the advertising of vapes and the promotion of vapes in sponsorship. There is 75% support for an advertising ban on vapes.

In terms of being able to promote vapes as a quit aid, of course, you will have read in part 6 of the Bill that it is only an offence if advertising is done in the course of business. That excludes the promotion of vapes as a quit aid. That is something that hopefully you will welcome.

[Dr Johnson]

Q What was your thought process on shisha, bongs and other paraphernalia, which some people feel are not adequately covered by the Bill?

Andrew Gwynne: Oh, you will get me on my hobby horse, having mentioned bongs. All tobacco products will be covered by the measures in this Bill. Shisha is covered. Shisha is a harmful product, as are other tobacco products. In respect of paraphernalia, I have raised with officials and colleagues in the Home Office what I see as a potential issue: if this Bill becomes law, as I hope it will, and there is further consultation on the packaging and display of vapes, we could end up with a situation where vapes, like cigarettes and other tobacco products, are hidden behind cabinets in plain packages, but those same newsagents have bongs in the window. I am assured by my officials that bongs and grinders can also be used for the consumption of tobacco, and therefore will fall within the scope of the measures in this Bill in that they will not be able to be displayed.

[Dr Johnson]

Q My final question is about the awareness of public spaces legislation. You are creating the powers to restrict people’s ability to smoke and vape outside in places that you have chosen reasonably sensibly, but you could extend them. If you do extend them, how will you ensure that people know so that they are not inadvertently criminalised? If the Secretary of State wakes up in the morning and decides that he or she, depending on who it is at the time, wants to change this public spaces legislation, they can very easily do so, so how will we make sure people know that has been done?

Andrew Gwynne: Well, we cannot easily do so. The powers in the Bill mean that we have a statutory duty to consult. As we have already heard, Wales already covers the areas that we wish to consult on in respect of England. Scotland, Northern Ireland and Wales will have their own consultations. But as far as England is concerned, the Government have been very clear that, should this Bill pass, we will consult on implementing smoke-free areas outdoors around children’s playgrounds and schools and outside hospitals.

Given the media interest and speculation over the summer as to outdoor areas to which the Government might extend the outdoor restrictions, including hospitality, it would not be possible for any Government to just wake up one day and decide they were going to extend these measures to x, y and z and for nobody to notice. It would be on the front cover of every newspaper and all over X, Facebook, Bluesky and other social media. People would be very aware of a Government’s intentions to extend outdoor smoking and we would be under a statutory duty to consult and to pursue secondary legislation, which is ultimately subject to a vote of the House.

[Dr Johnson]

Q The Welsh Government are apparently struggling with compliance in hospital areas. What have you learned from your Welsh counterparts on how you can ensure better enforcement and compliance in England?

Andrew Gwynne: That is a really important question. It is why, at every opportunity today, I have been asking those with an interest in public health in Wales what lessons we can learn. We want to get this right. The reality is that alongside the package of enforcement we will bring forward—the registration; the licensing scheme; the fixed penalty notices—we have to approach this with a degree of proportionality, particularly to ensure that there is as good a compliance with the regulations as possible.

Most people are law-abiding citizens, and we saw with the indoor smoking ban introduced in 2006-07 that most people complied from day one. I really expect that most people will comply in respect of children’s playgrounds, schools and hospitals. I would hope that the enforcement agencies use a degree of discretion and proportionality at the outset to ensure that those not complying understand that they are potentially breaking the law and should stop doing what they are doing.

[The Chair]

We have about 15 minutes left, and five Members wish to ask questions. Could they do that briefly, and could we have brief answers too?

Tobacco and Vapes Bill (Third sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 9th January 2025 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen. To those to whom I have not already had the opportunity to say so, happy new year.

Let me first set out a few housekeeping arrangements. Please switch off all electronic devices. We do not want phones ringing; I hope mine is off. No food and drink is permitted during sittings, apart from water. If anybody needs anything else, will they please leave the room and obtain it from the usual places? If Members have speaking notes, they are always useful to Hansard, particularly if they refer to a name or a business in a constituency or anything like that. That just about deals with that bit of it.

We are about to begin line-by-line consideration of the Bill.

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

On a point of order, Sir Roger. Good morning; it is a pleasure to serve under your chairmanship. I rise on a point of order about the groupings for our discussions today. They are normally provided in good time, but at about 9 o’clock last night my team were provided with two versions that differed slightly: one from the Government and another from the Clerk. That did not give adequate time for the groupings to be properly considered. As you know, Sir Roger, this Bill is really important to me, but it is also important to the House and to our constituents. It aims to revolutionise their health and wellbeing. It is really very important that we get it right.

Another set of groupings has now been provided this morning. It was not delivered until about 9.30 am, and it is different from both the sets delivered last night. I think only the Minister, the Government Whip and I are the only Committee members who were MPs before July last year. I seek your guidance, Sir Roger, on how we can ensure, particularly for new Members, that there is proper time to scrutinise and appraise each clause and each group properly before the debate.

[The Chair]

Exceptionally, this is a matter for the Chair—normally, points of order have nothing to do with the Chair at all.

First, I have a note prepared by the Clerks, which I will read because it is relevant to part of what has been said. The Clerks in the Public Bill Office work on behalf of the Chairs—my colleagues and me—to prepare a provisional selection and grouping of amendments. It is very important that that is accurate. For those who have not served on a Bill Committee, I will come on to why that is done, which may help further downstream to explain the process of line-by-line scrutiny.

This is a very big Bill. A significant number of amendments have been tabled. Not entirely unusually, the Committee took oral evidence on Tuesday. Inevitably, such situations generate the late but timely—in the sense of being within the time limit—tabling of amendments.

Where the Clerks have to preside over the oral evidence sessions as well as trying to do all the rest of the work, it inevitably places a great strain on the system. It is no criticism whatever of the Clerks, who are formidable in the work that they do, that this has pushed it right up against the wire.

I know that the Government and, I believe, the Government solicitors and the Opposition received notice of the provisional selections fairly late last night. That is regrettable. It is always the case in such Committees that wherever possible all members, particularly the Government Minister and the Opposition Front-Bench spokesman, should get material in as timely a fashion as possible. That is a given, but there are exceptional circumstances, and these were exceptional circumstances.

I can only apologise on my own behalf—because my colleagues and I are ultimately responsible for the selection—for the fact that the grouping was late. I appreciate that that has created some difficulties, although not insuperable ones. If anything arising from that requires attention, we will deal with it as we go along, because part of our job is to be as flexible as we reasonably can.

I will seek advice on the hon. Lady’s second question about the groupings.

[Dr Johnson]

Further to that point of order, Sir Roger. There is a second point that I want to raise; I have given notice to the Chair. Because of the aforementioned delay in getting the groupings, I have not had time to scrutinise all the clauses of this very big Bill, as you have described it, but it strikes me as unusual that amendments 75 and 76 have been linked with clause 1.

In my experience, it is unusual to discuss amendments to one clause while considering another. My amendments 75 and 76 would amend clause 69 on page 36. Clause 69 is essentially a relative of clause 2, in so far as it tries to make things equivalent across the United Kingdom. I therefore wonder whether as Chair you might agree that amendments 75 and 76 would instead be best considered at the same time as clause 2.

[The Chair]

I thank the hon. Lady; that is very helpful. I fully understand what she is saying. This is an arcane process and it is an art, not a science. Personally, I am more than willing to consider grouping amendments 75 and 76 under clause 2 rather than clause 1. Because the selection list has been published, that requires the leave of the Committee. If the Committee is happy to do so, I am minded to accept the suggestion.

As I hear no objections, the hon. Lady has won her case. Amendments 75 and 76 will therefore be taken under clause 2 with amendments 58 and 59.

[Dr Johnson]

Further to that point of order, Sir Roger—

[The Chair]

Don’t push your luck!

--- Later in debate ---

[Dr Johnson]

It is a point for the Chair, and it is procedural. I have not seen this sort of thing happen before. Normally, we agree the groupings and then they just flow.

I have not had the opportunity to go through all the pages and pages of the Bill and see whether there are other issues like the one with amendments 75 and 76. Will there be a further opportunity to amend the sequencing as we go?

[The Chair]

There will be a further opportunity to raise a point of order. It will be up to whoever is in the Chair at the time to decide whether to take the kind of action that, on the Clerk’s sound advice, I have just taken. I appreciate that this is a complex Bill and we may well find that one or two amendments are more comfortably located under other clauses. If that is so, sensibly and flexibly, we will endeavour to accommodate that.

--- Later in debate ---

[The Chair]

We begin with the group led by amendment 17. The hon. Member for Epsom and Ewell (Helen Maguire), who tabled all the amendments in the group, is not a member of the Committee and therefore cannot move them. Is there anybody present who has taken ownership of the amendments and wishes to move the lead amendment on behalf of the hon. Member?

[Dr Johnson]

I beg to move amendment 17, in clause 1, page 1, line 5, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment makes it an offence to sell tobacco products, herbal smoking products and cigarette papers to a person under the age of 25, rather than to people born on or after 1 January 2009.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 18, in clause 1, page 1, line 13, leave out

“shown on that document was before 1 January 2009”

and insert

“showed that the purchaser was not under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 22, in clause 5, page 3, line 8, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 23, in clause 6, page 3, line 30, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 24, in clause 6, page 3, line 32, leave out

“a anwyd ar neu ar ôl 1 Ionawr 2009”

and insert “dan 25 oed”.

This amendment is linked to Amendment 17.

Amendment 44, in schedule 5, page 132, line 2, leave out

“a anwyd ar neu ar ôl 1 Ionawr 2009”

and insert “dan 25 oed”.

This amendment is linked to Amendment 17.

Amendment 48, in schedule 5, page 132, line 7, leave out from “berson” to end of line 8 and insert “dan 25 oed (“B”)”.

This amendment is linked to Amendment 17.

Amendment 45, in schedule 5, page 132, line 12, leave out from “person” to end of line and insert “dan 25 oed”.

This amendment is linked to Amendment 17.

Amendment 46, in schedule 5, page 132, line 38, leave out from “rhoi” to “a” in line 39 and insert

“yn 25 oed neu drosodd”.

This amendment is linked to Amendment 17.

Amendment 47, in schedule 5, page 133, line 2, leave out from “person” to end of line 3 and insert “dan 25 oed”.

This amendment is linked to Amendment 17.

Amendment 39, in schedule 5, page 133, line 16, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 40, in schedule 5, page 133, line 21, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 41, in schedule 5, page 133, line 26, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 42, in schedule 5, page 134, line 9, leave out

“born before 1 January 2009”

and insert

“over the age of 25”.

This amendment is linked to Amendment 17.

Amendment 43, in schedule 5, page 134, line 14, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 25, in clause 50, page 25, line 30, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 26, in clause 50, page 25, line 33, leave out from “substitute” to end of line 34 and insert

“under the age of 25 (‘the customer’) to be aged 25 or over”.

This amendment is linked to Amendment 17.

Amendment 27, in clause 50, page 25, line 37, leave out

“born on or after 1 January 2009”

and insert “under 25”.

This amendment is linked to Amendment 17.

Amendment 28, in clause 50, page 26, line 1, leave out subsection (3).

This amendment is linked to Amendment 17.

Amendment 29, in clause 50, page 26, line 28, leave out from “substitute” to end of line 29 and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 30, in clause 50, page 26, line 30, leave out from “substitute” to end of line 31 and insert “under 25”.

This amendment is linked to Amendment 17.

Amendment 31, in clause 50, page 26, line 33, leave out from “substitute” to end of line and insert “under 25.”.

This amendment is linked to Amendment 17.

Amendment 32, in clause 68, page 35, line 28, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 33, in clause 68, page 35, line 37, leave out

“shown on that document was before 1 January 2009”

and insert

“showed that the purchaser was not under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 38, in clause 72, page 37, line 28, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

Amendment 49, in title, line 2, leave out

“born on or after 1 January 2009”

and insert

“under the age of 25”.

This amendment is linked to Amendment 17.

[Dr Johnson]

The amendments do not stand in my name, and they are not amendments with which I agree, but they relate to a very important part of the Second Reading debate that goes to the heart of the principles behind the Bill. I have moved the lead amendment so that the debate can be heard in full and so that hon. Members can establish for themselves whether they wish to support the amendments.

I will refer to these amendments as the Maguire amendments, if that helps, as they were all tabled by the hon. Member for Epsom and Ewell, who is not on the Committee. It is, of course, the Whips who choose who goes on the Committee—[Interruption.] Sorry, can you hear me?

[Andrew Gwynne]

I can hear you.

[Dr Johnson]

Thank you. I am aware that the Whips choose who gets to go on Committees. Sometimes that is a blessing; sometimes it can be less welcome, particularly if it is a long Committee that goes on for months. For someone who is passionate about a cause, but is not aligned with the Whips’ view and is not chosen for a Committee, it can be frustrating not to have something discussed that they believe important. We are all here to represent our constituents and to think carefully about the legislation in front of us. Although the amendments were tabled by a Member who is not a member of my party, and I do not actually agree with them, I want to ensure that they get a proper hearing.

Amendments 17 and 18 would amend clause 1, which will introduce a prohibition on selling tobacco products, herbal smoking products and cigarette papers to any individual born on or after 1 January 2009. The Government’s intent is to create a tobacco-free generation by progressively restricting access to tobacco-related products for younger age groups as they age. This is a measure that was first discussed in the Khan report and was brought forward in the previous Tobacco and Vapes Bill, which was introduced by the Conservative Government under my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak), who wanted to ensure that we eliminate smoking as far as possible, for people’s health, but that we would not impose a criminal penalty on people who already smoke and thereby criminalise an addiction that is so difficult to give up. That is the reason for the rolling sale.

Under clause 1, sellers will be required to verify the buyer’s age using acceptable identity documents, which are listed as being passports, UK or EU driving licences or proof-of-age identity cards, known as PASS cards. If the seller relies on valid-looking ID showing that the buyer was born before 1 January 2009, or if they can demonstrate that they took all reasonable steps to avoid an offence, they have a legal defence against prosecution. Violating the clause is an offence punishable by a fine of up to level 4 on the standard scale; I am sure we will come on to what that means later. It is currently capped at £2,500.

This measure is part of a broader strategy to combat smoking by reducing access among younger generations and curbing the initiation of tobacco use. By enforcing strict age verification and imposing financial penalties, the clause aims progressively to eliminate tobacco use, contributing to long-term public health improvements.

New clause 17 would leave out

“born on or after 1 January 2009”

and insert in its place

“under the age of 25”.

That would make it an offence to sell tobacco products, herbal smoking products and cigarette papers to a person under the age of 25, rather than to a person born on or after 1 January 2009.

[The Chair]

Order. For the sake of clarity, we are referring to amendment 17, not new clause 17.

[Dr Johnson]

Thank you, Sir Roger. I am very grateful for your guidance. I think spending much of the night trying to get to grips with the various drafts has left me a little tired. I appreciate the difference. As you said, the process is somewhat confusing, but at least we are moving through it steadily.

Amendment 17 would significantly alter the scope of clause 1 by replacing the birth date-specific restriction of 1 January 2009. Instead of targeting individuals born on or after that date, the new provision would make it an offence to sell tobacco products, herbal smoking products or cigarette papers to anyone under the age of 25. That modification would shift the focus from creating a tobacco-free generation to implementing a uniform age limit similar to the one that we have already.

[Jack Rankin (Windsor) (Con)]

My hon. Friend knows that we disagree on the principle of clause 1, and my objection is primarily to creating two tiers of adults. One of the benefits of the Bill, as it is currently written, is that it is at least a time-limited measure. In other words, when that generation dies out, every adult will be one tier again. With amendment 17, however, we will effectively have two tiers of adults forever, so a 19-year-old will always—or until we change the law again—be able to drink but will not be able to smoke, and that will be set in stone. Does my hon. Friend agree that, even if she thinks we should create two tiers of adults for public health purposes, we should try to delimit that as much as possible, and therefore the principle of the amendment should not be accepted by this Committee?

[The Chair]

Order. Another thing colleagues might notice is that that was quite a long intervention. Customarily in Committee, as opposed to on the Floor of the House, it is not unusual for a Chair to allow a fairly long intervention, because quite often that obviates the need for a speech later. Be aware of that flexibility.

[Dr Johnson]

Once again, Sir Roger, I am very grateful for your guidance to the Committee. I was explaining the change in amendment 17, and my hon. Friend, like the very wise chap that he is, brings something forward that I had not really considered, despite my attention to this Bill over some time—and Members will be very much aware it is something that I have taken a long interest in.

My hon. Friend is absolutely right: some people argue that the Bill creates two tiers of adults—some who are allowed to smoke and some who are not. In fact, that is exactly what it does. Eventually, of course, people get older and older. I saw that the oldest person in the world sadly passed on in the last week or so, and she was 116. I am not quite sure about the age of the current oldest person in the world, but I suspect their age is similar. Therefore, I suspect that it will take quite a long time before my hon. Friend’s ideal of all adults being treated the same is once again achieved. I suspect that I will certainly be long gone before it does, and I anticipate that the rules we are proposing will last the rest of our lifetimes here today.

This modification shifts the approach from creating a tobacco-free generation to implementing a uniform age limit that applies universally, regardless of the buyer’s birth year. That simplifies enforcement because sellers would need only to confirm whether a buyer is under 25, and they would not need to do the mental arithmetic in their head that says, “Okay, that is their birthday, but how old would that make them?” The Minister, in his questions on Tuesday, raised the point repeatedly with one of our witnesses about whether it is simpler to have a date of birth or an age. My understanding is that a lot of tills nowadays will give a prompt to the person working behind the till to say, “If you are born before or after this date, that is where the 18 cut-off is.”

[Sadik Al-Hassan (North Somerset) (Lab)]

Will the right hon. Lady give way?

[Dr Johnson]

I thank the hon. Gentleman for the promotion—I shall mention it the Chief Whip and see how that goes!

[Sadik Al-Hassan]

My training and experience as a pharmacist over two decades involved working with systems such as tills that teach people how to ask for age verification. Does the hon. Lady agree that the Minister is spot on and that actually this is a moot point, because the software, support and training is already there across the country, including in independent shops, and age verification is quite easy to do?

[Dr Johnson]

I think it is straightforward to have an age and a date of birth to check. It could become more confusing if we ended up with a range of age-restricted products and the age for each of them was different, as that would require people to look at a whole spreadsheet of dates of birth.

[Sadik Al-Hassan]

Software systems I have worked with already have the facility to differentiate by product, including for razor blades and alcohol products. That already exists across retail and in a variety of retail premises.

[Dr Johnson]

The hon. Gentleman’s intervention highlights the fact that in Parliament we benefit from the experience of so many different people. Each of us comes to this place with our own history, backstory and experience of working in a whole range of different professions and jobs. That is one of the reasons why we go through these Bills line by line. It may seem to some extent slow and plodding to go through things so methodically, but that means that each person can, as he has, bring their experience forward and explain the ways that tills and such things work, which is really beneficial. I thank him for that intervention.

[Jack Rankin]

I slightly disagree with the hon. Member for North Somerset. It seems to me that over time, we have been getting more consistent in our understanding of what an adult is. Obviously, I am quite a young man, but when I turned 16, I could buy a lottery ticket, I could get married without my parents’ permission and I could join the Army. I could then learn to drive at 17. Many of those have been regularised in the last few years, so the age for buying lottery tickets is now 18 and one cannot get married before 18 either. That is part of ensuring consistency about what an adult is.

It may well be true that pharmacies have such technology, and I understand why, but most cigarettes are bought in small newsagents and I would not necessarily expect them to have the same technology. We should be supporting consistency in what an adult is—that is the direction in which legislation has been moving—and not creating added complexity.

[Dr Johnson]

I thank my hon. Friend for his helpful intervention. I do not know whether any Member present has worked in a small corner shop and could tell us whether they have the same level of technology. Perhaps the Minister or his officials know whether the same level of technology is used in shops across the board. I am afraid that I do not know the answer to that.

[Gregory Stafford (Farnham and Bordon) (Con)]

On that point, will my hon. Friend give way?

[Dr Johnson]

Yes; if my hon. Friend knows the answer, I would be delighted to hear it.

[Gregory Stafford]

I do not know the answer to that question, although I suspect that many such shops do not. Although I agree with my hon. Friend about the thrust of the Bill, something that does concern me comes not from the retailer point of view but the consumer point of view. At the moment—please do not disabuse me of this view—when I go and buy a bottle of wine or a pint of beer, I am very rarely, if ever, IDed. But I accept that if, on the rare occasion that I am IDed, I do not have a form of identification, it is not the biggest problem in the world. Most of the time, however, people can see that I am over the age of 25 or over the age of 18, so it does not happen.

If the Bill were to go forward in its current form, every smoker would essentially have to carry a form of ID all the time. Some, especially the older generation, might not have a suitable form of identification and some—if they are, like me, a civil libertarian—might not want to carry ID, so how do we get around that point in the Bill to ensure that we do not end up having ID cards for older people by the back door?

[Dr Johnson]

My hon. Friend makes an important point. Some people are averse to carrying ID—it is not something that bothers me personally, but I am aware that for some people it is a sticking point. In a previous debate before the election, the former Member for Norwich North, Chloe Smith, made the point that not all adults will be affected by this legislation, but only a relatively narrow band of them.

The last time I was carded for ID, I was 38. I was not buying the typical basket of a 17-year-old; I was buying flowers—orchids—and a bottle of champagne for someone’s housewarming, as well as some strawberries, because she had phoned to ask me to get some when I was on the way, as she was running out at the housewarming party. I was IDed, so I was not able to buy the champagne for her, because the supermarket would not let me. That was disappointing for both of us, but I accepted the fact that if ID could not be shown and they genuinely believed that I looked under 25, that was the law and it had to be accepted. That is not universally the case, and I am aware—as we heard in evidence—that retailers can sometimes receive significant verbal and occasionally violent abuse when they ask for ID in that way.

[Andrew Gwynne]

Will the Minister give way?

[Dr Johnson]

I keep getting promoted!

[Andrew Gwynne]

The shadow Minister is having a good morning, having not had a particularly great evening last night. With no disrespect to the hon. Member for Windsor, who made this point in his intervention, by the time that the age of sale is legally his age, we hope that smoking prevalence in that age group will be next to zero, and therefore it will not be an issue.

[Dr Johnson]

I thank the Minister for his intervention, although I am not sure what he is implying about the age of my hon. Friend the Member for Windsor—

[Gregory Stafford]

Wisdom!

[Dr Johnson]

Wisdom or age, but I shall be cautious not to answer too closely.

[Dr Danny Chambers (Winchester) (LD)]

I accept the view that having to provide ID will be inconvenient and frustrating for some people, but all the expert witnesses on Tuesday pointed out that many smokers do not wish the younger generation to continue smoking. I think that most of them would probably be of that view that the slight infringement of their civil liberties in having to carry ID is a small price to pay for the knowledge that they are preventing smoking from being taken up.

[Dr Johnson]

The hon. Gentleman is right that the measures have broad support. Certainly, the pollsters who have investigated people’s views of this legislation—that proposed by the previous Government and the legislation as it is now, with some tweaks to it—have found the public to be overwhelmingly positive. We legislate because we are elected by those people. On the basis of their opinions and given that policing in this country is done by consent—

[Jack Rankin]

On the civil liberties point, I disagree with my hon. Friend entirely, as she well knows. The point about civil liberties is that they need protecting not when the majority agree, but when the majority do not agree. The hon. Member for Winchester made the point that all the experts agreed. We listened to a cohort of experts who were from a variety of fields, but they were also all in some way paid for by the state and had some vested interest in the Bill—they were not retailers, consumers and so on— [Interruption.] We had one person out of 15. It was really not a well-balanced affair at all, so I disagree with that point.

[Dr Johnson]

I think that comes back to the issue of choice. The chief medical officer said that the only choice we make is the choice to have that first hit of nicotine; after that, our choice is taken from us by the profound addiction that we experience. One of the challenges with stopping smoking is that people get powerful cravings. Despite their overwhelming desire to stop, the cravings drive people to have a cigarette that they do not really want or would rather not have because of their addiction.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

May I de-aggregate the two separate, distinct points about the age that will be defined on a driving licence or passport versus the concept of having ID?

On the first point, most identity documents will contain a defined birth date, which makes it easier for a retailer or sales individual to check the date. They do not contain an age, per se, but they have the date of birth, which creates an easier means of assessment.

The second point about having ID is a separate, distinct issue. In some countries in Europe, they put identity cards on the back of credit or debit cards, for instance. The question of how we would define that identity is a separate element or, perhaps, a separate amendment to the clause that may expand the list of identity that would be bona fide, but we nevertheless use the concept of identity already in many cases to purchase products.

If we are against identity cards or any form of identity, how are we supposed to look at any product with regard to sales, including ones that we might be challenged on, such as when the shadow Minister was purchasing her orchid in a venue? We accept the premise of identity when we sell any licensed product at the present time, so we are merely extending the same premise.

[Dr Johnson]

I thank the hon. Gentleman for his thoughtful contribution. I should be clear that I do not have an issue with carrying my driver’s licence or ID with me, although I am aware that some people genuinely do. If he wants to intervene again, I would be interested to hear whether that means that he is comfortable with voter ID, because his party, prior to the general election—I appreciate that he would not have voted on it, because he was not—

[The Chair]

Order. I have been fairly lenient up to now, but you are pushing your luck.

[Dr Johnson]

I merely make the point that ID is used for purposes other than to buy cigarettes and tobacco, Sir Roger.

I want to return to a point raised in an earlier intervention about the group of people who would be asked to carry ID. If somebody’s birthday is, like mine, in 1977, it is sadly unlikely that anyone will think that I was born in or after 2009. The cohort affected will be those born around 2006 or 2012. I do not see this as an ID for old people through the back door, because, as I view it, there will be a cohort of people within five or even 10 years on either side of the 2009 boundary who will find themselves required to carry ID if they wish to smoke. If they do not wish to smoke or use any tobacco, cigarettes or smoking products, they will not be affected.

[Jim Dickson (Dartford) (Lab)]

Will the right hon. Lady give way?

[Dr Johnson]

I keep getting promoted—that is fine.

[Jim Dickson]

Sorry. Does the hon. Lady accept that the changes that have resulted in significant decreases in smoking prevalence over the last 20 years have all been about imposing additional burdens on those who wish to smoke, such as on where they can smoke and how they can buy the products, which are now in lockable cupboards rather than out on display in shops? Asking someone who wishes to smoke to carry ID is an increased burden—a very small one, but an increased burden none the less—and it is all part of the policy family that has enabled us to reduce smoking prevalence from between 25% and 30% 20 or 30 years ago to 12% now, and that will hopefully help us reduce it to 5% or 0% in the future.

[Dr Johnson]

It is certainly the case, as I am sure we will come to when we discuss clause 1 itself in more detail, that where tobacco control measures have been brought in—on place, price, display or age group—they have led to a fall in smoking, which is a welcome and intended outcome.

I have been lumbered with a lot of interventions and I did not get to answer one point in full, which was on the issue of adult consistency. Amendment 17 would create two groups of adults—those aged between 18 and 25, who would be unable to smoke or use tobacco products, and those over 25, who would. The previous Government sought to say, “This is when you become an adult—when you turn 18. Before that, you are a child, and we will use child protection and safeguarding measures, so you cannot get married or buy a lottery ticket.” We sought to create consistency across the board, because consistency helps people to understand what the law is, which makes it easier for them to follow it and give a greater level of consent to it.

Let me turn back to the amendments. I cannot speak directly for the hon. Member for Epsom and Ewell, who tabled the amendments, but one of the reasons that has been given to me for increasing the age to 25 is that people normally begin smoking when they are young. Most people begin before they are 16, and many more before they are 21. That means that in principle, if we raised the age to 25, we would find that people did not start smoking in any great numbers, because their brain and their thinking process would be more mature, so they would be less likely to start. It is also the case that if someone starts smoking at a younger age, they are more vulnerable to the addictive properties of nicotine, as we heard in the impact assessment and in medical evidence.

[Tristan Osborne]

One of the challenges with introducing an age restriction of 25 is that a 19-year-old can smoke today, but that rule would suddenly take away a right that they previously had. However, the proposal on the table is for a sliding scale, whereby they will never have had the right to smoke. We are not taking away a right that someone might have had previously. Does the hon. Lady accept that there is a slight difference between having an age restriction of 25 and a sliding increase in age?

[Dr Johnson]

The hon. Gentleman is exactly right, in my personal view, to say that. As we heard before, the previous Government wanted to ensure that in bringing forward a Bill, they were not going to criminalise people with an addiction to a product that they could not quit, and therefore leave them in a situation where they could no longer buy the product they needed to feed that addiction. Obviously, we want them to stop, but we do not want to make them stop by making them criminals. So, yes, I would be concerned that sticking in a sudden increase to 25 would mean that any smokers legally accessing tobacco products between the ages of 18 and 25 would find themselves somewhat stuck. That is not something I would wish to see.

[Gregory Stafford]

As a point of clarification, what the proposals in the Bill, and indeed the amendment, deal with is the selling of tobacco products, not the consumption. So when we are talking people not being able to smoke, they would be able to, but a retailer would not be able to sell them tobacco products. I say that just so we are clear what we are talking about.

[Dr Johnson]

According to clause 1, my hon. Friend is right.

[Gregory Stafford]

Yes, under this clause.

[Dr Johnson]

Under this clause, it is true that somebody would not be able to purchase tobacco, but clause 2 means that somebody cannot purchase tobacco on behalf of somebody else. It would not be possible legally for somebody under the age of 25, if the clause was amended, or somebody born after 1 January 2009, if it was not, to buy tobacco, but it would also be illegal for them to use it because, under clause 2, which provides for proxy purchase, the person who gave the younger individual tobacco would themselves have broken the law.

--- Later in debate ---

[Euan Stainbank (Falkirk) (Lab)]

Can we acknowledge that youth initiation often starts before the age of 18? Moving the age to 25, as this amendment proposes, would not automatically shift the dial on when youth initiation starts by seven years. The Bill permanently demarcates a smoke-free generation that we are specifically targeting.

[Dr Johnson]

When Parliament brings in any law of any kind, most people will follow it—the vast majority of the public are law-abiding citizens who want to know what the law is and obey it. However, whatever law we bring in, there will always be people who will disobey it. Even if cigarettes were completely banned, people would buy them. Many products—cocaine and heroin, for example—are banned, but some people still access and purchase them, so the Bill would not eliminate the issue completely.

Perhaps I could answer the hon. Gentleman with a couple of statistics. According to the Government impact assessment, 66% of smokers begin smoking before they are 18, and 83% before they are 20. Yet the research shows that three quarters of those smokers, were they to have their time again, would prefer never to have started smoking.

The hon. Gentleman may be aware that the age of sale for cigarettes was previously 16 and that a previous Government made it 18 instead. The effect was reviewed by scientists at University College London in 2010, and we saw a fall in smoking in all age groups. That is in line with what we have seen across a lot of the western world: smoking rates have declined. Actually, if we look at the difference between the younger and the older people, that fall was 11% in those in the 18 to 24 age group, but 30% in those aged 16 to 17. That meant that the age group targeted by the ban was much more likely not to start smoking. That is the start of the smoke-free generation, and we hope that a similar pattern will be seen and roll forwards.

[Sarah Bool (South Northamptonshire) (Con)]

On that point, according to Cancer Research, about nine in 10 people start smoking before the age of 21. Surely, if we increase that to 25, by default we are preventing more people from starting by that point. Going back to enforcement, I think that 25 is more of an age by which we have caught the youth and stopped them from starting.

[Dr Johnson]

I understand that opinion, and I guess that is what is behind amendment 17, which was proposed by the hon. Member for Epsom and Ewell. The evidence—certainly that which we heard on Tuesday from the chief medical officer and others—suggests that raising the age as far as 25 will help, and the Government’s impact assessment says they considered that option; they thought it would help to reduce smoking levels, and I think that that is true. However, it does bring the risk of either creating a great delay in bringing these measures in, because we want to wait until all current 18-year-old smokers are 25, or criminalising people who are currently legal smokers. If we still ended up with people starting smoking at 25, we would have not created that smoke-free generation, because we would not have brought those rates of smoking down as close to zero as possible. Given the harms caused by smoking—I am sure we will go through them in the debate on clause 1—it is important that we do all we can to reduce the number of smokers.

[Jim Dickson]

On the point made the hon. Member for South Northamptonshire, a common maxim applied to our public policy on harmful substances is that we permit. Even having a permission to smoke and buy cigarettes after the age of 25 means that society is effectively saying that that is fine to do, albeit harmful. We do not do that with very many other harmful substances, so it would seem odd to do it with cigarettes.

[Dr Johnson]

I think this comes down to the libertarian argument. Someone can be an adult either because they are over the age of 25, as per amendment 17, or because they are born before 1 January 2009, as per clause 1, unamended by amendment 17. Essentially, whichever type of adult someone is, we would normally say, “If you are an adult, you make an informed choice about which substances to take and what risks you want to take with your life.” But two thirds of people who take cigarettes will die as a result.

There are other substances that we do ban, and there is a scale. There is the libertarian who would have us make all drugs—whether cannabis, cocaine or heroin—free for everyone to use and to buy as they choose. That is not a position I subscribe to, but it is a position that some subscribe to. There are also those who would go further and ban many more substances, such as certain foods that are particularly sweet or fatty but otherwise enjoyable. There is a spectrum, and I think—society probably agrees—that the judgment is that tobacco is very harmful to those who consume it, and potentially to those around them, in a way that does not offer them any significant benefit. I am a doctor, and when we prescribe medication, we look at the risk balance between the benefits of the substance that we are giving somebody and its potential harm. However, with smoking, as far as I can tell, there are no real benefits, other than an emptier pocket—because an individual has spent so much money—worse lungs and worse health.

[Sarah Bool]

Just to play devil’s advocate, there will be some who will say that they have a cigar from time to time, and that will be caught by this legislation. Cigars are not used in the same way as cigarettes, and they are not seen to be as highly addictive. People do not chain smoke cigars. Is it fair in that instance to remove their liberty to smoke a cigar? I am just pointing that out as a non-smoker.

[Dr Johnson]

I will come back to that point when we get to the debate on clause 1 and tobacco products. It is an important point, but I am aware of the Chair’s tolerance, and the discussion at the moment is on amendment 17.

On the rise in age of sale, I talked about research that UCL did in 2010. Further research done in 2020 looked at the effect of raising the age of sale from 16 to 18 and found that the rates of ever smoking—people who had ever had a cigarette—had declined more among those aged 16 to 17 than among those aged 18 to 24. That supports the position that if access is restricted for younger people, they are less likely to smoke, which goes back to the point that most people are law-abiding citizens and wish to follow the rules. Restricting sale also emphasises the dangers to people in their own minds, which is a point we will come back to in the discussion on vapes.

Let me move on to amendment 18, which is linked to amendment 17. It would leave out the words

“shown on that document was before 1 January 2009”

in clause 1 and insert the words

“showed that the purchaser was not under the age of 25”.

This is a technical point to allow the ID to reflect the principle of who is allowed to purchase tobacco. It is a broad shift. In the view of the proposer, transitioning from a birth date-specific restriction to a general age-based restriction simplifies compliance for sellers by focusing on the current age. In my view, it actually makes it more complicated, because there is more mathematics to do in one’s head. If one is fortunate enough to work in a pharmacy, as the hon. Member for North Somerset discussed, it requires two dates in the computer, which is more difficult than one.

[Sarah Bool]

I understand the point about the potential complexities, but there is a risk on enforcement that whenever anyone goes to buy cigarettes in the future, they will have to have some form of ID. That creates a distortion: someone could just be assumed to be over the age of 25, whereas under the Bill they will always have to be checked.

[Dr Johnson]

My hon. Friend is making a point about ID for purchasing things. It is reasonable to ask people to have ID when they go and collect a parcel, to make sure that they are getting a parcel for the right address. In my view, it is reasonable—I do not think my hon. Friend voted for it, but I suspect she would support the idea—to provide ID in order to vote to maintain our democratic process. Having ID to buy an age-restricted product does not seem overly burdensome. I accept that it makes it more difficult for people below that age, because it provides a hurdle for them to overcome, in terms of potentially accessing some sort of fake ID. Most people want to obey the law, and that is an extra step in breaking the law that they would have to take, which they would not wish to do. I think we may have to agree to disagree on this point.

Amendment 22 would amend clause 5, substituting the words

“born on or after 1 January 2009”

with the phrase

“under the age of 25”.

That is consistent with the changes that would be made by amendment 17 to clause 1. Amendment 23 would make a similar amendment to clause 6, again changing the date. The other amendments in this group are amendments 24, 44 and 48, which is in Welsh—I trust that it says the same thing, but since I do not speak any Welsh, I cannot be clear on that. This group also includes amendments 46, 47 and 39 to 43. Again, they all seek to change the thrust of the Bill away from a rolling smoke-free generation to a fixed age of 25.

--- Later in debate ---

[The Chair]

Before we proceed, I shall not be in the Chair this afternoon, but I would be grateful if the shadow Minister could indicate whether she wishes to press amendment 18 as well as amendment 17, whether it is only amendment 17, or whether she may decide in due course not to press either. That is a matter for later, but it would be helpful to know if she wishes to press either.

[Dr Johnson]

It was my intention to ensure that the debate, even if it is on issues I do not support, got a hearing and that Members of the House who wished to contribute were able to do so. The purpose was to allow the amendments to be debated. I do not intend to push any of them to a vote.

[Jack Rankin]

I would like to support those amendments, if that changes anything, Sir Roger.

Tobacco and Vapes Bill (Fifth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 14th January 2025 Public Bill Committees

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

Before we were rudely disturbed by the weekend—I hope that all Members had a good one—we were coming to the conclusion of the debate on this grouping. I thank all hon. Members for their valuable contributions to discussions last week; I will continue to respond to the outstanding points raised in the previous sitting.

On the Windsor framework, we are proud to say that the Bill is UK-wide and has been developed in partnership, in full, with the Scottish Government, Welsh Government and Northern Ireland Executive. This Government, and I hope this House, intend the smoke-free generation policy to apply to all four nations.

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

I have a quick question for the Minister about some of his answers last week about the clause. He said that tobacco products would include bongs, and was quite passionate about that. But clause 48, which is meant to be read in relation to clause 1, defines “tobacco product” as something that contains tobacco. I have seen bongs made of glass, ceramics and various other things, but I have never seen one that contains tobacco. It is certainly easy to make one that does not contain tobacco. I am therefore interested in why the Minister believes that the Bill equates bongs and tobacco products.

[Andrew Gwynne]

I am grateful to the shadow Minister for that. We will come on to those issues in more detail when we eventually reach those clauses, which given the rate of progress so far may be in the early hours of tomorrow morning, if Members decide so. The only reason why such paraphernalia is on display and legally sold is to consume tobacco, but we will get more information on that for her when we get to clause 45, which covers that issue.

I was talking about the Windsor framework. We believe that this policy is in accordance with our international obligations. In terms of what products are in scope, the Bill captures all tobacco products, including shisha, cigars and heated tobacco. That is because all tobacco products are harmful. There is no safe level of tobacco consumption. For example, tobacco smoke from cigars leads to the same types of disease as the smoke from cigarettes. In England alone, around five times as many people smoke other tobacco products, such as cigars, as did a decade ago, and children are a part of that increase. Shisha, to which the hon. Member for Windsor referred, also causes the same diseases as cigarettes, including cancer, respiratory diseases and cardiovascular diseases. The volume of smoke produced in the average 45-minute shisha session is estimated to be the same as around 25 cigarettes’-worth of tar, 11 cigarettes’-worth of carbon monoxide and two cigarettes’-worth of nicotine.

Finally, there is clear evidence about the toxicity of heated tobacco. The aerosol generated by heated tobacco also contains carcinogens, and there will be some risk to the health of anyone using those products. The crucial point is that, unlike with vapes, there is no evidence that heated tobacco supports smoking cessation. We must ensure that the Bill is future-proofed to include new or novel products, such as heated tobacco, to protect the public from the harms of tobacco use.

Although cigarettes are the most used form of tobacco, we do not want to create loopholes in the Bill so that the tobacco industry can pivot and continue addicting people to tobacco. As I said previously, the issue is about saying, “The market share you’ve got now is it. We are stopping the conveyor belt.” As we know, if we block one road, the tobacco industry finds another route through. We are making sure that the Bill is as watertight and future-proof as possible so that the tobacco industry can no longer continue to trade with another product that harms and addicts future generations.

--- Later in debate ---

[Andrew Gwynne]

I stand by what I have already said. The intention is to work with the retail industry during the long lead-in time to get the mechanisms in place that allow them to adequately enforce the measures in the Bill. We do not want to get this wrong. I politely say to the hon. Lady, however, that in the first instance it is highly unlikely that a veteran born before 1 January 2009 will seek to purchase cigarettes or other tobacco products and be queried about their age. I will take on board what has been said and, if what I said earlier is incorrect, we can perhaps come back to the issue.

I want to come back to tobacco products because the point is crucial. We want to ensure that the tobacco industry has that conveyor belt cut-off. It is therefore rational for all the products that I have mentioned to be included in the smoke-free generation legislation. That will prevent anyone from taking up use of the products in the first place.

As I stated in my opening speech, I am grateful to the hon. Member for Windsor for bringing the discussion before the Committee, but while I appreciate his intention, it is not something the Government support. In relation to the amendments, I say to the Committee that the Government do not believe it is appropriate to establish a more lenient penalty regime for the offences, or to introduce a mandatory age-verification policy.

The clause seeks to change the age of sale for tobacco products, herbal smoking products and cigarette papers in England, Wales, Scotland and Northern Ireland so that no one born on or after 1 January 2009 will legally be sold those products. The Bill will be the biggest public health intervention in a generation, breaking the cycle of addiction and disadvantage, and putting us on track towards a smoke-free UK. For those reasons, I commend the clause to the Committee.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[Dr Johnson]

On a point of order, Mr Dowd. May I ask a procedural question? I heard some Members shout, “Aye”, and some Members shout, “No”. In the previous session we recorded what Members said, but we have not done so this time. Can I inquire as to what the reason for that is? Last time there was a vote that was then recorded for Hansard, but that has not happened this time.

[The Chair]

That is because a Division was not called. I made the decision that the Ayes had it in this particular case and that the Noes did not. If a Member wished to challenge that at the time and call a Division, they were free to do so. They did not—

--- Later in debate ---

[Dr Johnson]

How would they do that?

[The Chair]

They would just indicate that they wished for a Division—keep shouting, in effect.

[The Chair]

Regrettably, we have moved on.

Clause 2

Purchase of tobacco etc on behalf of others

[Dr Johnson]

I beg to move amendment 58, in clause 2, page 2, line 23, at end insert

“, save if it is a first offence.”.

See explanatory statement to Amendment 59.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 59, in clause 2, page 2, line 23, at end insert—

“(4A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or provides for a discretionary caution.”.

This amendment, together with Amendments 56, 57, and 58, prevents penalties under sections 1 and 2 beyond level 3 for a first offence and provides for a discretionary caution.

Amendment 75, in clause 69, page 36, line 31, at end insert

“, save if it is a first offence.”

See explanatory statement to Amendment 76.

Amendment 76, in clause 69, page 36, line 31, at end insert—

“(4A) A person who has admitted guilt of a first offence under this Article is liable to a fine not exceeding level 3 on the standard scale or a conditional caution.”

This amendment, together with Amendments 73, 74, and 75, prevents penalties for a first offence under Sections 68 and 69 being beyond level 3 and provides for a cautionary warning.

[Dr Johnson]

Amendments 58 and 59 seek to amend clause 2. Will we get the chance to debate clause 2 later, Mr Dowd?

[The Chair]

Yes.

[Dr Johnson]

Amendments 58 and 59 go back to the principle of proportionality. I know the Minister gave his views on that last week, so I will not go on at length. But there is a difference between the individual shop assistant who may make an intentional error, and a shop that continues to repeatedly and recklessly sell to children or people who are too young to buy an age-restricted product. That is the principle of the amendments—[Interruption.]

[The Chair]

Order. Can we be clear? If Members want to speak in the debate they should bob, just like in the Chamber. If you wish to intervene, Ms Jarvis—I assume you do, but I do not know—you could bring your request for the intervention to the person who is speaking.

--- Later in debate ---

[The Chair]

Okay. I am sure the shadow Minister will note that.

[Dr Johnson]

My apologies. I was explaining the principle behind Opposition amendments 58 and 59, which are in my name. I do not know whether the hon. Member for Eastleigh was present on Thursday afternoon. Clause 2 refers to a “person” but does not specify who that person is, and there is as yet no guidance. The Minister said that the person could be the shopkeeper, the shop worker, the chief executive officer or whoever trading standards decided was the right person.

The fines to deter or punish illegal behaviour would necessarily need to be significantly larger for a large corporation than for a young chap of 19 working a few hours in the corner shop on a Saturday afternoon, for whom some fines would be quite punitive. The amendments allow for first offences to be treated leniently, in comparison with repeat offences, and their aim is to encourage the Government to think more carefully about guidance. When the previous Bill was introduced last Easter by the Conservative Government, with very similar wording in many cases, that Government produced guidance on how those charges would be applied. I am trying to encourage the Government to do the same thing. That is the purpose of the amendments.

I will endeavour to speak a bit louder. I do not know whether the hearing loop is working—

[Andrew Gwynne]

It is not.

[Dr Johnson]

I apologise again for not speaking loudly enough.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion to the Committee. As we have already argued, the amendments would create a more lenient penalty regime for the offence of purchasing tobacco, herbal smoking products or cigarette papers on behalf of someone under age—commonly known as proxy purchasing. In England, Wales and Northern Ireland, the amendments would create an exception to the maximum penalty that a person could face for committing that offence, if it was the person’s first offence. The amendments would establish that someone who admits to committing an offence for the first time would be liable, on summary conviction,

“to a fine not exceeding level 3 on the standard scale”,

which is £1,000, or liable instead to a discretionary caution in England and Wales or to a conditional caution in Northern Ireland. That is one level lower than the fine for which someone who committed that offence would be liable under the current legislation in England and Wales—level 4, which is £2,500. It is two levels lower than in Northern Ireland, where the fine would be at level 5, which is £5,000.

The amendments would have a similar effect on first-time offences as amendments that we have already discussed. If the Committee is content, I will not repeat myself as the rationale for asking the shadow Minister to withdraw the amendment remains the same as that for amendments that we have already covered.

[Dr Johnson]

Amendments 75 and 76 have the same principle behind them, so I will not repeat myself. They relate to clause 69; as hon. Members will recall, clause 69 amends Northern Ireland legislation that is similar to the legislation in clause 2. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

There is a technical hitch with the sound. We will suspend to sort it out.

--- Later in debate ---

[The Chair]

We are considering amendment 59 to clause 2, which was debated with amendment 58 to clause 2. Dr Johnson, have you decided whether you want to press amendment 59 to a Division?

[Dr Johnson]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Dr Johnson]

On a point of order, Mr Dowd, I just wanted to understand. In this morning’s groupings, which were sent by the Clerks, it appeared that not only amendments 58, 59, 75 and 76, but amendments 19 to 21 and 34 to 37 were to be debated before clause 2 stand part. Why were those latter amendments not called?

[The Chair]

As I indicated, the point had already been debated, so it was my decision that we would move on.

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

--- Later in debate ---

[Andrew Gwynne]

The hon. Gentleman makes a reasonable point. The Bill ensures that no one over the age of 18 is legally able to purchase tobacco products on behalf of someone under the legal age of sale, and there is a differential over time there. The age of 18 was chosen as it avoids criminalising children. This measure applies to all adults, and it does not allow for any ambiguity in law in the future. For example, it captures a situation in which someone over the age of 18, but under the legal age of sale for tobacco, attempts to buy products for a child. This action would be restricted, and the liability would not only be on the person selling the tobacco product, but also on the adult attempting to buy that product for the child.

These clauses align proxy purchasing offences with the new age of sale restriction for England, Wales and Northern Ireland. They provide a defence if a person charged with this offence can prove they had no reason to suspect that the person was born on or after 1 January 2009 or they can prove that they had no reason to believe that the other person intended to use the cigarette papers for smoking, which is in line with existing defences. These clauses are essential to ensure that there are no loopholes in the age of sale legislation, and they build on what works in the current age of sale legislation. I therefore commend the clauses to the Committee.

[Dr Johnson]

Clause 2 makes it an offence for a person aged 18 or over to make a proxy purchase of tobacco products, herbal smoking products or cigarette papers for a person born on or after 1 January 2009. It essentially stops an older person going in and buying those products for a younger person, which we are aware has been happening for many years with both tobacco and alcohol. If found guilty, the person committing the offence faces a level 4 fine on the standard scale, which hon. Members will recall is £2,500.

The clause replaces the current offence under section 91 of the Children and Families Act of someone aged over 18 buying or attempting to buy tobacco products or cigarette papers on behalf of someone aged under 18 in England and Wales. In many ways, that seems a sensible consequence to clause 1. If we want it to be illegal for people born after a set date to have tobacco, it makes sense to ensure that people cannot buy it for them.

However, I have some questions, particularly in relation to cigarette papers. I did not particularly talk about cigarette papers in our discussion of clause 1 because they are more rightly talked about in relation to clause 2, which treats cigarette papers differently, in so far as it makes them illegal unless a person can prove that they are using them for something else. I looked into what that something else might be. I naively thought that cigarette papers were essentially just bits of paper of a particular thinness that could be rolled up and stuck together with a little gum arabic once somebody had rolled whatever they wanted to roll inside them; in fact, that turns out not to be the case because of the law.

The papers contain ethylene-vinyl acetate, which makes them more fire-resistant. The sad situation is that every year people smoke in bed or in their armchair, fall asleep and cause themselves burns, and sometimes even cause death or house fires. The ethylene-vinyl acetate—a sort of plastic—added to cigarette papers helps them to self-extinguish and reduces the risk of fires; we know that some particularly dreadful fires, such as the Kings Cross fire, are believed to have been caused by loose cigarettes.

The cigarette papers are essentially made from plant fibre, such as bamboo flax and rice, but they can be flavoured and coloured. In the evidence given to the Committee last Tuesday, we heard about the tobacco industry’s aim of ensuring that younger people are enticed by colours and flavours. A quick look at Amazon—other sellers are, of course, available—reveals that people can buy cigarette papers in a whole range of bright colours. People can also buy cigarette papers with pictures of cherries, apricots, bubbles and all sorts of things on them. I thought it was interesting that that has not been covered in relation to cigarette papers. Why give an exemption allowing them to continue to be sold when the reality is that they will continue to be used for rolling either illegal tobacco or other forms of illegal drug?

[Gregory Stafford]

Is my hon. Friend saying that cigarette papers have a specific definition in law and therefore that the papers she talks about, which have chemicals to make them fire-resistant and so on, will be banned, or is she saying that the clause will ban anything that could be used as a cigarette paper within the law? If she does not know the answer, perhaps the Minister can pick that up when he responds.

[Dr Johnson]

Clause 48, which we obviously have not come on to yet, gives the interpretation of part 1 and all the definitions. The definition of cigarette papers in the Bill includes

“anything…to be used for encasing tobacco products or herbal smoking products for the purpose of enabling them to be smoked”.

Different chemicals are put in, believe it or not, to make the ash whiter—people are concerned, when they have burnt their cigarette, with the colour of the ash that has fallen from it, which seems remarkable to me. Calcium carbonate, magnesium carbonate and titanium oxide can be added to affect the colour of not just the paper, but the ash produced. Seignette salts—sodium potassium tartrate and sodium citrate—are also added to make it burn faster, so that people go through cigarettes slightly more quickly. Then there is the glue of the acacia gum.

As far as I can tell, it is impossible to find out what is in the cigarette papers that one might wish to purchase; if one looks online, it is very hard to work out what is in them. I have seen medical reports of people allergic to the ingredients having: cheilitis, or inflammation of the lips; circumoral—around the mouth—inflammation; and finger dermatitis. If one is selling a ham sandwich, it is important to include the ingredients so that people know what it is in it, but it seems that for cigarette papers that is not the case and I am not entirely sure why. It is also the case that some commercially available papers contain copper, chromium and vanadium. As they burn, the pigments can lead to very high levels of exposure. These are not inexpensive; Amazon sells a random choice of eight flavours for £9.99. The issues are worth considering. It has been proposed that individual cigarette papers have on them a message saying “Smoking is bad for you” or something along those lines, but does that not involve adding further chemicals to the paper and therefore further risk?

Clause 2(3) states:

“It is a defence for a person charged with an offence”

of proxy purchasing

“to prove that they had no reason to suspect that the other person intended to use the papers for smoking”,

To which the somewhat obvious question is, “What on earth else would one use cigarette papers for?” With some trepidation, I asked Mr Google. Initially, all I could find was that they are used for smoking joints of cannabis, which did not seem to me a particularly good reason—the smoking of another illegal substance—for the Government to exclude them. Then I found out that some people use them for woodwind instruments. They place them underneath the key and press the key down, which allows extraneous water to be soaked up. They then release the key and pull the paper out. That helps to dry the instrument, prolong its life and prevent damage. Clarinet players—I did learn the clarinet but I did not know this; maybe that is why I was not so good at it—or players of the oboe, bassoon, flute or saxophone can buy cigarettes papers for that purpose.

The question of whether the Government need to provide an exemption for cigarette papers hinges on whether there is an alternative for the public to use for their woodwind instruments—and there is, of course. It is obvious in some respects that the market would provide one were cigarette papers banned. Connoisseurs of such instruments tell me that cigarette papers are not ideal to use for this purpose because of the additional, potentially toxic chemicals they contain—one is potentially inhaling bits of the chemicals back in—and because it is not ideal to get traces of the gum on one’s instrument. It is possible buy Superslick Pad and Yamaha cleaning papers. As far as I can tell, they do not contain toxic chemicals, because nobody would be interested in whether the ash burnt from them was white or otherwise since no one is going to set fire to them. Is it therefore really necessary to have a specific exemption for the use of cigarette papers for instruments, when in practice that is unlikely to be what they will be used for? There is an alternative and the most likely use—I think the Minister will understand this—is that they will be used for smoking joints.

[Sarah Bool]

I agree with everything my hon. Friend says. My first question was, “Well, what else they would be using cigarette papers for?” The second question—which maybe the Minister can answer—is about the level of proof. This comes up not only in clause 2(3), but elsewhere in clause 2. I know that the Minister will say, in relation to clause 2(3), that this is in line with legislation as it currently stands, but if we are tightening up on the whole, perhaps this is an area that we should consider tightening up further?

[Dr Johnson]

Indeed, it does seem contradictory, if not counterintuitive. It also leaves us with a bizarre situation where, were someone to be a bassoon player, for example, and they wished to buy these products to use for the alternative purpose of drying their keys, then they would have to get someone else to buy them because they would not be able to buy them themselves. For a child born after 1 January 2009 and learning to play such an instrument, either the market will need to provide another opportunity to buy such a product, or the child will need someone else to buy the product for them. That does not make sense. The rolling age of sale that we discussed in clause 1 means that, over time, the number of individuals wanting to buy the product for their instruments but not allowed to, compared to the number of people allowed to, would inevitably diminish. We would have a larger group of people trying to find an ever smaller group of people to buy their cigarette papers for them for that purpose. To some extent, it would be more sensible to remove subsection (3) all together because it creates a loophole that will be used almost entirely for illegal uses of these papers. There is a market already providing a reasonably priced alternative for people to use for their instruments—which in practice are better for instruments in any case.

The final point is on the burden of proof. As a defence, someone purchasing the product on behalf of another has to prove they have no reason to suspect that the person was born on or after 1 January 2009. What does that really mean? Is that a reversal of the burden of proof? Is it saying a person has to prove their innocence rather than the state having to prove them guilty? In what circumstances would it apply? In what circumstances is it necessary for someone to buy cigarette papers, other than the oboe player or the saxophone player? I guess if someone in his or her 70s attends a corner shop but has forgotten their ID, they could ask somebody older to buy the papers for them; I guess that would be okay. They may find that they have come with a veterans card, thinking that they can use it because it is usable for voter ID, but that particular type of ID is not included; we have discussed widening the scope of those documents.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

I understand that the term “cigarette paper” clearly indicates that the primary use for such an item is likely to be tobacco usage. However, it is not exclusive. As a model maker, I use cigarette papers in model making. I understand they are also used in art and in other activities. Although I am not suggesting that there are no alternative products to cigarette papers, it is not 100% exclusive. With respect, I think the clause refers to a person buying cigarette papers for another individual for a purpose other than smoking—if that can be proved. I accept what the hon. Lady is saying, but think she is stretching the point quite a lot.

[Dr Caroline Johnson]

I searched quite extensively for other uses of cigarette papers and had not come across that one; that is very interesting. I do not know whether the hon. Gentleman thinks they need to have pictures on them—perhaps that helps with the art. I think there is still a difference in a cigarette paper that contains extra toxic chemicals to help it burn a particular colour, for example. I am not sure whether there is any particular art or model making application for having the cigarette paper with all the chemicals in, as opposed to any other type of paper that is produced for the purpose. Inevitably, the market would produce a non-cigarette paper for the purpose, which would reduce the amount of toxic chemicals that are used and therefore also the amount of toxic chemicals in our environment—given that, inevitably, once they finish being used, they get wasted.

The point stands that the papers themselves contain toxins that would not be required for any other uses, whether that be for models, art or music. Therefore, since such products are available on the market to buy separately from cigarette papers, though they may currently be slightly more expensive, the Minister may want to consider removing that exemption, because it inevitably creates a loophole for these products to be used for the smoking of illegal tobacco or a joint.

[Gregory Stafford]

It is interesting—now that we have moved on to the alternative uses—to note that anyone who has ever had children knows that pipe cleaners are an essential part of any craft kit. Obviously, they can be used for cleaning a pipe, as well as making a spider or whatever else. The Minister has not sought to ban pipe cleaners in the same way. I wonder why he has picked out cigarette papers, which have alternative uses, but not pipe cleaners, which clearly have alternative uses as well.

[Dr Johnson]

The hon. Gentleman is bringing back painful memories of trying to create things with pipe cleaners for my children, and trying to make them stand up straight when they simply are not quite that stiff—but some fun memories, too. Yes, I do see that they are used in art. That suggests another question. The Minister can correct me if I am wrong, but I presume that the Government have chosen to ban cigarette papers because they want to reduce the amount of people smoking illegal tobacco; it is also an opportunity to reduce the amount of availability of papers for smoking cannabis and other illegal products, but why have they not included filters?

For many years, the tobacco industry has implied that smoking through a filter is safer and many in the population believe that smoking through a filter is safer, but it is a single-use plastic—and I am sure the Minister is very worried about the environment and the use of single-use plastics. The previous Government banned quite a lot of single-use plastic items to reduce waste. The cigarette filter is the most littered item globally every year and it is a single-use plastic. It contains a cellulose acetate filter, which I am told is a plastic pollution. It also increases the risk of a particular form of lung cancer, because the tiny little itty bits of plastic are inhaled into the individual who is smoking. They also increase the way that people draw on a cigarette, which means they could take in more of the toxins when there is a filter than when there is not. Will the Minister discuss whether he plans to include filters on Report?

Let us look at international examples. In 2011, the United States said that all cigarette papers should have Food and Drug Administration approval for their ingredients. Is the Minister considering publishing the ingredients on the packet here in the UK, so that if they are to continue to be sold, people are aware of the toxins they contain? Further, where these products are being used for modelling or art purposes, perhaps such steps will start to reduce the number of toxins contained in them.

As part of clause 2 we are also going to discuss clause 69 stand part. Clause 69 substitutes for article 4A of the Health and Personal Social Services (Northern Ireland) Order 1978. That is, essentially, identical to clause 2, except for the fact that subsection (4) states someone guilty of an offence under the article is liable to a fine “not exceeding level 5”, whereas clause 2 says “not exceedingly level 4.” As the Minister is looking for consistency across the four countries of the United Kingdom, could he explain why he has chosen to have a lower level of fine for the proxy sales offence here than he has in Northern Ireland?

It should be noted that, although we have already discussed clause 50, that part of the Bill provides for legislation for proxy sales in Scotland, where the fine threshold is also set at level 5. I understand that the Minister is a fan of devolution, and wants devolved nations to be able to have different fines, so why has he chosen the fine level for this particular part of the country to be at level 4, which is lower than in Scotland and Northern Ireland? Additionally, section 5 of the Tobacco and Primary Medical Services (Scotland) Act 2010 says that it is illegal to buy, or attempt to buy, for oneself if under 18. Is it the Minister’s intention to amend that? That is my final question on clause 2.

[Jack Rankin]

I do not intend to go over the scope of the clause in great detail, because I think the principles largely flow form the principles of clause 1, but I will pick up on the cigarette paper point that my hon. Friend, the shadow Minister made, and talk about clause 2(3):

“It is a defence for a person charged with an offence under this section in respect of cigarette papers to prove that they had no reason to suspect that the other person intended to use the papers for smoking.”

I commend the shadow Minister’s researchers, because I can feel her thoroughness—I know a lot more about cigarette papers than I did an hour ago, and much more about cigarette papers than I thought there could possibly be to know, so she has answered some of my question.

[Dr Johnson]

I am pleased that my hon. Friend has found today interesting. Does he also find it interesting that some of these papers that can currently be bought legally from major retailers in the United Kingdom are not just coloured and have designs on, but flavoured? That is clearly not necessary for someone using them for a model or artwork. They may make people smoke more, because they disguise the taste of the tobacco and make smoking more pleasant.

[Jack Rankin]

I believe that is the case, and it is something I did not know before today. My questions were along the lines of: is this not just paper, and, if so, why is it excluded in some sense? I was racking my brain for legitimate reasons, and, in her speech, the shadow Minister gave some legitimate reasons, whether that is the woodwind instruments, or the model making mentioned by the Member for Chatham and Aylesford. It seems to me that—even though I disagree with the principle of the Bill—those extra properties would not be necessary for those legitimate uses in this instance.

As my hon. Friend the shadow Minister said, the market should be able to make a difference. Clause 2(3) should be struck from the Bill, because it does not seem that there is a legitimate use for cigarette papers that would not be picked up in another way, shape or form if that subsection were removed. I understand from the guidance I received as a new Member on my first day here that I have to three days to table an amendment before discussion, but I would suggest the removal of subsection (3). Perhaps the Government will consider whether the provision should remain fully in the next iteration of the clause later in this process.

I also want to speak to the term “no reason to suspect”, because I am not clear where the burden of proof sits. If someone goes into a newsagent to order cigarette papers, the overwhelming likelihood is that they will use them to smoke cigarettes. I accept that other reasons exist, but is the shopkeeper supposed to ask? The Bill says “no reason to suspect”; I would expect shopkeepers to have every reason to suspect that people who buy cigarette papers smoke cigarettes. It seems a little woolly. What would the Minister expect the shopkeeper to do in those instances? Is he supposed to ask? If the person says, “I am using this for a woodwind instrument,” is that sufficient? If I were a person who wished to get around the law, I could pretty easily work out that that would get me around the clause.

--- Later in debate ---

[Andrew Gwynne]

That is a good question. Of course, if it was to be used for the consumption of tobacco, it would come within the scope of the Bill. We have to be clear that many of these products have dual uses, as we have heard. I am as guilty as anybody of making pipe-cleaner characters for my children and grandchildren—grandchild, rather, because I have only one so far.

We want to make sure that those who want to continue smoking are able to do so, but that obvious restrictions and boundaries are put in place regarding the accessibility of these products, so that no child born after 1 January 2009 will ever legally be sold them.

[Dr Caroline Johnson]

I thank the Minister for engaging in this discussion, because although it is somewhat technical to discuss cigarette papers, it is important. The hon. Member for Worthing West made the key distinction, which is that it is about the ingredients that are in a product. It would be possible for the Minister to devise legislation that sought to ban cigarette papers, without preventing a market in a similar product that would be ineffective as a cigarette paper but useful for the average modeller.

[Andrew Gwynne]

Perhaps we will return to that on Report. I have every sympathy with what the shadow Minister says. We do not want to prevent the legitimate use—indeed, a whole variety of uses—of these products, which is why we have the exemption in the Bill. If we are able to do what she suggests under the powers in the Bill, that would be great; if we can do only some of what she asks for in respect of flavours, that would go part of the way, and we will need to look at how we can strengthen that. If the shadow Minister can be a little patient, I think we can come back to this on Report.

--- Later in debate ---

[Dr Johnson]

rose—

[The Chair]

Order. I do not mind Members seeking clarification, but when the Minister has sat down we need to leave it at that.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Tobacco vending machines

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

[Andrew Gwynne]

The clauses restate the ban on tobacco vending machines in England, Wales and Northern Ireland and extend it to include vending machines that sell cigarette papers. The prohibition came into force in 2011 in England and in 2012 in Wales and Northern Ireland. Under the amendments made by the Bill it will be an offence for a person with management or control of a premises to have a vending machine available for use from which tobacco products, herbal smoking products or cigarettes may be bought.

The prohibition was originally introduced because tobacco vending machines were largely unsupervised and allowed under-age access to tobacco. In 2010, 8% of 11 to 15-year-olds who regularly smoked said that vending machines were a usual source of cigarettes. The policy has successfully contributed to reducing smoking rates in young people and has been effective at enabling the age-of-sale restrictions to be implemented and enforced properly.

The existing legislation is consolidated in the Bill to replace the regulations that cover an automatic machine from which tobacco products, herbal smoking products or cigarette papers may be bought. With all the restrictions that apply to such products covered in one Act, those who are affected by and who apply the legislation will find it easier to access them. I commend the clauses to the Committee.

[Dr Johnson]

As the Minister says, clause 3 outlaws the use of vending machines that sell tobacco or tobacco products, as well as herbal smoking products and cigarette papers. I note that there are no amendments to clause 3, presumably because it is somewhat settled and established law.

In the same way as vapes and other nicotine products, which we will come to later, vending machines make it much easier for people under the age of 18—or, under clause 1, those born after 1 January 2009—to buy age-restricted products that they are not legally allowed to purchase. They are self-service machines, so it is difficult to prove age and easy to get around if it is machine led. Historically, such machines have often been unsupervised by staff in a shop, thereby providing easy opportunities for younger people to buy from them.

It was coalition Government legislation—the Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010—that banned the sale of tobacco products from vending machines from 1 October 2011. That statutory instrument was made under section 3A of the Children and Young Persons (Protection from Tobacco) Act 1991, which was inserted by section 22 of the Health Act 2009. That is a complex chain to follow, so having this clause where everything is in one place is much simpler. The clause also adds herbal smoking and cigarette paper vending machines to the legislation—on a personal level, I welcome that, for the reasons I have given already—and clarifies the penalty, which was more difficult to establish when looking at the previous trail of legislation.

However, the clause does change the terminology. Previously, it was illegal on the basis of sale “from an automatic machine”; the Bill talks about an “automatic machine from which” products “may be bought”. It seems that they are the same thing, but of course we heard repeatedly in evidence how the tobacco industry tries to get round these things.

I found a trail of people discussing online how to get round the vending machine legislation, which raised various questions. If I buy a product from a major retailer online, I can choose to get that delivered to my home, I can collect it from one of its stores, and I can also pick it up from our local Co-op, the local post office, or from a box with a keypad door, at the garage and in other locations. If one were to buy tobacco products, herbal smoking products, or cigarette papers using an online app, and collect them from a dispensing machine—an automatic machine that dispenses cigarettes—in a pub, would that be covered by this legislation, or is that a loophole that could be exploited? I would be interested in the Minister’s comments on that, because we have heard how inventive the industry is. Would it be possible for people to circumnavigate the Bill’s intent by creating a machine that does not sell the product but simply gives to a person the product they have already bought?

Clause 70 applies to Northern Ireland. It will insert into the Health and Personal Social Services (Northern Ireland) Order 1978 the new article 4B, which is essentially the same as clause 3, so the same questions and comments apply. The only difference between the two clauses that I can see is that in Northern Ireland we have a level 5 offence, and in England and Wales we have a level 4 offence.

I wondered briefly why there was no clause for Scotland, but section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 makes it illegal to have an automatic machine for the sale of tobacco products, regardless of whether the machine also sells other products, with a level 4 fine, so Members can be reassured that that is covered. I do not think the Minister answered this point in relation to the previous clause: clearly he chooses the fine levels for England and Wales in the Bill; why has he chosen to have the same penalty as Scotland but a lower penalty than that in Northern Ireland?

[Sarah Bool]

Clause 3(1) says:

“A person commits an offence if the person has the management or control of premises on which a tobacco vending machine is available for use.”

My first point goes to the point my hon. Friend the Member for Sleaford and North Hykeham made about the concept of that person, because that leads to some questions and confusion about where the liability sits. When it comes to the person who has management or control of the premises, we might expect there to be a landlord and a tenant, in which case perhaps the tenant has control legally under the terms of their lease. But if the landlord has a managing agent—the hint is in the name—could they be caught within the scope of the Bill if they have not done enough to prevent the machine from being on the property?

What about cases in which a landlord who is a licensor has a licensee? The concept is slightly different: it is not as official as a lease, but someone has the right to use the premises but not exclusive use or possession of the premises. We could potentially argue about who actually has the management and control of the property in that instance. It would be interesting to know whether in future landlords could be in trouble if they do not include in the lease a provision that bans the location and siting of a vending machine in the property. I do not think that would be where landlords currently stand, but that is perhaps worth considering. It seems pedantic but, knowing the way the legal system can go when people want to find defences, we do have to stress test the wording we use, so we need to examine the concept of a person having management and control.

[Dr Johnson]

My hon. Friend is making a very important point that I had not fully considered: who is responsible where you have a larger corporation with a group of shops beneath? You have the board level, the regional managers, the local shop manager, the shift supervisor and then the shop worker, so who has the control? Is that something the Government have a fixed position on, or would each company individually need to prove who that was? If trading standards was prosecuting such an offence and chose the wrong individual, would the Government allow the corporation to get off scot-free?

[Sarah Bool]

My hon. Friend makes an incredibly valid point. It is something we are duty-bound to explore and test, to make sure we can avoid any problems with the roll-out and implementation of this.

--- Later in debate ---

[Dr Johnson]

As the Minister says, clause 4 makes it against the law to sell cigarettes that are not in their original packaging, so that individual or small amounts of cigarettes cannot be sold separately. That is in part because cigarette packets now have standardised formats, warnings and information designed to alert the smoker to the health problems caused by the smoking habit, and selling cigarettes outside the packets means the smoker avoids that information.

I asked the Minister earlier about proposals for warning notices about smoking on the cigarette paper itself, but I did not hear his thoughts. The notices might ensure that, were individual sales to happen despite the law, the warning would still be received by the child or smoker, but there is also the risk of adding additional chemicals to the paper. Where does he think the benefit or balance of risk lies in that respect?

Everywhere else the Bill makes it an offence for a “person” to do something, so why does the clause mention a “tobacco retailer” rather than a “person”? If the Minister does not wish cigarettes to be sold individually, why would it be more of an offence for a proper tobacco retailer to sell them individually than it would be for an individual who is not a tobacco retailer? Why the change in wording? I do not understand. If someone is not a tobacco retailer, it would clearly be illegal, because they would have no licence. Why not have this additional offence for the most reckless people, so that they can be dealt with more severely?

As the Minister says, the minimum pack size of 20 was brought forward in 2017, because it was felt that packs of 10 were closer to the level of pocket money and were encouraging the uptake of cigarettes by children. When we come to vaping, we will discuss the pocket money nature of some of these products.

[Jack Rankin]

Certainly in my experience, the only reason people sell unpackaged cigarettes is to make them cheaper for schoolchildren, so I find it strange that subsection (2) states that the fine is level 3 on the standard scale. If I understand what my hon. Friend said in the last sitting about the standard scale, level 3 is lower than the level 4 fine for sale. A sale could have been in error, but unpackaging cigarettes to sell to schoolchildren seems deliberately malicious, so I am surprised that it is not treated more severely. Perhaps my hon. Friend can comment on that.

[Dr Johnson]

My hon. Friend is right that the offence of selling a product to a person born on or after 1 January 2009 is something someone could do unintentionally. They could genuinely believe the ID in front of them, or that the person looked so significantly older that it was not even necessary to ask them for ID, whereas selling cigarettes outside the packaging requires the deliberate act of removing them from the packet and selling them individually, in a way that is not normally done. I think my hon. Friend is right, and it is perhaps surprising to have a deliberate act at a lower fine level than a potentially unintentional one.

[Sarah Bool]

Why are we limiting this to cigarettes? Forgive me, I am not an expert—I have never bought herbal smoking products—but if we are applying the same rules and we just want an outright ban, perhaps we should apply it generally, in case there are rule changes, to the sale of not only unpackaged cigarettes but unpackaged herbal smoking products. That would add further to the emphasis on changing the term from “a tobacco retailer” to “a person”, as my hon. Friend suggested.

[Dr Johnson]

I thank my hon. Friend for her contribution, and she is right to talk about the quantity. If the principle behind this clause is to ensure that the quantity of sale is such that it restricts younger people from purchasing these products with their pocket money, what consideration has the Minister given to the quantities of herbal cigarettes, or herbal smoking products, and cigarette papers, so that they would be purchased in quantities not easily accessible to young people?

On the comments made by my hon. Friend the Member for Windsor about the fine levels, the fines are level 3, which in this case is consistent across the four nations of the United Kingdom. Clause 51 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to add proposed new section 4E, which essentially has the same effect—it is different wording, but it has the same essential effect of banning the sale of loose cigarettes. Clause 71 adds proposed new section 4C, which is essentially the same as clause 4, to the Health and Personal Social Services (Northern Ireland) Order 1978 to have the same effect. Again, it has the same fine, so there is some consistency across the four nations of the country, but I would be grateful for the Minister’s comments on the points I have raised.

[Andrew Gwynne]

I thank the hon. Lady for raising these matters. Again, it is a case of perhaps overcomplicating what the clause does. As with clause 3, clause 4 merely restates that it is an offence for tobacco retailers to sell cigarettes that are not in the original packaging they were supplied in. We are not talking about proxy purchasing, or somebody breaking up a packet of cigarettes and selling them as an individual; we are talking here about retailers. This practice used to be quite common, but thankfully, because of the measures that are already in place, it is already an offence and we are reaffirming that offence in the Bill.

[Dr Johnson]

The Minister says that it has been illegal for some time and that is an offence to sell loose cigarettes, and of course it has been. However, we heard in evidence from the Royal College of Physicians last week that the sale of loose cigarettes to youngsters was still a problem—it is an entry way into cigarettes. Does the Minister have any comment on whether reaffirming the offence with this legislation will actually help to enforce it to any greater degree?

[Andrew Gwynne]

Yes, I believe it will. Of course, this measure is not being taken in isolation, and it is not just a stand-alone measure. This is part of a whole package of tobacco control measures that form this part of the Bill. Taken together, these things will ensure that we drive down even further smoking prevalence in young people. However, we do not want to undo the legislation as it stands; we need it to be part and parcel of the whole raft of measures we are bringing forward.

--- Later in debate ---

[Andrew Gwynne]

Clauses 5, 6 and 72 replace the requirement for age of sale notices in England, Wales and Northern Ireland to reflect the new age of sale for tobacco products. Clause 55 provides Scottish Ministers with the power to set requirements about warning statements, which are notices that reflect the new age of sale requirements there. Age of sale notices are required under current legislation and must state in a prominent position:

“It is illegal to sell tobacco products to anyone under the age of 18.”

The Bill will replace that requirement with a requirement for notices to reflect the new age of sale, stating:

“It is illegal to sell tobacco products to anyone born on or after 1 January 2009.”

The notices must comply with any requirements set out in regulations on the size or appearance of those notices. This updated wording on age of sale notices will support tobacco retailers in implementing the new age of sale restrictions by helping to clarify and underline them for customers and staff. I therefore commend these clauses to the Committee.

[Dr Johnson]

Clauses 5, 6, 55 and 72 make provision for age of sale notices. Clause 5(1) makes it clear on which premises the notices must be displayed. In some respects, that is obvious, but the fact that the Bill makes clear that the notices must be on the same premises where the tobacco is being sold is perhaps a sign that the Minister has the measure of the tobacco industry: if that was not clearly stipulated, there would be temptation to display the notices in head office or somewhere else where no one could see them. The fact that it is thought necessary to state what is blindingly obvious—that the notice must be displayed in the right place—is somewhat sad.

Subsection (3) deals with positioning. The statement that the notice must be prominent and readily visible at each point of sale is relevant to shops that have more than one till at the counter. One sometimes goes to the counter of a large supermarket, or similar, and sees a whole row of tills. It is therefore important that the signs are visible from all the tills, not just the one closest to the tobacco.

What the notice must say is provided for in subsection (2):

“It is illegal to sell tobacco products to anyone born on or after 1 January 2009”.

That is clear, simple and informative, which is good. However, it does not mention cigarette papers or herbal smoking products. Why has the Minister chosen not to include the other items included in the rolling age of sale and the Government’s smoke-free generation on the notice for clarity? That is important because we heard in evidence, and have all read in the news, of examples where people who work in our retail sector have been treated in an abusive—sometimes violent—fashion or people have been very rude to them.

If the purpose of the notice is to be clear on what the law is, providing clarity that it also includes herbal smoking products and cigarette papers would enable the public to be aware of the law and the retailer to point to the sign and say, “I can’t do this—look.” The message as currently drafted does not do that, and that could cause shopkeepers or shop assistants more difficulty. I notice that under subsection (4), any aspect of the notices, including the appearance and wording, can be amended, so that could be done at a later date if the Minister feels that the shopkeepers’ evidence is that herbal smoking products and cigarette papers are proving a challenge. Why has he chosen not to do that at the outset?

Subsection (7) talks about a defence of having taken reasonable steps. I have two questions on that. First, is “It fell down and I hadn’t noticed, your honour” an adequate defence? How does the Minister envisage the reasonable steps defence? What are the reasonable steps? If the Government choose under subsection (4) to change the appearance or wording—perhaps if they discover it is inadequate in some way—what steps will need to be taken to ensure that all retailers are aware of those changes, and within what timeframe will retailers be expected to react to those changes?

The impact assessment says that the cost of putting up a new sign is not prohibitively expensive for an individual business—it is about £4 per retailer—but it means that there is an overall cost to small and micro-retailers of around £124,000 in England, and £143,000 in the UK. That is a cost to business overall, even if a small one to individual businesses. The impact assessment also notes the cost of staff training and awareness. There are an estimated 42,582 convenience stores in England, each with a store manager who would have to disseminate that information to the estimated 299,957 members of staff. Of those stores, 71% would be considered small or microbusinesses.

The cost of amending those things means that the Opposition invite the Minister to get the notice right the first time so costs are not incurred twice. There is an estimated cost of around £2 million in total on training. Although the cost to any one small or microbusiness is likely to be small—around £70 on average—that cost combined with £4 for a sign, at a time when small businesses are being squeezed by other budgetary measures the Government have brought in, is another potential straw to break the camel’s back.

The fine is at a level 3, and the person who carries on a business involving the sale of tobacco products by retail is the person who is liable. But what does it mean to be

“a person who carries on a business involving the sale of tobacco products by retail”.

Is it the director of the business? Is it the store manager who is on duty that day? Is it the overall store manager, or is it the licence holder?

[Jack Rankin]

My hon. Friend has previously sought to amend the Bill in various places to add the qualifier “save for the first offence”. It seems to me that, particularly in the first instance, this could be a genuine oversight and that it would be appropriate for a council officer or someone from trading standards to simply bring it to the attention of store management and ask them to rectify it over a period of time. Does she think this clause should be tweaked in such a way, on the same principle on which that she has sought to amend other clauses?

[Dr Johnson]

I am going to disagree with my hon. Friend on that point. There will be licensing for tobacco products, and part of the due diligence of setting up to sell such products includes familiarising oneself with the legislation as it stands and thus with the regulations around signage, buying and putting up the appropriate signs, and providing the appropriate training. The challenge occurs if the Government seek to amend the notice, at which point they would need to ensure that they had given adequate notice and information to the company to ensure that it had the time, resources and information to put up the correct signs.

[Tristan Osborne]

On signs, if we accept the premise that the law is changed—as we have done in clause 1—to include a rolling scale with the date being 1 January 2009, signs will have to be updated in any event to reflect that. The current signs about being 18 would have to be removed. On the definition on the signs—tobacco products versus relevant products—is it not clearer to the public, who are going to be the purchasers of the products, if it is tobacco products? It does not preclude extra signage, which exists in many stores, of what can and cannot be purchased. While I accept the premise of the idea of relevant products versus tobacco products, for the public it would be clearer if it were tobacco products.

[Dr Johnson]

The hon. Gentleman is right, of course, that those selling tobacco products legally now will need to change their signs to have the date of 1 January 2009 on them, as opposed to the age of 18, because that will be the law: that clause has now passed, and I expect that it will continue its passage through the House and the other place, because it has broad support among the public and within Parliament.

--- Later in debate ---

[Dr Beccy Cooper]

I just wanted to clarify something with the hon. Lady, because she is talking about the size of the signs in Wales, under clause 6, I think. Clause 6(4) says:

“The notice must comply with any requirements set out in regulations made by the Welsh Ministers”.

I presume that that is the response that she is looking for: the Welsh Ministers will absolutely be able to decide on the size of the signs.

[Dr Johnson]

I thank the hon. Lady for that.

[Gregory Stafford]

My hon. Friend is making, I think, an important point about whether Ministers, either in England or in the devolved Administrations, can put signs together in order to reduce the burden on a business of having multiple, potentially confusing signs. I understand the point about devolution, but most ordinary people will look for a single regulated sign for this. I wonder whether there is any discussion—even if the Minister cannot legally enforce it within the Bill—about working in tandem with the relevant Ministers in Scotland, Wales and Northern Ireland, so that there can be a standardised sign, so that it is abundantly clear, whether someone is in England, Wales, Scotland or Northern Ireland, that that is the sign, and that it is both clear to consumers and it is clear to businesses what they are supposed to be displaying.

[Dr Johnson]

I thank my hon. Friend for his intervention. It is of course correct that we have devolution, and the hon. Member for Worthing West is of course right that Welsh Ministers—in the same way as Scottish Ministers, and, as I will come to, Northern Irish Ministers—have the capacity to deal with changes to the signs, but it will be easier to have clarity. I am merely suggesting that the Minister could discuss these details with his devolved counterparts and put such measures on the face of the Bill now, rather than not do so and then require, for example, as I said before, the Scottish Ministers to then introduce an SI for something that could be changed much more cheaply with drafting now. It would require much less time and energy from the civil service in Scotland—and spend less taxpayers’ money—to achieve that.

I am interested by the comment from my hon. Friend the Member for Farnham and Bordon about joint signs. The point I was making was about the display space: if someone has to put a lot of different signs up—particularly given that the Minister has shown reluctance on the principle of a nicotine-free generation, which I suspect is where we will end up—and we need to do that at a later date, we will end up with yet another sign with yet another date on it. There comes a point at which the amount of display space available to retailers starts to become smaller, given the required font size.

Before I finish, I have one more quick point, which is just to note that clause 72 is the Northern Irish equivalent added to the Health and Personal Social Services (Northern Ireland) Order 1978, so it is the same as clause 5, with the same effect.

Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)

Tobacco and Vapes Bill (Sixth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[Jack Rankin (Windsor) (Con)]

At first sight, the clause can appear to follow on naturally from the rest of the Bill, and in some sense it does, but I think it is important. We heard from shopkeepers in the evidence session last week, from the British Retail Consortium, and in the representations to us made in writing that it can be difficult for younger shopkeepers to hold the line on this, and they might be at the wrong end of unacceptable verbal abuse. In my view, the Bill will increase that risk.

With younger people often manning retail stands, in the future we might have 18 or 19-year-olds having to refuse to sell tobacco products to people a decade or so older than them. That will be increasingly challenging, even compared with the existing situation. I have spoken about being opposed to the principle of the Bill and finding it somewhat unworkable, but putting that to one side, I think that if we are to proceed with it, we have a particular obligation to make things as easy as possible for shopkeepers. I am sure that everyone agrees.

The language used, or proposed to be used, in the age of sale notice in subsection (2) is quite legalistic, being presented as:

“It is illegal to sell tobacco products to anyone born on or after 1 January 2009”.

That is a statement of fact. It mirrors what we see today, but it is very legal. I think it would benefit from being a bit more practical. For example—I think my hon. Friend the Member for Sleaford and North Hykeham made this point—it is illegal to sell herbal smoking products, cigarette papers and not just cigarettes, but cigars. We might help our shopkeepers if we made the list a bit more practical, so that the shopkeeper could turn around to say, “Sorry, guvnor, but this is the law,” whereas with the Bill saying “tobacco products”, the verbal altercation might include, “These are not cigarettes, though.” Perhaps we should move away from legalistic language to help staff, especially younger members of staff. That is particularly necessary, given what seems to be a general coarsening in our society, I am afraid to say.

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

The regulations will need to be enforced not just in a large supermarket, where the shop assistant has the benefit of a security guard and other—

[The Chair]

Order. Will the hon. Lady speak through the Chair, please?

[Dr Johnson]

I am sorry, Sir Mark. The regulations will need to be enforced whether one is a shop assistant in a small shop or in a large shop. In a large shop that sells tobacco, such as a large supermarket, one might have the benefit of a security guard, additional staff and many more people around. Alternatively, a 19-year-old might be trying to enforce the regulations on a Saturday evening in a rural shop many miles from the local police station, with no security guard or anyone else around.

[Jack Rankin]

That is exactly the kind of situation I am thinking of. The language could be a bit more practical, less legal and it might aid that shopkeeper to point to an external source for validation.

I have two further points. One is a point of ignorance for me as a new Member, for which I apologise. I do not know what subsection (5) means when it says that

“Regulations under subsection (4) are subject to the negative resolution procedure.”

I hope someone can help me with that. Clause 6 is being taken together with clause 5, because clause 5 applies to England and clause 6 applies to Wales. To me, they appear to be exactly the same, apart from the age of sale notice described in clause 6(2) and the fact that clause 6 obviously also includes the Welsh version. I am going to take at face value that it says the same thing in Welsh, although I do not speak Welsh. It would be nice to clarify whether it is either/or whether it is both together. That is of interest.

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

It is a pleasure to serve under your chairmanship, Sir Mark. In responding to points that have been made, I want first to reiterate that these two clauses do not relate to enforcement; they concern the nature of the signage that will be required to be displayed. We can come to those other matters later in the Bill’s proceedings. I remind Opposition Members of what has been said in previous debates: we will use the very long lead-in time to engage fully with the retail sector to ensure that we get the delivery in shops right and to ensure that the Bill’s provisions can be implemented without any hiccups.

I also reiterate that we abhor any violence and abuse towards retail staff—or anybody else—and it is the intention of this Labour Government to introduce a new offence in this respect. Given the comments that have rightly been made in the course of this and earlier debates, I hope that it will command full support from all parts of the House.

The hon. Member for Windsor asked what is meant by “negative resolution procedure”. It is the procedure for the statutory instrument that will be have to be made to introduce these regulations. The fact that it is “negative” means purely that it will not require a parliamentary debate. It will be done through the usual secondary legislation processes.

There were questions about the nature of the clauses relating to different parts of the United Kingdom, and why we are approaching this with slightly different methods. I must say politely—particularly to the shadow Minister—that we have to respect the devolution settlement. These matters are entirely within the legislative competence of the devolved Administrations. Some things remain reserved for the UK Government, but for a lot of the measures in the Bill, the legislative competence rests with the devolved Administrations and their Parliaments.

[Dr Johnson]

I have at no point suggested that I do not respect the devolution that is in place. I made two remarks that reference devolution. One was about the different penalties that apply for the same offence in different parts of the United Kingdom. While I recognise that Ministers in other parts of the country have the competence to change the penalties to make them different from those that apply in England, it is clearly the Minister here who decides what the draft legislation should say with regards to the penalty in England. My questions focused on why he has chosen to make it different in England from other parts of the United Kingdom. Clearly, if the Northern Irish had chosen a higher penalty, it is up to him if he wishes to join them, or to have a lower penalty.

The other issue I have raised regarding devolution was in relation to clause 5. The Bill as drafted says that tobacco cannot be sold to people born on or after 1 January 2009, and much effort has gone into ensuring that that is replicated in Scottish legislation all the way through, even though the Scottish Parliament could do that itself if it wanted to. It makes sense to do it in one go here because that is more efficient in terms of both time and financial expenditure for civil servants across the country. So my question was why the Minister has chosen not to include in the Bill the change to the notice in clause 5, saying that tobacco cannot be sold to people under 18. Why not change that now?

[The Chair]

This is a very long intervention.

[Dr Johnson]

I am defending myself, as the Minister has accused me of something, Sir Mark.

[The Chair]

I know, but please wind up.

--- Later in debate ---

[Dr Johnson]

I am merely suggesting that changing the notice in clause 5 to

“born on or after 1 January 2009”

instead of “under 18” now would be more efficient, and help our Scottish colleagues, rather than implying they are not capable of doing so.

[Andrew Gwynne]

Sir Mark, the hon. Lady protests too much here, because while it is true that she was questioning why, for example, the English fines could not be the rate of the Northern Irish fines, she was also pretty much calling for us to legislate for Scotland and Wales to bring consistency across the whole United Kingdom. Likewise with clause 5, she asks why we in this place are not legislating for Scotland in respect of the notices that will be displayed in Scotland. It is not our job to legislate where the Scottish Government do not want us to do so.

[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

No, I will answer the hon. Lady. My officials and I have been in contact throughout the production of this Bill with officials and Ministers in the devolved Administrations. I have had umpteen meetings personally with my counterparts in Scotland, Wales, and Northern Ireland, and there is an open offer. They are genuinely excited, Sir Mark, that we are able—as far as possible—to legislate with their consent to make smoke-free UK a reality, and we have sought to design this Bill in co-production with the devolved Administrations. None the less, there are some things that the devolved Administrations do not wish this Parliament to legislate on. For example, in respect of clause 5, on the notices, the Scottish Government have made it very clear that this is something they wish to do in their own way, in their own time, notwithstanding the fact that they have given us assurances that the measures will be in place to give enough time for retailers north of the border in Scotland to implement them. It is not for me to overrule the will of Scottish Ministers, who have the legislative competence to do this, if they do not wish this Parliament to do it on their behalf.

I hope that that answers future similar questions about the differences in different parts of the United Kingdom. We are legislating with the permission and consent of the three devolved Administration Governments, and we are not going to overstep. I have already said to my ministerial colleagues in other parts of the United Kingdom that if, during the course of the Bill through this House and the other place, they think, “That is not quite right and we need it to be amended,” or, “You know, it does make sense for Westminster to do it all in one go and do it for us,” we will respect that.

I have given Ministers my promise that if, as an afterthought, they want us to do some of this for them on their behalf during the Bill’s progress through its stages in both Houses, we will facilitate that. However, I am not going to overstep the powers given to me by the Scottish, Welsh and Northern Irish Ministers to legislate on their behalf and to ensure that we have a United Kingdom-wide Bill that meets the separate and different needs, ambitions and expectations of our devolved settlement.

--- Later in debate ---

[Dr Johnson]

I am grateful to the Minister for making clear that the reason that the text contained within the age of sale notice is not being amended at this stage is because Scottish Ministers have told him they would prefer to amend it themselves at a later date.

[Andrew Gwynne]

I am grateful for that, and if any offence was caused by my earlier comments, I apologise to the hon. Lady. We need to set out clearly that we are doing something quite ingenious, and that is only because of the goodwill and the desire of Ministers from different political backgrounds in Scotland, Wales and Northern Ireland to get this legislation through the United Kingdom Parliament with the ability for them to then differ on consultations and other matters once the legislation is on the statute book. That would have been unheard of in years gone by, when relationships were not necessarily as good as they currently are between the devolved Administrations and the Westminster Government.

The same argument applies to clause 6. The sign will be a matter for Welsh Ministers. Although the framework of the sign is set down in the Bill for Wales, because that was how they wished us to approach it, any changes would be a matter for Welsh Ministers. The hon. Lady asked the hypothetical question whether, if we changed the notices again, there would be adequate consultation or time for retailers. We are not planning on making life difficult for retailers. We think that the wording here is the right wording. I do not take it to be legalistic and technical in the way that the hon. Member for Windsor seems to think it is. It is the same wording that applies now, with the exception that rather than talking about people “under the age of 18”, it will say

“anyone born on or before 1 January 2009”.

I think that is pretty clear.

The wording on the signage was tested during the public consultation in January, and more than 70% of respondents supported it. Many respondents noted that we need to mirror the existing wording to ensure accessibility. Other products are more niche and were not deemed to be necessary on the sign, but I think most people understand what a tobacco product is, and a cigar is certainly a tobacco product. I commend the clauses to the Committee.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7

Ban on manufacture of snus etc

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

[Andrew Gwynne]

I am grateful for the opportunity to open this debate. Amendments 60 to 62, 70 to 72 and 77 to 79 would create a more lenient penalty regime for the offence of possessing the relevant oral tobacco product, for example snus, with intent to supply it to another person in the course of business in England, Wales, Scotland and Northern Ireland, by creating an exception to the maximum penalty that a person can face for committing that offence if it is their first offence.

The amendments would establish that someone who admits to committing an offence for the first time would be liable on summary conviction or indictment to a fine not exceeding level 3 on the standard scale, which is £1,000, or provide instead for a discretionary caution in England and Wales, a recorded police warning in Scotland or a conditional caution in Northern Ireland. That is lower than the current maximum penalties, which are, on summary conviction, imprisonment for up to six months in England, Wales and Northern Ireland and 12 months in Scotland, a fine, or both; or, on conviction on indictment, imprisonment for up to two years, a fine, or both.

The amendments would remove the distinction between summary conviction and conviction on indictment for first-time offenders, meaning that the severity of the offence committed would not be taken into account in those cases as it would under current provisions. In creating a first-time offence, the amendments would have a similar effect to amendments that we have already discussed, so, if the Committee is content, I will not repeat myself, as my rationale for asking the shadow Minister to withdraw her amendment remains the same.

[Dr Johnson]

This group of clauses and amendments all apply to snus, which we are trying to ban, so the first question is: what is snus? Snus is a tobacco product predominantly used in Sweden and, to an extent, in the USA. When the Health and Social Care Committee, which I was a member of in the last Parliament, visited Sweden at around the time the previous Tobacco and Vapes Bill was introduced, we saw shops with massive displays of different types, brands and flavours of snus, which came in small round pots similar to those that we see nicotine pouches in; they were mostly kept in the refrigerator.

Snus is produced using tobacco leaves, salt and alkalis such as sodium bicarbonate or sodium carbonate. The alkali is there to help the nicotine to be absorbed more easily into the mouth and therefore into the bloodstream of the person using the product. Producers also potentially add a flavouring. As we have seen in cigarette papers, flavourings are used to improve the palatability of tobacco products. The mixture of tobacco leaf, salt, alkalis and flavouring is ground up, steam-pasteurised to inhibit the growth of bacteria, and then supplied loose or in small pouches.

The loose form is a moist, powdery product, which I understand is rolled between one’s fingers to create a sort of cylinder shape known as a pinch. It is placed under the upper lip, where it is held for about 30 minutes while the nicotine is absorbed into the bloodstream. Its moist nature helps to facilitate the absorption of nicotine and makes the nicotine hit faster; it is absorbed more quickly than it would otherwise be.

The second way that snus can be supplied is in a small pouch resembling a very little teabag, which comes in two formats: original and white. The original version is a sachet of material that is kept moist and is brown in colour. Again, the moistness allows a quick release, but the tobacco product does not need rolling and pinching; it just needs putting into one’s mouth, and it stays in its little pouch. The white version is not in all cases white, but the genre is known as white snus. It has a milder taste and a slower release because the powder in the pouch is dry. The dryness means that one needs to get it moist in the mouth before it will dissolve across the membrane and give the nicotine hit, which means that the dry snus is a slower-release product than the original. The American snus is a lower moisture product, again provided in a variety of flavours to suit the customer.

Why did I and others not know what snus was? I am sure you are familiar with it, Sir Mark. This specific form of tobacco product has been banned in the UK for some time. It was banned by the Tobacco for Oral Use (Safety) Regulations 1992—I was still at school—and then EU tobacco products directive 2014/40 created a European-wide ban, which was incorporated into UK law by the Tobacco and Related Products Regulations 2016. The Committee might be interested to know that Sweden has a derogation specifically for snus under that EU regulation, so snus is still sold there, as I described.

Advocates of snus believe it is less harmful and causes less respiratory disease and less cancer than does an inhaled form of tobacco. They try to market it as an alternative to smoking that is less harmful. However, the evidence shows a risk of cancer, particularly of the cheek and gums. Perhaps that is not surprising, given where it is placed to be used. Oral squamous cell carcinoma, a form of cancer of the mouth, often occurs in the site at which snus is commonly placed. It has also been shown that snus causes increased blood pressure, particularly in females, and despite not being inhaled it can contribute to an increased rate of asthma.

Aside from all that, snus contains nicotine, which we know is addictive. Regardless of the form in which it is taken, it creates the addiction and cravings that rob people of the choice not to use the product, which the Minister spoke about so powerfully last week. It is important that we consider this carefully, because otherwise people will become addicted to snus as another form of nicotine.

[Jack Rankin]

The shadow Minister is a doctor, so she is learned in this area, and she makes the case that snus is harmful in the same way as tobacco. What does she know of the relative harm? I am concerned that, in taking quite a studs-up and puritanical approach, we are taking away things that might not be as bad as cigarettes that could allow people to effectively tier down. Does she have any thoughts on that?

[Dr Johnson]

That was the second question I considered when preparing for the debate on this clause. My first question was: what is snus? My second was: if it is a tobacco product, why is it treated differently? We have talked about all sorts of different tobacco products—cigarettes, cigars, snuff—yet this one has particularly robust regulation and a robust legal framework. The only reason I could find was that it is new, trendy and coming forward very quickly, and there were concerns that it would quickly take over the children’s market in the same way as vaping. That is the only suggestion I was able to find. I am sure the Minister will be able to help us to understand why snus is treated so robustly, although I am not sad to see that.

Clause 7 makes it an offence to manufacture oral tobacco products. Oral tobacco products are defined quite particularly as those that are for oral use but not intended to be inhaled or chewed, so they do not include chewing tobacco, which would be included under clause 1. They also have to be in either powder or particle form—as I said, they are in the form of ground tobacco. Currently, the Tobacco and Related Products Regulations 2016 define “tobacco for oral use” similarly, as tobacco “intended for oral use”, not to be inhaled or chewed, and

“in powder or particulate form or any combination”,

whether presented in a

“sachet portion or a porous sachet, or in any other way”.

Regulation 17 provides for a UK-wide ban on the production and sale of snus. Schedule 6 to the Bill, which we will come to, will repeal that measure and replace it with clause 7.

I want to ask the Minister why it is an offence to manufacture oral tobacco products in the UK, and not an offence to manufacture other tobacco products. He has talked about the need for a smoke-free generation and his worries that smoking tobacco harms individuals’ health, wellbeing and ability to choose, but he has not chosen to ban the production of other tobacco products. I found that the last time an English-produced cigarette rolled off the production line was at the Horizon Imperial Tobacco factory in Nottingham in May 2016, and the last UK-made cigarette was produced at Japan Tobacco International’s plant in County Antrim in October 2017. He may feel that such a ban is unnecessary because we are not producing any tobacco products, but I am interested in his thoughts on the matter.

The penalty here is the most severe so far. We have had some debate about different clauses containing fines at levels 3, 4 and 5 on the standard scale, but this clause contains a much more severe penalty for a product that may or may not be less harmful than cigarettes, although it has not been suggested that it is much more harmful. The fine for breaching clause 7 on the ban on manufacture of snus is, on summary conviction, imprisonment of six months, a fine or both. Six months is based on the current upper limit in a magistrates court, but the Lord Chancellor announced in October last year a plan to increase the maximum penalty for a magistrates court to 12 months’ imprisonment, which would presumably apply to this Bill. I will be grateful if the Minister could clarify whether that is the case and whether there have been any convictions under the existing legislation. The penalty for conviction on indictment would be imprisonment not exceeding two years, a fine or both—again, quite severe penalties when compared with other aspects of the Bill and other tobacco products. I am interested to understand why.

[Sarah Bool]

Will my right hon. Friend give way?

[Dr Johnson]

I am happy to give way—and to be promoted.

[Sarah Bool]

I apologise to my hon. Friend. I might have misunderstood, so may I clarify the intended purpose here? If snus is illegal under earlier regulations, what is this further provision? Is it to ensure that nicotine pouches are also caught? The UK has already banned the sale of all oral tobacco products, including snus, under the Tobacco for Oral Use (Safety) Regulations 1992, which implemented European Union directive 92/41. I am hoping for some clarity about that, but perhaps it will come from the Minister.

[Dr Johnson]

My understanding—I am sure the Minister will leap to his feet to correct me if I am wrong—is that the Bill does not apply to nicotine pouches per se, because nicotine pouches do not contain tobacco. As I understand it, the brands we see in our local supermarket in similar round pots contain nicotine, and they are put in the mouth and absorbed in a similar way, but they are not tobacco products. As I read the Bill, clause 7 will not apply to them, and obviously they are not currently illegal, because they are widely sold.

[Andrew Gwynne]

I can easily clarify that point. The clause applies to relevant oral tobacco products, which are defined as tobacco products intended for oral use, not intended to be inhaled or chewed, and that consist wholly or partially of tobacco. It does not apply to tobacco-free nicotine pouches, which are sometimes informally referred to as snus; the Bill classes nicotine pouches as nicotine products.

[Dr Johnson]

I thank the Minister for clarifying that so comprehensively.

Clause 8 deals with the sale of snus. Clause 7 having made it an offence to manufacture snus, clause 8 bans the sale of snus, which it defines, in the same way as described by the Minister, as a “relevant oral tobacco product”. In wording that is slightly different from that in other clauses, clause 8 also describes the offence as not only to sell, but to

“offer or expose…for sale”.

I had to look up what that meant. To help the Committee, apparently, to offer or expose something for sale means to expose it to attract an offer of purchase from the public. Something is put in the shop window—in the same way as the bongs the Minister described in a shop window the other day—to be visible to a customer and the customer may then choose to make an offer for the purchase of the product, and the product is thereby exposed for sale. In essence, this provision will make putting these products in a shop window an offence.

I am interested to understand why the wording in clause 8 is different from that for all the other tobacco and nicotine products in the Bill, where that wording is not used. If the Minister could explain that, I will be grateful. Again, the defence offered by clause 8 is “all reasonable steps”, but I am not sure what such steps would be, so I will be grateful for clarification on that, too, please.

The penalties for disobeying clause 8 are quite severe. The penalty on summary conviction is

“imprisonment for a term not exceeding the general limit”

in a magistrates court, which is six months, potentially rising to 12 months based on what the Lord Chancellor has said over the past few months, or a fine—of how much, the Bill does not state, so perhaps the Minister could help with that—or both. On conviction on indictment, the penalty is

“imprisonment for a term not exceeding 2 years, or a fine, or both.”

That means that we have a contradiction within the Bill. For virtually any other tobacco or nicotine products that may not be sold, but are sold by an offender, the offender is liable for a fine at level 3, 4 or 5, but clause 8—the sale of snus, as distinct from all other tobacco products—creates an offence that carries a penalty of significant imprisonment. I am not saying that that should not be the case, but I am interested to understand the rationale for the difference, because, notwithstanding any devolution differences, the decision on what to do in England and Wales is clearly for this Government and this Minister.

Clause 9 concerns possession with intent to supply in the course of business of a “relevant oral tobacco product”, as has been defined in clauses 7 and 8. I am interested in what is meant by “the course of business”. If one looks at section 4 of the Misuse of Drugs Act 1971, where possession with intent to supply is most readily thought of, it is the intent to supply it to another person. However, does “the course of business” imply that money must change hands? If one had the intent to supply to another without being paid, would that not be in “the course of business” and therefore be legal? Also, does the word “business” itself imply a properly regulated business? It could not be a properly regulated business in so far as it would be an illegal sale. Does the Minister therefore make a distinction between the product being sold from a business premises as opposed to being bought down the pub from an acquaintance?

Amendments 60, 61 and 62 to clause 9 basically look once again at the principle of proportionality. If, for example, we were to prosecute someone for the sale of cigarettes to a 19-year-old born on 1 January 2009, and it was that person’s first offence, we would give them a fine—so why would we wish to consider imprisoning somebody at the first offence for selling snus? The crime would appear to be somewhat similar but the penalty is very different. I do not intend to push the amendments to a vote, although other hon. Members may wish to, but they are designed to provoke debate on the proportionality of different offences, and the inconsistency between the penalties for different offences that may appear to be very similar. Amendments 60 and 61 insert the phrase

“save if it is a first offence”

and amendment 62 says:

“A person who has admitted guilt of a first offence…is liable to a fine not exceeding level 3 on the standard scale or a caution.”

I will be interested in the Minister’s comments.

[Jack Rankin]

I am sorry if this is my ignorance as a new legislator, but clauses 7, 8 and 9 applied to England and Wales. However, clauses 56, 57 and 58 apply the same measures to Scotland, and then we have the same for Northern Ireland. In previous clauses, we have also seen that replicated for Wales. Does that mean that clauses 7, 8 and 9 apply to both England and Wales, and how come that devolution is treated differently? Perhaps my hon. Friend the Member for Sleaford and North Hykeham knows the answer to that, or maybe the Minister could clarify.

[Dr Johnson]

I thank my hon. Friend for his point. I believe that the Bill specifies somewhere which clauses apply under which jurisdictions, but I cannot remember exactly which page that is on. I am sure the Minister in his summing up will be able to identify where my hon. Friend can look to review that, but some of the clauses will apply to different jurisdictions. Some will apply to the whole of the United Kingdom and others will apply to England and Wales, or England alone, depending on various different factors. My hon. Friend will be able to look at the relevant part of the Bill to find that out. My understanding is that clauses 7, 8 and 9 will apply in England and Wales, and I would be grateful if the Minister clarified that point in his summing up.

As my hon. Friend the Member for Windsor has identified, clauses 56, 57 and 58 apply to Scotland; they essentially replicate clauses 7, 8 and 9. Clause 56 prevents the manufacture of snus, clause 57 prevents the sale of snus and clause 58 prevents the possession with intent to supply of snus. Amendments 70, 71 and 72 to clause 58 replicate amendments 60, 61 and 62 and say that there should be proportionality in relation to penalties.

--- Later in debate ---

[Andrew Gwynne]

I am grateful to the shadow Minister for her comments. Although I appreciate her intention to establish greater leniency for first-time offenders, these amendments are not appropriate. Tobacco and vape offences must be taken seriously. We do not want to weaken the penalty regime for these offences, including offences relating to snus, by creating exceptions for first-time offenders or anyone who has committed these offences. We do not want to remove the ability of the court to issue a higher-level penalty, where that is viewed as proportionate for a particular case, for anyone convicted of these offences.

I turn to the shadow Minister’s comments on clauses 7 to 9, 56 to 58 and 73 to 75. Those clauses make it an offence to manufacture, sell or offer for sale, or possess with the intent to supply, a relevant oral tobacco product, such as snus, in England, Wales, Scotland and Northern Ireland. A relevant oral tobacco product is something intended for oral use—the clue is in the name: it is not intended to be inhaled or chewed and it consists wholly or partly of tobacco in powder or particulate form. That includes snus.

As the shadow Minister rightly pointed out, snus has been banned in the UK and the EU since 1992. Snus was banned as it was a novel tobacco product that is harmful to health. Snus contains harmful compounds that have been demonstrated to cause cancer, including cancers of the mouth. The manufacture of snus with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector is currently banned, as she rightly pointed out, under the Tobacco and Related Products Regulations 2016. These clauses re-enact that ban on manufacture but, unlike the 2016 regulations, do not limit it to supplying the UK or travel retail sector. In effect, that extends the ban to include manufacturing snus for export. That simplifies enforcement and reduces the possibility of such harmful products being available within the United Kingdom.

[Dr Johnson]

How many manufacturers in the UK are producing snus for export?

[Andrew Gwynne]

I will have to get back to the hon. Lady on that point. We will write to Committee members to update them, because I do not have that information to hand or in my mind.

As I was saying, the supply of snus for consumption in any part of the United Kingdom or through the travel retail sector is also already banned under the Tobacco and Related Products Regulations 2016, and these clauses recast the existing ban as a general ban on sale. The ban on possession of snus for intent to supply support the ban on sale, while preserving the current position under the Tobacco and Related Products Regulations 2016, which allows possession of snus for personal use.

Under these clauses, it will not be an offence to possess snus for personal use or for personal gifting to friends and family; this is not about criminalising individuals who possess snus for personal use. These clauses maintain and simplify the ban, in place since 1992, on the sale of a harmful tobacco product. The clauses also make the prohibition on snus more comprehensive and make the legislation clearer and more accessible. We have no intention of allowing a banned and harmful product into the United Kingdom market. I commend the clauses to the Committee.

The hon. Lady asks about “all reasonable steps”. As we have already discussed, it will be for the discretion of trading standards as to whether all reasonable steps have been taken. As we know, they take a proportionate approach to these matters, and we know that their current procedures work. There is no expectation that they will not work with the legislation before us.

What would prevent a retailer from just giving some of these products to a customer, rather than selling them, to get round the law? Well, there is “brand promotion”, which includes free giveaways anyway. That covers all tobacco products—so it covers that situation.

--- Later in debate ---

[Dr Johnson]

I thank the Minister for going through the questions thoroughly. I did not want to risk his getting to the end of his speech without answering the question of why snus is treated differently from other forms of tobacco. Is it merely a historical artefact?

[Andrew Gwynne]

The hon. Lady need not worry so much, because I have notes to clarify her points. Many people ask why we are banning snus but only gradually raising the age of sale for cigarettes, given that snus is less harmful than cigarettes. Consumption of any tobacco product is harmful. We heard that—[Interruption.]. We heard that very loudly and clearly from somebody upstairs, but also from the four chief medical officers. They made it very clear that there is no safe level of tobacco consumption and that tobacco is uniquely harmful as a product in whatever form it is consumed.

It is this Government’s policy to support people to quit all forms of tobacco. Snus has been banned in the UK and across the EU since 1992. It was banned because it was a harmful novel tobacco product at the time, and it still is. It was agreed to prevent this new harmful product from ever coming on to the market. Why on earth would we now decide to give the tobacco industry a get out of jail free card and allow a product that has never ever been allowed on the market in the United Kingdom to enter the marketplace, irrespective of the age of sale?

[Dr Johnson]

To be clear, I am not suggesting that it should be on the market, as the Minister well knows, because I support both helping people using tobacco to quit and preventing people from starting to use tobacco. I merely want to understand why there is a difference in treatment. On the basis of what the Minister has said, why not make the penalties for cigarette sales the same as the robust penalties that already exist for snus sales? It is his choice.

[Andrew Gwynne]

The hon. Lady teases me, Sir Mark, and I get her desire for scrutiny of the issue of fines and of the measures we will take to enforce these laws in England, where they stand at different rates to other parts of the United Kingdom. There are different rates for different products as well. If somebody wants consistency across the four nations and consistency of approach across all products, I get that—that is laudable—but we believe that the measures in the Bill are proportionate and workable. If they turn out not to be—if they turn out to be an incentive rather than a disincentive—Ministers can come back and can look at these things again.

On territorial extent, the earlier clauses refer to England and Wales and the later clauses to Scotland and Northern Ireland. As the shadow Minister pointed out to the hon. Member for Windsor, a full breakdown of the territorial extent of clauses can be found in the annexe of the explanatory notes to the Bill, which hopefully will then be able to clarify in his mind which bits are UK legislation, which bits are devolved legislation and which bits have territorial extent across England, England and Wales, Great Britain or the United Kingdom.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clauses 8 and 9 ordered to stand part of the Bill.

Clause 10

Sale of vaping or nicotine products to under 18s

[Dr Johnson]

I beg to move amendment 63, in clause 10, page 5, line 33, at end insert

“, save if it is a first offence.”

See explanatory statement to Amendment 66.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 64, in clause 10, page 5, line 33, at end insert—

“(4A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a caution.”

See explanatory statement to Amendment 66.

Clause stand part.

Clause 59 stand part.

Amendment 80, in clause 76, page 40, line 9, at end insert

“, save if it is a first offence.”

See explanatory statement to Amendment 83.

Amendment 81, in clause 76, page 40, line 9, at end insert—

“(4A) A person who has admitted guilt of a first offence under this Article is liable to a fine not exceeding level 3 on the standard scale or conditional caution.”

See explanatory statement to Amendment 83.

Clause 76 stand part.

New clause 10—Age verification requirement for online sales of vaping devices and products—

“(1) A person commits an offence if the person—

(a) carries on an online vaping product business, and

(b) fails to operate an age verification policy in respect of online sales of vaping products and devices.

(2) An ‘age verification policy’ is a policy that steps are to be taken to establish and ensure the age of a person attempting to buy a vaping product (the ‘customer’) is not under 18 years of age.

(3) The appropriate national authority may by regulations amend the age specified in subsection (2).

(4) The appropriate national authority may publish guidance on matters relating to age verification policies, including, in particular, guidance about—

(a) steps that should be taken to establish a customer’s age,

(b) documents that may be used as evidence of a customer’s age,

(c) training that should be undertaken by the person selling vaping products,

(d) the form and content of notices that should be displayed on websites; and

(e) the form and content of records that should be maintained in relation to an age verification policy.

(5) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(6) Regulations under subsection (3) are subject to the affirmative resolution procedure.

(7) In this section—

‘the appropriate national authority’ means—

(a) in relation to England, the Secretary of State, and

(b) in relation to Wales, the Welsh Ministers,

‘online vaping product business’ means a business involving the sale of vaping products by retail online.”

This new clause introduces a requirement on online vaping product businesses to operate an age verification policy covering steps to be taken to establish the age of persons attempting to buy vaping products online. It reflects provisions in place in Scotland.

[Dr Johnson]

The amendments in this group are similar to previous amendments and are designed to provoke debate on the proportionality of the offences. Like other such Opposition amendments, amendment 63 would amend clause 10 to add

“, save if it is a first offence”.

Amendment 64 would amend clause 10 by adding that if someone has admitted guilt of a first offence under the clause they are liable for a fine at level 3 of the standard scale of caution. We are making a suggestion that the Minister could consider more lenience for someone who commits such an offence for the first time as opposed to someone who recklessly and repeatedly flouts this important legislation.

Did you want me to discuss the whole of clause 10 at this point, Sir Mark?

[The Chair]

The debate includes clause 10 stand part.

[Dr Johnson]

Clauses 1 to 9 of the Bill have predominantly dealt with tobacco products of varying kinds. Clause 10 moves on to the sale of vaping or nicotine products to under-18s, distinct from the measures on a smoke-free generation and the date of birth of 1 January 2009.

The first question is what are the vaping products of which we speak. Clause 48 deals with the interpretation and definitions within part 1. It defines a vape as

“a device which…vaporises substances, other than tobacco, for the purpose of inhalation through a mouthpiece”.

That applies whether it vaporises tobacco as well or not. It excludes medical devices, although we heard in evidence that no vapes are medically approved in the United Kingdom, and medicinal products that vaporise, including any aerosolisers. The clause also refers to an item that is intended to form part of a device, including anything to be attached to a vaping device with a view to imparting flavour. As the Government have already brought forward legislation to ban single-use vapes, it is important that individual components of reusable vapes are covered by the Bill.

A “vaping product” itself means a vape or vaping substance. A vaping substance means a substance other than tobacco that is intended to be vaporised by a vape. Vapes themselves can either contain nicotine or not and work essentially by heating up a liquid that creates a vapour to be inhaled. A nicotine vape typically contains nicotine, propylene glycol or vegetable glycerin, and flavourings, which we will come to discuss because of their importance in enticing children.

Nicotine products are also relevant to clause 10, on the sale of vaping or nicotine products. Clause 49 defines nicotine products as

“a device which is intended to enable nicotine to be delivered into the human body”,

part of a device that does that, or anything that contains nicotine. That is important because we have heard again and again how the industry will continually evolve to entrap people in a lifetime of nicotine addiction. This wide definition of anything containing nicotine helps to future-proof this legislation such that it does not have to be revisited again and again as the industry continues to evolve.

The main type of nicotine product currently on the market, other than vapes, is oral nicotine pouches from brands such as Velo and White Fox. These are a tobacco-free product placed between the lip and the gum for oral nicotine absorption. They are similar to Swedish snus, which we have discussed; they are pre-portioned pouches and they are produced in a variety of flavours. We have seen flavours such as lemonade razz and others that are designed with childlike descriptions, perhaps to influence children to use them. Certainly, when I talk to teachers, they say that they starting to see them used in the classroom. They look to parents very much like a small square of chewing gum, and some parents may not be aware of the hazards that these items pose.

The nicotine content within oral nicotine pouches can vary and is typically between 4 mg and 18 mg of oral nicotine per pouch. That is important; I have seen amendments suggesting that they should be limited 20 mg, but 20 mg is a lot. When we look at the amount of nicotine in a cigarette, we have to look not at the amount contained within it in its packet, but at how much is absorbed by the end user, the customer, when actually smoking it. The amount absorbed by the end user is much smaller than the amount in the cigarette. When brands imply that the amount within a pouch is similar to what is in a cigarette, they are talking about the amount within the cigarette itself, not how much the person smoking it will absorb from the cigarette.

The difference is quite marked: people may only take 1.2 mg from a cigarette when they smoke it in the usual way, so 18 mg in an oral nicotine pouch is an awful lot of nicotine. Some online retailers will sell products containing up to 150 mg of nicotine per pouch, with examples of flavours including black cherry, citrus and coffee. The release of nicotine from oral pouches is similar to, or faster than, from smokeless tobacco products and, given the Minister’s robust approach to snus and novel products designed to create addiction, I hope he will take a strong approach to these too.

Oral nicotine pouches sit alongside other novel nicotine products such as nicotine toothpicks and nicotine toothpaste that have emerged on the market. They are regulated under the General Product Safety Regulations 2005. Under those regulations, there is no age of sale requirement for retailers to impose. As such, individuals aged under 18 can legally purchase nicotine pouches, as opposed to tobacco and vaping products, which require all purchasers to be aged over 18. Clause 10 will help to deal with that.

Furthermore, oral nicotine pouches are not regulated by the Medicines and Healthcare products Regulatory Agency, since no medical claims are made, and they are not an alternative to an authorised medicinal nicotine product—something like Nicorette gum, for example. I should note that some supermarkets have a voluntary age of sale; some supermarkets and larger retailers, or even smaller retailers, will voluntarily not sell these products to under-18s, but there currently is no legal requirement for them not to do it.

There is also no restriction on the amount of nicotine contained in an oral nicotine pouch under the current legislation, as such new products sold within the UK can contain levels of nicotine exceeding other nicotine or tobacco-based products such as cigarettes. We have heard about the addictive nature of nicotine; the higher amount transmitted so rapidly into the bloodstream is clearly stronger in its effect and therefore undesirable because it will remove people’s choice not to have those products.

What about the health impact? The health impact of nicotine is another reason why we need to invoke clause 10. Some people say, “If you take the nicotine out of the tobacco, maybe that will be safer.” However, it is safer but not safe. According to the impact assessment produced by the Government in response to the Bill, a recent scoping review found that oral nicotine pouches claimed to be less toxic than cigarettes and that they deliver comparable amounts of nicotine. However, the data for that review was mainly available from industry-funded studies. Despite potentially lower toxicity than cigarettes, oral nicotine pouches still contain nicotine, and that still has harmful effects.

[Gregory Stafford (Farnham and Bordon) (Con)]

My hon. Friend is right to highlight all the problems of vapes, especially for children, and the lack of evidence out there, other than that produced by the industry itself. Is she aware of any independent studies, either in the UK or abroad, that have done any substantive investigation into how harmful vapes are, either for adults or for children?

[Dr Johnson]

I thank my hon. Friend for his intervention. Last Tuesday, we heard in evidence from various medical sources, and both the Select Committee and our processor Bill Committee heard in evidence that nicotine is, of itself, harmful, and that the chemicals added to vapes are harmful. In some cases, they are extremely harmful. I will talk more about vaping chemicals later. Indeed, sometimes the products do not contain what they are expected to contain, and that can be worse still. I will return to that subject later, too.

Nicotine is highly addictive and can permanently affect the development of the adolescent brain. We have heard how the industry targets young people, and that is because the adolescent brain is particularly vulnerable. Nicotine can permanently affect its development. Nicotine also fulfils all the criteria for drug dependence. Giving it up is very difficult, and withdrawal symptoms can include cravings, irritability, anxiety, trouble concentrating, headaches and other mental symptoms. Symptoms associated with nicotine and dependence are often not recognised by novice smokers, particularly if they are young.

[Dr Danny Chambers (Winchester) (LD)]

On the subject of how nicotine affects the brain and brain development, one thing we have not really touched on—and we have touched on many physical health issues—is the incidence of smoking among people with mental health issues. One submission was from the Mental Health and Smoking Partnership, which said that 45% of people with a serious mental health issue smoke, and around 25% of people with clinical anxiety. It would stand to reason that the impact on a young person’s brain could also start to lead to serious mental health issues, as well as all the physical health and development issues.

[Dr Johnson]

The hon. Gentleman is right to raise the importance of managing nicotine dependence for those with mental health conditions. We know that smoking, in particular, is more likely to take place among people with mental health conditions or those who are in mental health in-patient units. I am sure we will go on to discuss the issue of vending machines.

Last May, in the previous Bill Committee, we heard evidence from the Mental Health Foundation about the myth that tobacco helps with anxiety, and how that myth needed busting. We also heard about the importance of giving extra support to people with mental health conditions to enable them to kick the habit of nicotine—whether that habit is smoking or vaping—because it will help both their physical and mental health. However, it can be more challenging for them to complete. I am grateful to the hon. Gentleman for raising that important issue.

Returning to clause 10, a study considering the effects in adolescents of nicotine dependence after the initiation of smoking cigarettes found that the symptoms of nicotine dependence can appear only a few days after initiation. Given that oral nicotine pouches contain similar or higher levels of nicotine, similar symptoms may appear following initiation of oral nicotine pouch use, which is why it is particularly important for children that we pass clause 10 and ensure that children are protected from these nicotine products.

--- Later in debate ---

[Jim Dickson (Dartford) (Lab)]

I applaud the hon. Lady for her admirable history lesson on the background of vaping. Can I ask how it is relevant to what we are discussing in terms of the penalties and the sale of products?

[Dr Johnson]

It is relevant because we are discussing a product in the UK that we are considering essentially doing away with, and banning completely for children. The hon. Gentleman may note that we discussed the history of tobacco when we debated clause 1, on tobacco, and no less than two Members of the hon. Gentleman’s own party talked about how interesting and relevant that was—[Interruption.] At least one of those individuals appeared very genuine.

Let me go back to Hon Lik, who invented the first e-cigarette as a way to cure his own smoking addiction and to try to prevent deaths such as his father’s from lung cancer—and we have talked much about the potential for smoking to cause lung cancer. The basic concept of mimicking smoking via vaporising liquids remains the same. The company he started was later bought as a subsidiary of Imperial Tobacco, which again demonstrates that the industry will continue to try, where it can, to be involved in nicotine addiction.

The World Health Organisation proclaims that it does not consider electronic cigarettes a legitimate smoking cessation aid. It demands that marketers immediately remove from their material any suggestion that it considers electronic cigarettes to be safe and effective. In 2011, the WHO released a report on e-cigarettes recommending that they be regulated in the same way as tobacco products. Clause 10 will do some of that, inasmuch as it will bring e-cigarettes in line with the legislation on tobacco products so that they cannot be sold to under-18s. However, it does not go so far as to bring it in line with the new smoke-free generation legislation. The Minister may wish to comment on why he has not done so.

In the last Bill, the hon. Member for York Central (Rachael Maskell) tabled an amendment that would have included nicotine products in the smoke-free generation legislation, banning them for those born after 1 January 2009 rather than just for under-18s. Her concern, as I understand it, was that the industry would pivot to other forms of nicotine that did not contain tobacco, hook a new generation on them and use similar marketing techniques to hook them on a lifetime of nicotine addiction, as it once did with tobacco. The Minister could seek to avoid that by preventing non-medicinal products containing nicotine from being used by anyone born after 1 January 2009. That power is within his grasp. On a personal level—this is not necessarily my party’s view—I would like him to seize that power.

The sale of vaping products to under-18s is addressed in clause 10. One of the reasons for restricting the sale is the range of pulmonary and coronary conditions—lung and heart conditions—that can occur for people who vape. To help us to understand why they are so damaging, it is important to understand what is in vapes per se. This is not just about nicotine products; it is also about vaping products.

As I say, nicotine is an extremely addictive substance that disrupts brain development in adolescence. Because adolescence is a critical time for neural development, it makes young people particularly vulnerable to the negative effects of nicotine. Adolescence is marked by substantial neurodevelopment, including synaptic pruning and the maturing of the pre-frontal cortex, the part of the brain that governs decision making, impulse control and emotional regulation. Nicotine exposure during this period can disrupt those processes, leading to lasting cognitive and behavioural impairment. Research indicates that nicotine alters the neurotransmitter systems, noticeably those using acetylcholine and glutamate receptors, affecting the neural pathways essential for learning and memory development. Nicotine exposure during adolescence has been linked to deficits in attention, learning and impulse control. Studies have shown that adolescents using nicotine products exhibit diminished cognitive performance and are more prone to mood disorders, including depression and anxiety.

Another reason to get rid of these products, which relates to the point made by the hon. Member for Winchester, is that they can lead, in and of themselves, to problems with mental health. As hon. Members will know, these issues can adversely affect academic achievement—as we have heard from teachers’ evidence in the past and evidence to this Committee—and social interactions, potentially leading to broader physical challenges.

[The Chair]

May I ask the shadow Minister to shorten her very interesting and detailed explanation of why nicotine and other substances are harmful and focus more on the legislation and less on the historical and scientific background?

[Dr Johnson]

You will be pleased to know that I have concluded my remarks on history for now, Sir Mark, but with your leave, I want to talk about a couple of the chemicals that are found in vaping products. It is important for hon. Members to understand the reason for banning vaping products per se, as opposed to just nicotine products. There is a reason why both are included, rather than just one. That is why I wanted to discuss nicotine and its effects, as well as the effects of some other chemical constituents of the vaping product.

Propylene glycol is another main constituent of vapes. It is used in antifreeze, paint solvents and artificial smoke for fog machines and helps the vape to carry the nicotine and flavours to the user. When used in small amounts it is considered safe, but when used in high doses or over prolonged periods it can accumulate and cause lactic acidosis, depression of the nervous system and haemolysis, the destruction of red blood cells. When one’s red blood cells are destroyed, one becomes anaemic, which makes one tired and can make one very unwell.

Another component in some vapes is diethylene glycol, a toxic compound found in antifreeze that is associated with lung disease. It can be used as a sweetener, but it has resulted in many epidemics of poisoning since the early 20th century, perhaps most famously when it was found in wine and many bottles of wine had to be recalled. Believe it or not, some vapes also contain formaldehyde, which is classified as carcinogenic by the International Agency for Research on Cancer, showing once again that the products that clause 10 seeks to ban are not as benign as some may believe or as their pretty colours and flavours may suggest. It can also cause respiratory and skin irritation on exposure.

[The Chair]

Order. May I ask the shadow Minister to cut down on some of the detail? Just tell us that it is harmful and give us the reason, without going through a full paragraph on every chemical.

[Dr Johnson]

I am grateful for your guidance, Sir Mark. Other chemicals found in some vapes that can be harmful are acrolein, which is a herbicide, and diacetyl, which is found in flavours such as chocolate milk and toffee because it has a buttery taste. Another is benzene, which is found in car exhaust fumes and is a carcinogenic chemical that can cause such things as acute lymphoblastic leukaemia, chronic lymphocytic leukaemia, multiple myeloma and non-Hodgkin lymphoma—all conditions that we certainly do not want children, or indeed anyone, to get.

It is also worth noting that, because e-cigarette heaters contain a coil and cartridge with a metal component, the vapour can contain some heavy metals, including cadmium, which can cause chest pain, shortness of breath and cancer; nickel, which is carcinogenic; lead, which we know causes health problems; and chromium. That is a non-exhaustive list. My speech originally contained such a long list that I feared it would take up all the Committee’s time. I do not want to do that, Sir Mark, or to test your patience, but I want to emphasise that these findings come from the research that has been done on vapes so far. It took time for the scientific community to establish the fact that cigarettes and tobacco are harmful to health and the ways in which they are harmful. We are already finding the health challenges of vaping, so it is important for us to take these steps today.

On 8 February 2023, I presented the Disposable Electronic Cigarettes (Prohibition of Sale) Bill, a ten-minute rule Bill that highlighted the challenges that vapes pose to the environment and to children’s health. I am pleased that the Government have now taken steps to ban them. Things have progressed, and I am personally delighted that this Bill is before the House. It is important to see the progression of legislation on vapes, which is so important not only to me but to Parliament and the country.

On clause 10, it is already an offence to sell nicotine vaping products to under-18s in all parts of the UK, but it is not an offence to sell nicotine products to them. Currently, local authority trading standards in England can bring a prosecution under section 7 of the Children and Young Persons Act 1933 for the under-age sale of tobacco products or cigarette papers; magistrates courts can impose a fine of £2,500 on conviction and prevent the individual from selling those products for 12 months. Under the Proxy Purchasing of Tobacco, Nicotine Products etc. (Fixed Penalty Amount) Regulations 2015, trading standards officers can issue a fixed penalty notice of £90 to individuals for purchasing or attempting to purchase tobacco and nicotine products for someone under 18. However, it is the adult making or attempting to make the purchase who commits the offence, not the retailer.

--- Later in debate ---

[Jack Rankin]

We are talking specifically about under-18s. I disagree with some of the later regulations on vaping, but when it comes to under-18s being given vaping products, I am aligned with the Government. Does my hon. Friend agree that if companies are giving away free products to Members of Parliament and staffers who are over the age of 18—some of them may be smokers—they are actually supporting the Government’s aim of getting to a smoke-free generation, which is very different from what we see in clause 10? I agree with the Government’s aim.

[Dr Johnson]

I think my hon. Friend highlights something common across our party. Many members of our party are uncertain, as I understand my hon. Friend is, about the changes to tobacco legislation for adults with the competency to make risk-based decisions. I understand your points; I do not necessarily share them, but I understand them.

[The Chair]

Order. Speak through the Chair, please.

[Dr Johnson]

Sorry. Equally, I note that the vast majority of Members across the House, both in my party and in other parties, strongly agree with clause 10 and the other clauses that seek to ensure that children do not have access to these products. If someone sells a vaping or nicotine product to a purchaser who is under the age of 18, it is an offence. Under clause 10(2), the seller can defend themselves on the basis

“that they were shown what appeared to be an identity document belonging to the purchaser and it confirmed the purchaser’s age as at least 18 years old, or…that they otherwise took all reasonable steps to avoid the commission of the offence.”

The Minister has talked about the simplicity of the smoke-free generation and his view that it is easier for shop workers to look at a piece of identification and establish whether someone’s birthday was before or after 1 January 2009 than to establish whether someone was born 18 years ago by doing the mathematics in their head from the person’s date of birth. That brings me again to the question of why we will not have a nicotine-free generation as well as a smoke-free generation. Would it be classed as a reasonable step? If a shop worker had asked for ID, taken the proper ID, as defined in clause 10(3), and done the mathematics wrong in their head, would they have taken all reasonable steps or would their arithmetic error mean that they were to all intents and purposes a criminal? I would be grateful for the Minister’s comments.

Acceptable identity documents for the purpose of buying nicotine or vaping products if one is over the age of 18 include a passport, a UK driving licence, a driving licence from the Channel Islands or the Isle of Man, a European photocard driving licence or a proof-of-age standards scheme card with a hologram. During the discussions of voter ID, there was a debate about how many people had access to different forms of ID. Passports are reasonably expensive and not everyone drives a car, so how would someone who did not drive a car or have a passport provide ID? When it came to voter ID, the previous Government looked at a number of reliable sources of identification that could be used, which included the veterans card, certain travel documents and the like.

[Sarah Bool]

Recent announcements from the Home Office have confirmed that businesses will be able to legally accept the use of digital proof of age for alcohol products. I would like to see that approach extended to these products, to make the life of retailers easier as far as identification goes. It would be good to have further consistency and an extension of the definition of identity documents to allow for digital forms.

[Dr Johnson]

Digital ID is not something that I am particularly familiar with, but nevertheless it sounds sensible, where ID is reliable, reproducible, not easily faked and easily identifiable by staff. Broadening the forms of acceptable ID would ensure that when somebody is old enough to legally purchase a product, it is not excessively challenging for them to obtain an ID to do so. Clearly the Minister would want people to be able to buy age-restricted products if they are old enough, so I am interested to hear his view not only on my hon. Friend’s intervention about digital identification, but on veterans cards, bus passes and other cards that demonstrate the age of the user and include a photograph for added reliability.

Clause 10(4) states:

“A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”

On a personal level, selling vapes and nicotine products to children is a dreadful thing to do, as I am sure the chief medical officer has said. I am more than happy for the Minister to increase that fine if he wants to, but I am interested to understand why he has set it at that level. Notwithstanding any changes across the four nations, it is important that we look at the choices that the Minister has made. That is what we are here to scrutinise.

The problem that clause 10 seeks to address is vaping among children. Are children vaping? Yes, I am afraid to say that they are, in large quantities. The biggest report of which I am aware that looked specifically at rates of youth vaping was published in 2023 by Healthwatch Blackpool. It looked at over 4,000 children and found that just under a third of them—31%—said that they

“currently vape or sometimes vape”.

Of those children, 65%

“expressed a preference for fruity flavoured vapes”,

which we will deal with later in the Bill. There is clearly an issue that vapes are being directly marketed to children with bright, attractive colours. Some of the most popular flavours include bubble gum, cotton candy, strawberry ice cream and unicorn milkshake. What does unicorn milkshake taste like? I have no idea, but it is easy to see the appeal to children.

An investigation by The Observer in 2022 found that ElfBar, a company that makes vapes, was promoting its products to kids via TikTok. The TikTok platform is apparently used by half of eight to 11-year-olds and by three quarters of 16 to 17-year-olds. When I found that out, I had a look at the screen time of my own children to establish that they were not getting on it.

[Jack Rankin]

I support my hon. Friend wholeheartedly on restricting flavours aimed at children, which I think is the Minister’s intention, but does she agree that vape flavours that are being advertised more generally, so long as they are straightforward and descriptive, can help people to shake smoking and can be firmly aimed at adults? The Government should not restrict the flavours so generally that the smoking cessation tool is weakened.

[Dr Johnson]

I am afraid that once again I have to disagree with my hon. Friend. I do not believe that those who advertise brightly coloured vapes shaped like highlighters or SpongeBob SquarePants, or flavoured as unicorn milkshake and green gummy bear, are advertising them for the consumption of adults. I do not doubt that there are some adult smokers in their 40s who enjoy the flavour of unicorn milkshake and green gummy bear—perhaps those flavours are nice—but I do not believe that adults are the target audience for that marketing at all.

[Jack Rankin]

Perhaps I explained myself ineloquently —or maybe my hon. Friend was being mischievous in her characterisation. I agree with her wholeheartedly, but I would say that raspberry is a perfectly legitimate flavour for an upstanding vape seller to sell to an adult smoker as a cessation device. I would not want to go too hard on that so that we do not cut off that legitimate smoking cessation route.

[Dr Johnson]

I thank my hon. Friend for clarifying his intervention but, again, I am not sure about that.

[The Chair]

Order. Flavours will come up later in the Bill. The question really is not pertinent to clause 10.

[Jack Rankin]

I will ask my hon. Friend about this point later.

[Dr Johnson]

My hon. Friend can ask me later, when we come to the colours and flavours.

To summarise, clause 10 is an important clause that seeks to stop children getting hold of vapes and nicotine products and, in so doing, aims to reduce the number of children who get hooked on nicotine, which has very harmful effects, and who may even damage themselves using vapes. In one school in my constituency, eight children collapsed after using vaping products. Lincolnshire police examined five of the vapes confiscated from the school and found that they contained antifreeze, poster varnish and other chemicals such as trichloroethylene, 2-methoxyethyl acetate, Steol-M and diethylene glycol diacetate—some very harmful chemicals that have no legal place in vapes at all. Some of those chemicals are banned, but are nevertheless being put into these products.

Clause 59 is similar, but, given the principle of devolution, applies to Scotland. It provides for the same principle of an extension of offences to vaping and nicotine products, but does so in recognition of the fact that Scotland has different laws by amending the Tobacco and Primary Medical Services (Scotland) Act 2010. It adds various substitutions to ensure that it is not possible to buy tobacco and vaping products in Scotland, in order to protect the children of Scotland.

Clause 76 provides continuity across the United Kingdom based on the principles of devolution in Northern Ireland and of working together to protect the interests of children. That is very important. The clause adds article 4H, on the sale of vaping and nicotine products, to the Health and Personal Social Services (Northern Ireland) Order 1978 after article 4G, which is itself inserted by clause 75. This provision essentially inserts the same provisions as those in clause 10, except that once again we see a higher penalty in Northern Ireland. Northern Ireland is clearly more concerned with punishing those who sell vaping and nicotine products to children than the Minister appears to be.

Amendments 63, 64, 80 and 81 look specifically at the proportionality of penalties and the balance in choosing them—whether they be as punitive as those in Northern Ireland, or those in place for snus for people who are reckless and do it often as opposed to those who have committed a first offence and do not do it so often.

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[The Chair]

Order. Before we proceed, let me explain that Sir Mark has had to leave the Chair and I am taking over for the duration—for as long as you choose to sit. I have, however, been briefed, so I am sure that nobody in the room will seek to take advantage of a change of Chairman to cover the same subjects all over again.

[Dr Johnson]

That is very kind of you, Sir Roger. It is good to see you in the Chair, and an honour to serve under your chairmanship again. As you have been briefed, we are discussing clause 10, the importance of banning the sale of vaping and nicotine products to children. We had just moved on to new clause 10, which is part of this group of amendments. It was tabled by the Opposition and looks at the online marketplace, because there is concern that the industry seeks every single workaround and loophole as creatively as possible. The new clause seeks to ensure that guidance is provided to prevent advantage from being taken in the online marketplace, particularly because we have seen adverts for “no ID” sales, which clearly are designed to entice children to buy products that they should not be able to get.

Subsection (4)(d) of the new clause talks about

“the form and content of notices…displayed on websites”,

so it looks at the messaging. I suppose that is the equivalent of clauses 5 and 6: “What should our billboard notice say?”

New clause 10(5) says:

“A person guilty of an offence under subsection (1) is liable…to a fine not exceeding level 2 on the standard scale.”

The Minister may wish to change that—it was the opening point for that offence—but again there clearly needs to be a penalty for people who do sell in the online marketplace.

Subsection (6) says:

“Regulations under subsection (3) are subject to the affirmative resolution procedure.”

We did talk about the negative resolution procedure—my hon. Friend the Member for Windsor is temporarily not in his place—but essentially the affirmative resolution procedure means that regulations would require, I believe, a vote in the House to push them forward.

Just to clarify, subsection (7) says:

“In this section…‘the appropriate national authority’”,

which would be able to provide the regulations and produce the guidance, would be the Secretary of State in England and the Welsh Ministers in Wales.

The principle of this proposal is that vaping businesses that operate online should be subject to the same regulations, rules and laws, enforced with the same stringency and severity, as corner shops, supermarkets and the like.

[Sarah Bool]

I rise to speak in support of new clause 10, on banning those who are under 18 from vaping. Many know about the health risks of smoking. They see it as a bad habit and disgusting, as the children of my hon. Friend the Member for Farnham and Bordon noted, but vapes are seen as being new age and social. Parents are in danger of encouraging vaping by buying something that they think is safer than smoking or drugs. We must be very careful about that, so this ban will be important in restricting sales. Children fear being excluded, so, through peer pressure, they are forced into vaping. We need to stamp out this practice.

Children are often confused about vaping. The problem is that they get an accidental addition to nicotine and struggle to pay attention in school, which has a negative impact not just on them but on their classmates. Apparently, children vape to deal with stress and anxiety—they are almost self-medicating, which is appalling. It is right that we protect our children by introducing this offence.

[Dr Johnson]

My hon. Friend talks about children self-medicating, but are they not making the situation worse? The use of vapes and nicotine products may exacerbate, rather than ease, any mental health symptoms that they have.

[Sarah Bool]

Absolutely. Unlike my hon. Friend, I am not a medical professional, but I wholeheartedly agree that it is a self-perpetuating cycle, and we need to stop it as soon as possible to protect children.

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[Andrew Gwynne]

It is good to see you back in the Chair, Sir Roger. Before addressing these amendments, the respective clauses and the proposed new clause, I want to make it clear that I will be using the generic term “vapes or vaping products” throughout to refer to vapes, e-cigarettes or nicotine vapour products. Likewise, I will use the term “nicotine products” to refer to consumer nicotine products, such as nicotine pouches. I am not referring to licensed nicotine-based medicines, which will not be further restricted by the Bill.

Under clause 10 it will continue to be an offence to sell a nicotine vape to a person who is under the age of 18 in England and Wales, and anyone who is found guilty of the offence will be liable to pay a fine of up to £2,500 if convicted. It is a defence if the person can prove they were shown what appeared to be an identity document belonging to the purchaser that showed they were over 18, or that they otherwise took all reasonable steps to avoid committing an offence. The clause also extends this age of sale restriction to consumer nicotine products and non-nicotine vapes, as we know that children are accessing those products. There are currently no age of sale restrictions on those products, and non-nicotine vapes can easily have nicotine solutions manually added to them.

Clause 59 refers to Scotland and extends existing offences in Scotland for selling vaping products to under-18s, proxy purchases on behalf of under-18s, and failure to operate an age verification policy related to vaping products, so nicotine products are also covered in those offences. By amending that legislation, we will align the approach across the United Kingdom, which is the wish of the devolved Administrations. The clause amends Scottish legislation by replacing the term “nicotine vapour products” with the term “vaping products”, thus aligning the definitions across the UK.

Another of the changes to Scottish legislation in this clause makes it an offence for any person managing or controlling a premises to have a prohibited vending machine available for use. This effectively maintains the existing prohibition in Scotland on vending machines selling vaping and tobacco products; indeed, it extends it to include machines from which nicotine products, herbal smoking products and cigarette papers can be purchased. Again, this aligns the approach across the UK.

Clause 76 applies similar measures in Northern Ireland to those in England and Wales, meaning that it will be an offence to sell a vaping or nicotine product to a person in Northern Ireland under the age of 18, thereby expanding current Northern Ireland legislation to cover all vaping products and nicotine products. Anyone convicted of the offence will be liable to a pay a fine of up to £5,000. All these measures for England, Scotland and Northern Ireland will come into force six months after the Bill receives Royal Assent, to give retailers time to introduce them.

These clauses will play an important role in ensuring that we can tackle youth vaping successfully. They provide businesses with certainty as to who they may legally sell products to, and they reinforce our health advice that children should never vape.

However, the amendments tabled by the shadow Minister would undermine that approach by creating a more lenient penalty regime for the offence of selling vaping or nicotine products to someone under age. They would establish that someone who admits to committing an offence for the first time would either be liable on summary conviction to a fine not exceeding level 3 on the standard scale—that is, a fine of £1,000—or be given a caution instead. Level 3 is one level lower than the level 4 fine of £2,500 that someone who commits this offence is liable to under the current legislation.

[Dr Johnson]

The Minister knows me well enough to understand that I would never seek more lenient penalties for those selling vapes to children; there is no excuse for selling vapes to children. However, I am concerned that there may be sales in the online marketplace that are not adequately covered by the regulations as they are currently drafted. The principle of new clause 10 was to ensure that such offences are properly covered, so I would be grateful for his reassurance in that regard.

[Andrew Gwynne]

I will come to that; I am just spelling out why I am concerned about the consequences of the shadow Minister’s proposals in the amendment, because they would lead to more lenient penalties for those committing an offence for the first time than they are liable to under the current legislation. Again, like the amendments that we have already discussed, the effect would be to create a first-time offence, and if the Committee is content, I will not repeat myself, as the rationale for my asking the shadow Minister to withdraw the amendment remains the same.

The shadow Minister’s new clause 10 would introduce an offence in England and Wales for businesses selling vaping products online without applying an age verification policy. It would therefore create a requirement for businesses selling vaping products online to take steps to establish and ensure that any customer attempting to purchase those products online was above the age of 18.

Although I am incredibly sympathetic to the shadow Minister’s intentions, as I said earlier, the Bill already makes it an offence in England and Wales to sell a vaping or nicotine product to anyone under the age of 18. As with in-person retail, online retailers must take all reasonable steps to avoid selling vaping products to anyone under age. Alongside the Bill, we are exploring how we can enhance online age verification to further tackle online under-age sales. The office for digital identities and attributes, which sits within the Department for Science, Innovation and Technology, is creating a framework of standards and governance, underpinned by legislation, which will enable the widespread use of trusted digital identity services. We are working closely with DSIT to consider how its work to enable the use of digital identities can best support retailers selling tobacco and vapes, whether online or in-person. It is for those reasons that I commend clauses 10, 59 and 76.

[Andrew Gwynne]

The hon. Gentleman should panic not; I had not quite come to the end of my contribution. I was merely saying that it is for those reasons that I commend clause 10, clause 59 and clause 76 to the Committee.

[Dr Johnson]

rose—

[Andrew Gwynne]

If the hon. Lady will allow me to first answer her hon. Friend, it may well be that I answer her thoughts in the course of answering him. The hon. Gentleman is absolutely right that there is a difference here between our approach to tobacco and to vapes. The hon. Lady—the shadow Minister—has, rightly, always been, and will continue to be, a doughty campaigner for a nicotine-free generation and for a smoke-free generation. That may well be where we end up at some stage in the future. However, we believe that the measures in the Bill are entirely appropriate and proportionate. We are not planning to raise the age of sale for vapes in a similar way to that for tobacco; let me explain why.

Tobacco is a uniquely harmful product. No other consumer product kills two thirds of its users. It is therefore entirely appropriate to create a smoke-free generation, as we are seeking to do in this legislation, and to gradually phase out tobacco so that it is a thing of history. Although vaping is not harm-free—I will come on to the harms in due course—it is less harmful than smoking and, currently, we do not believe that a generational age of sale restriction on vapes would be an appropriate response to the current evidence in relation to health harms. Instead, the Bill contains strong measures to stop the promotion and the blatant advertising of vapes to children, and so bring about definitive and positive change to stop future generations from becoming hooked on nicotine.

It may well be, over the course of the coming years, that greater evidence emerges about the harms of nicotine. Lots of studies of vaping are taking place and it may well be that we have to take further action; that is why the measures in the Bill are permissive. The tobacco industry has often, after having one route closed off to it, sought an alternative route to maintain market share and market presence. It may well be that the vaping industry employs exactly the same tactics—all the evidence so far would suggest that it does. That is why the measures in the Bill are not just proportionate for the here and now but future-proof, so that Ministers can come back to Parliament, on a whole range of issues, and seek to close off other routes.

I would hope that, with that explanation, the hon. Member for Farnham and Bordon understands that there is a very big difference between tobacco and vaping. However, we reserve the right to return to Parliament and to utilise the powers in this Bill, should we be granted them, to ensure that, if there is evidence of harms, we can immediately respond to those.

--- Later in debate ---

[Dr Johnson]

I thank the Minister for clearly explaining that children should never vape. In fact, if children are smoking and wish to quit, they can get support from their GP and others, but they should not use vaping, because vaping is bad for children.

To take the Minister back to my question about new clause 10, before he took the two previous interventions, he said that he is working with DSIT to provide regulations and legislation that would cover new clause 10 and ensure that online sellers of age-restricted products are obliged to check a person’s age before selling them. Will he advise when he expects such regulations to be available? Will they be in time for his smoke-free generation in a couple of years’ time?

[Andrew Gwynne]

I absolutely hope that the measures will be worked on at pace and will be available for that. Officials from the Department of Health and Social Care are working closely with colleagues in DSIT to ensure that these matters are included in the online age verification legislation that it is seeking to introduce.

A couple of other points were raised in the course of the debate. On the issue of fines and why there are inconsistencies, I do not wish to over-labour the point, but the maximum fines that the shadow Minister quoted are consistent with existing tobacco and vapes legislation. We believe they are proportionate to the severity of the offences. There is a bit of a pushmi-pullyu argument here, because on the one hand we have had amendments that seek to have more lenient penalties, and on the other, arguments for harsher penalties. We believe that the current fine levels in England are appropriate, which is why we are remaining with them. It is for trading standards to take a proportionate approach to enforcement, deciding the appropriate action to take for a given case to achieve compliance based on the evidence before it.

On TikTok and advertising, I understand that the Advertising Standards Agency has issued an enforcement notice to vaping companies and brands instructing them to stop any advertising on TikTok. To date, it has reported around 300 posts, approximately 80% of which predated the notice to TikTok for removal.

On the issue of enforcement with physical sales, and online sales with age verification, it was interesting that in the evidence session we heard from National Trading Standards that it has undertaken test purchasing both in brick and mortar premises and online and that the failure rate in brick and mortar premises was 26%, compared with 10% online. We do not want any breaches of the law, but that puts into context that the current issues tend to be on the ground rather than online—although we need to cover all bases. I ask the shadow Minister to withdraw her amendments and proposed new clause.

[Dr Johnson]

I am grateful to the Minister for providing the extra information. Amendments 63, 64, 81 and 80 were designed once again to provoke debate on the coherency of the penalties across the different clauses of the Bill. Sometimes the penalties are different for the same offence and, inexplicably, sometimes they are the same for different offences that perhaps one would expect them to be different for. However, I will not press those amendments to a vote, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11

PURCHASE OF VAPING OR NICOTINE PRODUCTS ON BEHALF OF UNDER 18S

[Dr Johnson]

I beg to move amendment 65, in clause 11, page 6, line 5, at end insert

“, save if it is a first offence.”.

See explanatory statement to Amendment 66.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 66, in clause 11, page 6, line 5, at end insert—

“(3A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a caution.”.

This amendment, together with Amendment 63, 64, and 65, prevents penalties for a first offence under sections 10 and 11 being beyond level 3 and provides for a discretionary caution.

Clause stand part.

Amendment 82, in clause 77, page 40, line 22, at end insert

“, save if it is a first offence.”.

See explanatory statement to Amendment 83.

Amendment 83, in clause 77, page 40, line 22, at end insert—

“(3A) A person who has admitted guilt of a first offence under this Article is liable to a fine not exceeding level 3 on the standard scale or a conditional caution.”.

This amendment, together with amendments 80, 81, and 82, prevent penalties for a first offence under sections 76 and 77 (pertaining to age of sale restrictions for vaping and nicotine products in Northern Ireland) beyond level 3 and provides for a caution.

Clause 77 stand part.

[Dr Johnson]

Amendments 65 and 66 apply to clause 11. In line with other Opposition amendments tabled to various clauses of this Bill, they seek to provoke debate on the coherency of the penalties. They encourage the Minister to look in detail at those penalties before Report—specifically, to consider the differences between the shop worker, the shopkeeper and the shop owner in terms of the level of fine required, and also to consider the individual who inadvertently commits an offence on one occasion versus the person or company that deliberately and repeatedly flouts the law and require different handling.

Amendment 65 amends clause 11 to add at the end of page 6, line 5,

“, save if it is a first offence.”,

while amendment 66 inserts:

“A person who has admitted guilt”—

that is, a person who has owned up—

“of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale”.

I think I have explained what those are for.

Clause 11 makes it a criminal offence for a person aged 18 or over to purchase, or attempt to purchase, a vaping or nicotine product on behalf of someone who is under the age of 18—essentially stopping adults from buying vapes for kids. Clearly, buying things for children that are so potentially harmful to them is not the action of a responsible adult.

If a person is charged with this offence, they can defend themselves by saying that they had no reason to suspect that the person they were buying for was under 18. It is not really clear to me when that sort of a situation would occur. If someone is under 18, it should be fairly obvious that they are quite young. Any responsible adult who knew the child would have an idea of how old they were, and any responsible adult who did not know the child would surely guess that there was a risk in buying something for someone who looked young, in case they were under 18 and incriminated themselves. I understand why the defence is there, but I am not really sure how it would be used. The Minister may be able to enlighten us further.

A person found guilty in relation to this offence is liable to a fine up to level 4 on the standard scale, which amounts to £2,500. This clause is very important, because we must stop children getting access to vapes. Popular culture tells us that vapes are very accessible to children. For example, we were all glued to our screens—I know we were in the Johnson household—watching Luke Littler, the recent BBC young sports personality of the year, win the PDC world darts championship. It was fabulous to see someone so young achieve such an amazing feat.

Luke Littler won half a million pounds, which is a wonderful thing for that young gentleman, but he reportedly said that he would celebrate by vaping. Of course, he is actually a 17-year-old young man, despite his great achievements. He is a sports prodigy, a national hero, and a wonderful example to young people of what can be achieved at a young age, but presumably, until he turns 18 very soon, he will need someone else to buy vapes for him. That will be illegal under the new law.

On a more serious note, we know through the various different reports that on county lines, where people are selling drugs, they are often giving vapes to children as a way of enticing them into feeling that they are favoured by those adults. They are using children’s addiction to nicotine and desire for further vapes, and for access to further vapes, as part of a grooming process to get them into dreadful situations with county lines. Clause 11, which prevents children’s access to vaping and nicotine products via a proxy adult, is a very sensible measure that I will support.

[Andrew Gwynne]

I am grateful to the shadow Minister for her support. Clause 11 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in England and Wales. The clause replaces the existing restrictions, which only apply to nicotine vapes.

Similarly, for Northern Ireland, clause 77 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in Northern Ireland. The clause replaces the existing restrictions that only apply to nicotine vapes and extends them to non-nicotine vapes and nicotine products such as nicotine pouches. Anyone convicted of the offence would be liable to a fine of up to £5,000. Both of these clauses contain the defence for those charged that, if they can prove they had no reason to suspect the person they were buying the product for was under 18, that would be considered.

--- Later in debate ---

It is for these reasons that I commend clauses 11 and 77 to the Committee, and ask that the hon. Lady withdraw her amendments.

[Dr Johnson]

Amendments 65, 66, 82 and 83 were specifically there to provoke debate on the coherency of the penalty portfolio across the Bill. The Minister has clarified his position on that. It is very important that we see those who are selling vapes to children or, in the case of clause 11, buying vapes for children, appropriately deterred from doing so or appropriately punished. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12

Vaping and nicotine product vending machines

[Sarah Bool]

I beg to move amendment 96, in clause 12, page 6, line 8, at end insert—

“(1A) The offence set out in subsection (1) does not apply to vending machines that are located within specialised mental health units that provide care for mental health patients.”

--- Later in debate ---

[Gregory Stafford]

I thank my hon. Friend the Member for South Northamptonshire for moving the amendment. One thing we have seen across the debate thus far, and indeed during oral evidence, is that we have been led by the evidence—the Minister has clearly said that. The evidence that my hon. Friend has provided is from medical experts. These are not vape peddlers or people from the industry, or people who want to make a quick buck out of those who are addicted to nicotine. These are health professionals who are trying to ensure that there is a balance between what is absolutely right—we do not want to see people vaping—and the reality of the situation in medical settings, especially in mental health settings, where the ability for patients to have a certain amount of autonomy is often vital to their mental recovery.

My hon. Friend also made the valid point that if we remove smoking and tobacco products from in and around hospitals, which is a suggestion in the Bill that I think I support, we must ensure that those who are addicted—and we accept that it is an addiction—are dealt with appropriately. Obviously, in most regular acute trusts, that would be dealt with through a nicotine patch, but for mental health services, as I said, the requirement for autonomy should sometimes outweigh the functional nature of a nicotine patch. Indeed, my understanding is that nicotine patches do not work for everyone, because some of the addiction is in the holding as well as the imbibing.

I welcome the Minister’s response. As I have said to him on previous amendments, even if he is not happy with the precise wording my hon. Friend the Member for South Northamptonshire has put forward, I hope that he can bring in some kind of exemption on Report, so that the medical professionals who have written to us are satisfied that their concerns have been heard?

[Dr Johnson]

Amendment 96 and clause 12 relate to vaping and nicotine product vending machines. I support the clause; indeed, if one looks at proceedings on the previous, Conservative iteration of the Bill from earlier this year, one will see that new clause 4, which was signed by just under 40 Members proposed a ban on vaping product vending machines, and the lead name was mine. I was concerned that vending machines would be used by children to obtain vaping and nicotine products. That loophole in the law that would make it easy—as we have seen with cigarettes in the past—for youngsters to circumvent the age-restricted product legislation designed to protect them, by allowing them to buy things from a machine that was not checking how old they were. I am therefore clearly supportive of this legislation.

Clause 12 makes it an offence for a person who manages or controls a premises to have a vending machine that sells vaping or nicotine products—

“an automatic machine from which”

vaping or nicotine products “may be bought”. Again, I ask the Minister to look at the principle of machines “from which” these products “may be bought” and to reconsider the wording to ensure that the industry cannot sell products using an app or online platform that can then be collected from a dispensing machine, in the same way as someone might buy something off a retailer and collect it from another retailer or a lock box collection point.

Banning the sale of vaping products, nicotine products and cigarette papers from vending machines would, by virtue of the various clauses in the Bill, including clauses 12 and 17, be a UK-wide provision. That would be beneficial because it would have consistency across the UK in a positive direction. The clause introduces a new offence, as there are currently no restrictions on the use of vaping or nicotine product vending machines in the UK, in the way that there is with tobacco vending machines. This is a new offence, and in my view a welcome one.

Self-service vending machines provide an anonymous, unregulated environment where individuals under the legal age could otherwise purchase vaping or nicotine products without any face-to-face interaction with a retailer, clearly increasing the risk of under-age sales. The offence will come into force six months after Royal Assent, which means that premises that currently contain a vape or nicotine product vending machine will have time to remove it or to stock it with a product that can legitimately be sold to younger people.

The primary rationale behind the restriction on vape vending machines is to reduce vaping rates, particularly among minors and children. The Government’s aims, as I understand them, are to protect young people from the harmful effects of vaping by limiting their access to vaping and nicotine products. Vape or nicotine product vending machines, which may also be used for pouches, are seen as a mechanism to bypass the responsibility of retail staff in ensuring that restrictions are met, contributing to increased sales.

The fine is level 4 on the standard scale, which is similar to that for selling over the counter. That makes sense to me, but I want to ask the Minister who qualifies as a person who manages or controls a premises? If it is a tenanted property, does that mean the landlord or the tenant who has control of the premises? If it is a larger retailer, such as a large supermarket, who controls those premises? Who takes the blame there? Is it the person who was on shift as the supervisor? Is it the store manager? On a more general basis, is it the regional manager or the managing director of the company? Who is responsible for managing and controlling those premises? The Minister needs to provide guidance on that so that people understand their responsibilities and so that, in the event a crime is committed and a vending machine is put in place, fingers are not pointed in every direction, making it impossible to work out whose responsibility and fault it was, such that nobody is held to account for the breach.

The Department of Health and Social Care has produced an impact assessment for the Bill, and paragraph 477 says:

“Regulating vape flavours, packaging, and presentation, as well as point of sale displays, and banning vending machines which sell vapes and nicotine products is expected to reduce the number of people taking up vaping, and therefore it is expected that there will be environmental benefits from reduced litter from vaping products.”

The clause will therefore benefit the health of not just our children but the environment in which they live and grow.

Paragraph 781 of the impact assessment highlights the following information about vending machines and under-age sales:

“A survey conducted by ASH”—

which gave evidence to our Committee last week—

“found that 6.6% of 11–17-year-olds who currently vape used machines as a source of vapes.”

Given that vaping vending machines are not currently that common, that seems quite a high figure. Without a ban and the implementation of the clause, that figure will surely increase.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

I appreciate the point that the hon. Lady is making and those that other Members have made. As I understand it, we already have a law that bans people from purchasing vapes from a customer-managed vending machine. The only vending machines that should be selling vapes are managed by someone else. Can I just clarify that that is the case, because I think there is some confusion about how people are getting these vapes at hospitals and particularly in mental health settings? I have a concern about that because it puts vulnerable people, in a sense, with an addictive product. Can I just clarify that vending machines for vapes are currently not allowed in this country, except where they are not individually customer operated?

[Dr Johnson]

I thank the hon. Member for his intervention. I will come to amendment 96 and the mental health aspect shortly, but I will deal with the clause first, which makes sure that these vending machines are not available. At the moment, one can buy nicotine products in a vending machine where those exist. As I said, the ASH survey showed that 6.6% of 11 to 17-year-olds who currently vape have access to vapes through a vending machine, so this is happening in the UK already. The hon. Gentleman will have heard me say earlier that, until this Bill passes, it is not illegal to sell nicotine products to children. Some responsible retailers have a voluntary scheme for not selling to under-18s, but it is not a legal requirement. Some irresponsible sellers do sell vapes to children.

Paragraph 782 of the impact assessment says:

“There is limited evidence presented on the number and locations of vape vending machines, however it is suggested by online retailers that they are currently predominantly placed in locations such as nightclubs, bars and pubs. It is anticipated that”

without this legislation

“the market will develop further and vape vending machines will become more prevalent in other locations such as supermarkets, train/bus stations and other locations accessible to under-18s.”

In my mind’s eye, I remember recently seeing a vape in a vending machine alongside sweets; I just cannot quite remember where it was, but it was certainly somewhere that was easily accessible to people.

The aim of the clause is to protect children and to ensure that vending machines—commonly found dispensing food and drink in child-friendly establishments such as canteens and leisure centres, and easily used by young people—are not available. The machines protect anon—anonymity; I might have to put my teeth in, Sir Mark—

[Andrew Gwynne]

It is catching!

--- Later in debate ---

[Dr Johnson]

It is catching—it is the time of day, I think.

Paragraph 787 of the impact assessment says:

“We know that one of the main reasons children take up vaping is due to peer pressure…It is therefore worth considering that instances of vape vending machines in easily accessible areas might be an enabler for those who would not otherwise seek out a vape or who would be deterred by having to speak to an adult”.

Children would have to seek out an adult to make a purchase, because they have to go to a till or counter to get the vapes. Under the new legislation, that adult would look for ID, while a vending machine would provide a circumnavigation, so this is a sensible clause.

Most of us recognise that the vending machines currently selling disposable vapes have a finite lifetime, because this Government have banned them in the future under a statutory instrument in the competence of the Department for Environment, Food and Rural Affairs. However, British American Tobacco has already stated that it is working on a product to sell the Velo brand—one of its nicotine pouches—via “age-gated vending machines” and is hiring for the product. Again, that is taken from the impact assessment.

That further highlights the need for a blanket ban on vending machines, particularly given that, as things stand, they are clearly advertising tools for vaping. Wherever the machines are placed, they are visible to the consumer, and the consumer needs to know what is in the vending machine in order to choose what to buy. Given the regulations appearing later in the Bill, we will be looking at the display of such products. It therefore seems nonsensical to have restrictions on the display of products, but to allow vending machines, which allow the display of products, in contravention of that. One aim of the Bill is to ensure that non-smokers do not begin vaping and get hooked on nicotine. These provisions strengthen that through age verification and on the marketing front.

I will now deal with some of the issues to do with mental health hospitals. My hon. Friend the Member for South Northamptonshire said that the 2,400 vends were evidence of 2,400 positive choices. I am not sure that that is necessarily the case. The evidence is that 2,400 vapes were bought, but not that those individuals had ever smoked. We do not know whether the vending machines are being used by people who smoke or people who do not—[Interruption.] My hon. Friend the Member for Windsor comments from a sedentary position; if he wants to intervene, he is welcome to do so. A proportion of people out there smoke, and a proportion do not.

[Sadik Al-Hassan (North Somerset) (Lab)]

It is a pleasure to serve under your chairship, Sir Mark. Based on the behaviour of vape companies now, which is similar to that of tobacco companies previously, this proposal would allow further expansion of vending machines and further display on vending machines in more and more places. Is that the point that the hon. Member is making?

[Dr Johnson]

In essence, in relation to clause 12, yes. I do not think that vending machines including tobacco and nicotine products or vapes are a good idea, and I moved a new clause for inclusion in the previous Bill because a ban on nicotine and vaping products in vending machines had not been included at the outset. Without such a measure, we will see an expansion of vending machines as a way of selling products to children and getting children addicted. It will be done as a way of making products more available to adults, but its effect will be that the products are more available to children. I do not want to see such products available to children, because they are clearly harmful for them. All the medical evidence we have had states that clearly.

With regard to individuals in mental health hospitals, some may be there as voluntary patients, and some under a mental health section. When someone’s liberty has been taken from them because they are being treated for a mental health condition, we need to be careful that we are not restricting them in other ways in which we would not restrict other people. That is a fair point to make.

We also have to be mindful of the staff. As we go through the Bill, the Minister will rightly be looking at exposure to vaping inside hospitals and at extending the tobacco regulations that limit smoking in public indoor places to cover vaping in indoor public spaces. Indeed, he and you, Sir Roger, will have seen the signs placed in the Tea Room by the Speaker, who rightly wants to see that we do not have vaping there. The public do not want vaping in their tea rooms or in the public domain either, so that is the right thing to do. We need to consider that there are staff and other patients in mental health hospitals who may not wish to vape and should not be inadvertently and unnecessarily exposed to vaping products.

I do not support the idea that 2,400 vends means that this is a positive choice. For some of these people, vaping may have been a positive change from smoking, but for others it may have been a decision to vape.

[Sarah Bool]

I appreciate that; those were the words of the NHS trusts themselves when they talked about positive decisions. We cannot always be sure exactly why someone made that decision, but we have to hope in the first instance that that move away from smoking would turn into vaping and, ultimately, into a smoke-free generation.

I am minded to tighten the wording of my amendment on Report to ensure that the vending machines are in those mental health units for the purpose of facilitating smoke-free policies and smoking cessation, because I do not necessarily want nurses and those working in those units to be exposed to any unnecessary products. When we are dealing with addiction, we all appreciate how difficult it is, and I want to ensure that a process is in place that means that we deal with both the mental health issues patients are dealing with and the addiction in a suitable and balanced fashion.

[Dr Johnson]

I know my hon. Friend’s heart is in a good place when she thinks about how we can protect individual mental health patients who also have an addiction to nicotine. She said that having no vapes on the hospital site could lead to patients taking up smoking, but there are of course no cigarettes on the hospital site either. I do not support the idea that the removal of one product will automatically lead to the use of another unavailable product.

If a member of the Committee, for example, wanted to leave the room now and go and get some vapes, they would need to leave the House, go and find a shop, and purchase them, and the same is true of an average patient: they would have to leave their home, find a shop, buy their vapes and come home again. The availability of a vaping vending machine on a ward in a mental health hospital would make vapes much more available to an individual and much more proximal than they would be under normal circumstances, which may lead to a greater consumption of nicotine than would be the case if the vapes had to be accessed elsewhere.

As we have mentioned repeatedly, nicotine is a very addictive drug, and I will not reiterate that beyond saying that if one is in a hospital unit and unable to leave because one is on a section, and one is used to using nicotine, the cravings would be extremely unpleasant and the withdrawal could be very nasty indeed. With that in mind, we wish to ensure that those individuals are cared for, and I know that the Minister wants to ensure that they are cared for too, but I remind the Committee that other nicotine replacements are available.

Several treatments are available from shops and pharmacies to help to beat the addiction, and those are available on prescription to individuals currently residing in a mental health unit, voluntarily or otherwise. Essentially, they are nicotine replacement therapies, by which I mean a proper medicine, as opposed to a consumer product, that provides somebody with a low level of nicotine without the tar, carbon monoxide and other poisonous chemicals present in tobacco smoke. They help to reduce unpleasant withdrawal effects, such as bad moods and cravings, and may affect mental health treatment too. They can be bought from pharmacies and shops, but a doctor can prescribe them and NHS stop-smoking services can provide them, and they are available in a whole range of forms. There are skin patches that provide a slower release, chewing gum and little inhalators that look like a small plastic cigarette. There are tablets, oral strips, lozenges, and nasal and mouth sprays.

There is a huge variety of different nicotine replacement therapies. Some, such as the inhalators, gums and sprays, act quickly to provide nicotine, and some, such as the patches, release nicotine slowly. The treatment depends on the stage of craving and the stage of giving up that somebody is at, and on what is most suitable for them. Sometimes patients find that the best way to use nicotine replacement therapy is to have a low-dose patch that is worn all the time, with top-ups from a gum, inhalator or nasal spray if they have particular cravings. Treatment with such nicotine replacement therapy usually lasts eight to 12 weeks before the dose is reduced and eventually stopped.

--- Later in debate ---

[Jack Rankin]

I do not think that nicotine products are attractive to children in any way, shape or form today. My concern is that, as the Government are seeking to stop children using them by restricting them in vending machines—I do not think they should be using them—

[Dr Johnson]

May I clarify the point that my hon. Friend is making? When he says that he does not think nicotine products are attractive to children, does he mean the medical nicotine replacement therapy products, as opposed to other nicotine products such as nicotine pouches or vapes?

--- Later in debate ---

[Jack Rankin]

I do not think I can talk to that point, but I thank the hon. Gentleman for making it.

We have to find a balance. The Government can use their majority in the House to cast aside my hon. Friend’s amendment, but it seems to me that it is in line with the principle of the Bill, so it is a sensible thing to do.

[Dr Johnson]

I understand that my hon. Friend thinks that the amendment is sensible, but Dame Andrea Leadsom, the public health Minister in the previous Government, asked Mark Rowland, the chief executive of the Mental Health Foundation, the “chicken-and-egg question”, as she put it:

“Does smoking make you depressed, does depression cause you to smoke or is it both?”

He said:

“it is difficult to disaggregate exactly for many people, but we know that both are a real issue. We talk about this cycle of smoking increasing the risk of poor mental health and poor mental health increasing the chances of smoking and the number of cigarettes someone smokes. People with mental health problems smoke far more, and that addiction then exacerbates psychiatric symptoms. Those psychiatric symptoms also then lead to increased poverty and increased chances of being unemployed, and that leads to poorer mental health. It is a complex picture, but we are really starting to see the causal drivers of mental ill health.” ––[Official Report, Tobacco and Vapes Public Bill Committee, 1 May 2024; c. 116, Q179.]

Does my hon. Friend agree that one should not say that those in mental health hospitals need access to vapes or nicotine in the form of pouches from vending machines to ease their mental health? In actual fact, it may do quite the opposite.

[Jack Rankin]

I had not heard that remark, but I thank my hon. Friend for putting it on the record. To add to that theme, I would make the point that these things are multifaceted. The point that my hon. Friend the Member for South Northamptonshire, who is the successor to Dame Andrea, was making is that people have quite a lot to be getting on with, so they do not need this added stress.

[Dr Johnson]

Does my hon. Friend see it as an added stress or an added opportunity to add in-patient support to quit smoking to further benefit the individual’s mental and physical health?

[Jack Rankin]

Perhaps it is an added thing that doctors in mental healthcare can try to address, but my hon. Friend the Member for South Northamptonshire read out a letter from someone at the coalface, who takes the opposite approach from that of the shadow Minister.

--- Later in debate ---

[Dr Johnson]

In the provisional grouping provided by the Clerk, you have clauses 13, 14, 61 and 79 together. Would you like to—

[The Chair]

Order. I do beg your pardon; I am wrong. I am never wrong! But this time I am. I call the Minister to speak first.

[The Chair]

Let me just explain: the clause stand part is Government business, so it is absolutely correct that the Minister is entitled to move it. He is allowed to move it formally if he chooses to do so. He does not have to speak to it, but by moving it formally, he can then open the debate and come back later if he so chooses. He has chosen to take the path he has gone down and he was absolutely right to do so.

[Dr Johnson]

Thank you, Sir Roger. I am grateful for your guidance as Chair on the order of doing things. It has been, at times, quite confusing.

Clauses 13, 14, 61 and 79 regulate the display of products in England, Wales, Scotland and Northern Ireland. It does not take much to realise why that is necessary. Simply take a drive down a high street in any small town across the country, and one will come across a shop with an entire front window blocked out with pictures of sweets, other confectionery and chocolate, usually an energy drink or two thrown in, and a whole host of brightly-coloured vaping devices. The clear message is that these are fun and exciting products—not stop-smoking devices, but recreational products—and is clearly designed to entice children into purchasing them.

I had cause to go to a major service station on the A1-M25 junction, and as I came out of the bathroom I noticed that, at the eye level of about a six-year-old, there was a whole pile of coloured vapes in a shop front. Going into a major newsagent to purchase a newspaper, one will also find a whole load of pictures behind the counter. I have even seen electronic video displays advertising a vaping product in WHSmith—I think it was a Lost Mary—so one cannot get away from the advertising of those products even if one wishes to. It is clearly necessary for the display of those products within stores to be regulated to ensure that children are not enticed—the industry would say inadvertently, while others would suggest very deliberately—into wanting to buy them.

Clause 13 provides the Secretary of State with powers to regulate the display of tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. It also regulates their prices. I wonder if the Minister could comment on what that means, and how the prices of all those products will come under some sort of Government control. Will the Government fix the prices and therefore the profit, or will they apply additional taxation to the product—something that they seem to like to do, although it would not necessarily be as unwelcome in this case as some of the other taxes they have applied recently—so that they create an overall price? How does the Minister intend this price fixing, as it were, to work?

Clause 13 also gives the capacity to regulate the display of empty retail packaging or anything else that represents the product, whether that be putting up a video display or large versions of the products at an entrance, so that the products can be kept away from children. Under the Tobacco Advertising and Promotion Act 2002 and regulations made under it, there are already restrictions on the display in the course of business of tobacco products and pricing, but not specifically nicotine and vaping products. Given all we have heard about the addictive nature of nicotine, the enticement of children into taking such products, and the harm they may cause children particularly in adolescence, this is a welcome change.

Clause 13(6) confirms that before making regulations, the Secretary of State must consult who he or she considers it appropriate to consult. I am interested to understand whether the Minister believes that such a consultation should include the tobacco industry and/or the vaping and nicotine product industry, whether that be medical or otherwise, and whether he sees a distinction between the two.

Clause 13 creates an offence for failure to comply with the regulations, and anyone convicted of an offence under this clause on indictment can be subject to imprisonment of up to two years, or a fine, or both. If they are convicted of a slightly lesser offence on summary conviction, they can be subject to imprisonment for a term not exceeding a general limit in a magistrates court, or a fine, or both.

I refer the Minister to my previous remark that the general limit in a magistrates court is apparently going to double after the Lord Chancellor’s statement in October. As such, is the Minister content to have a fluctuating limit or would he prefer a fixed one? Perhaps that is something to consider before Report. Clearly, deliberately advertising vapes in a way that may be attractive to children requires a reasonably stiff penalty.

Under clause 13(1), the legislation explicitly allows for the regulation of physical displays of these products, including empty packaging and pricing information, which are often used to draw attention to them. Subsection (2) defines the “relevant products” pretty comprehensively, encompassing not just tobacco and vaping items but accessories such as cigarette papers and herbal smoking products. The broad definition ensures that the regulations cover a wide array of potentially harmful products. Subsection (3) further strengthens that by extending the rules to include representations of these products, such as promotional materials or images that might signify them at the point of sale, which is again welcome.

Currently, vaping products are often displayed prominently in retail settings, frequently at checkout counters or in bright, attention-grabbing displays. That placement encourages impulse purchases and can make those products more appealing to young people. Unlike tobacco products, which have strict display restrictions, vaping and nicotine products remain accessible and visible in shops, and the standard packaging laws for cigarettes do not apply, for example, to their shape and colour. Clause 13 aims to address that disparity by introducing measures to regulate the visibility and presentation of the products.

The collaborative approach to the consultation will hopefully strike the right balance between public health objectives and the interests of businesses, but I urge the Minister to give further information on how we can strike that balance while maintaining that the important thing is to protect the health of the public, particularly children, from vaping products. Both nicotine and non-nicotine vaping products, unlike tobacco, are currently allowed to be displayed at the point of sale in shops on countertops, in eye-catching displays on the shop floor, and in the windows. It is somewhat ironic that sweeties and chocolate have been banned at the till because of the pester power of children, only to be replaced in some shops by vapes. I suggest that, if any parent were given the choice, they would rather their children were having sweets than vapes, which are clearly addictive and much more harmful. There is much to be considered on the nature of unintended consequences, as well as the nature of the industry with which we are dealing.

[Jack Rankin]

My hon. Friend is making an eloquent case that we should not be advertising vapes, or their pricing and products, to children. What she is not doing is making a case for banning the display of products or prices of vapes to adults. Does she think it is incongruous to treat tobacco products and vaping products in the same way in this clause?

--- Later in debate ---

[Dr Johnson]

I thank my hon. Friend for his intervention. Part of me wants to say, “Well, what do you do when the child goes into the newsagent? Put a blindfold on them?” If the displays are visible to adults, they will be visible to the children who are walking beside them. It would be helpful if my hon. Friend has any ideas on how we can ensure that, when walking into an average newsagent, children cannot see something that grown-ups can.

[Jack Rankin]

rose—

[Dr Johnson]

If my hon. Friend has a suggestion, I shall let him back in.

[Jack Rankin]

I suggest to my hon. Friend that advertising a vape with Mickey Mouse is obviously aimed at a child, but it would be very much aimed at an adult, and not attractive to a child at all, to advertise a vape with, “This is what smoking 40 cigarettes a day costs you over a year. This is what our product costs. This is what you would save.” That would very much be in line with the aims of a smoke-free generation.

[Dr Johnson]

I thank my hon. Friend for his intervention, which goes to the principle of advertising, and whether there needs to be an exemption for medical advertising of vaping as a stop smoking tool by health professionals, for example in doctors’ surgeries, where it may also be visible to child patients. That is not really the aim of clauses 13 and 14, which focus on the display of products in shops. They are less about how the products are advertised and more about where they are displayed and how visible they are to someone shopping.

To some extent, my hon. Friend has a point about how we convey the message to smokers that vaping devices are items they can use to help them quit smoking—a message given by the chief medical officer—and about the distinction between that advertising and the sort of advertising that sees sports stadiums and sports shirts emblazoned with the brands of vaping companies, such that young children watching their heroes on the pitch, playing football or rugby, see vaping as a good thing. We will come to that later, but it is distinctly different from clauses 13 and 14.

At the moment, the legislation most relevant to where products are displayed is probably the Tobacco and Related Products Regulations 2016, known as the TRPR, which brought EU tobacco products directive 2014/40 into law. The regulations, which are now in the form of retained EU law, set standards for nicotine vapes, including limits on nicotine strength, bottle and tank sizes, and rules on packaging and advertising. But when it comes to the display of vape products, there are no specific regulations. They are openly displayed in stores, in large and small shops, both household names and individual retail outlets. They are also displayed in outlets that we might not expect. I noticed that the place I took my son for a haircut was selling both haircuts and vapes, and that a shop in the local town that repairs mobile phones and sells second-hand devices also sells vapes. The number of places that sell vapes and display them in their shop window is remarkable.

The Department of Health and Social Care has expressed concern about the lack of regulation, warning that children can easily see and pick up vapes due to them being displayed within aisles close to sweets, and on accessible shelves and display towers on the shop floor close to children’s eye level. A particular concern to me—and no doubt to many others in the Committee—is the visual similarity between a vape display and a shelf of sweets. Vapes are often displayed in an array of eye-catching colours. It is not uncommon to see them in a rainbow, with a range of sweet and fruity flavours on offer, including specific sweet brand names like Skittles, Starburst and Sour Patch Kids. The way they are sometimes presented as a safe alternative to smoking—which we understand that they are for smokers—can mislead consumers into thinking they are risk free, which is concerning considering that they contain nicotine and other harmful chemicals. I have also noticed a fashion for an increasing number of products to be advertised as pure, fresh, natural and organic, potentially to give the impression that they are less damaging than they are.

Finally, I have not seen this raised before, but I would like the Minister to consider that the fact that these highly addictive products are so easily accessible on the shop floor and at children’s height makes it easy for children to pick them up and walk out with them, particularly if they want to avoid being asked for ID by the shopkeeper. Putting them behind the counter where they are less accessible to children may reduce that temptation.

Clauses 14, 61 and 79 relate to similar regulations in Wales, Northern Ireland and Scotland. I do not intend to go through them and repeat my arguments.

[Andrew Gwynne]

I reassure the shadow Minister that the measures in clauses 13 and 14 will regulate only the display of pricing, not the actual prices. We are not yet in the realms of fixing prices for products—I hope that reassures the hon. Member for Windsor, too.

On engagement with the tobacco industry and the vape industry, the UK is party to the World Health Organisation framework convention on tobacco control, so we have an obligation to protect the development of public health policy from the vested interests of the tobacco industry. We take that commitment incredibly seriously and, in line with the requirements of article 5.3 of the FCTC, we summarise the views of respondents with disclosed links to the tobacco industry when responding to consultations.

With respect to the display of vapes, we know—and the shadow Minister has expressed very powerfully—that research on vape packaging has shown that reduced brand imagery can decrease the appeal to young people who have not previously smoked or vaped, without reducing the appeal of vapes to adult smokers. That is why I believe the measures in clauses 13 and 14 are appropriate and measured, and will have the outcomes that both the shadow Minister and those of us on the Government side of the Committee desire. I commend the clauses to the Committee.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.

Clause 15

Free distribution and discount of products

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

--- Later in debate ---

[Jack Rankin]

It will not surprise my hon. Friend that I do not agree with him. The last thing we need is more people going through our GP surgeries. We should allow legitimate use of these discounts in a public health manner. Some of the problems I have with the structure of some of the clauses from here on in is that they give quite sweeping regulatory power to Ministers, perhaps through secondary legislation. The Minister might say that the Government do not necessarily want to restrict those things, but the lack of certainty may result in a chilling of investment by legitimate vaping companies. If we want genuinely to move to a smoke-free generation, I do not think that is something we should encourage; we should be advocating such responsible investment.

[Dr Johnson]

My hon. Friend is talking about the availability and visibility of products, and my hon. Friend the Member for Farnham and Bordon talked about the availability of vaping products as medical products. However, the Committee heard evidence from the MHRA that there are no medically approved vaping devices currently registered in the United Kingdom. While it continues to encourage vaping companies to come forward with a vaping product for regulation and medical assessment, that so far has not come to fruition.

[Jack Rankin]

I take the shadow Minister’s point, but I think the Minister said in summing up the clause 10 stand part debate that while vaping potentially was not harm-free, given its harm compared with cigarettes, that was something that the Government would want to see.

Clause 15 does not say that there should not be discounts on products for children or products for recreational use; it leaves the scope quite broad. I think the Government have got that wrong, and that it might have a direct adverse effect on the kinds of partnerships I described. I saw some polling recently that showed that the general public thought vaping was as dangerous as smoking, and this is the kind of messaging that gives that wrong impression, which is against the Government’s stated aim.

Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)

Tobacco and Vapes Bill (Seventh sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Jack Rankin (Windsor) (Con)]

I made my substantive points in the previous sitting, so I just want to summarise my position and conclude. Clauses 15, 62 and 80 concern the free distribution and discount of products. I support the Government wholeheartedly on tobacco products, but I tried to make the point that I believed there was a legitimate and responsible avenue for vaping and nicotine products to offer such discounts, particularly in the example that I gave, where a responsible vaping company was in partnership with the NHS to help to achieve the aim of the Bill of a smoke-free generation. I cannot support clauses 15, 62 and 80 in their current form and intend to vote against their standing part of the Bill.

[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.

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[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.

[Dr Johnson]

I put on the record my good wishes for a happy birthday to the hon. Member for Dartford. He shares a birthday with both my daughter and my son’s science teacher, and I wish them all a happy birthday. While fully enjoying and engaging with this very important piece of legislation, I understand his urge to celebrate his birthday later, and I hope he will be able to do so.

This is quite a big group of clauses. They provide for the licensing regime for retail sales of various products, tobacco products and others in England and are quite complex.

Clause 16 provides the Secretary of State with the power to make regulations on the granting of personal and premises licences. It establishes a licensing system for the sale, storage, exposure and supply of tobacco, vaping and nicotine products in England and outlines the requirement for individuals and businesses involved in the retail of those products to hold specific licences.

The clause can essentially be broken down as follows. Subsection (1) establishes that individuals in England are prohibited from selling, displaying for sale or possessing certain relevant products, such as tobacco, vaping and nicotine products, unless they have a valid personal licence. That ensures that all transactions are regulated and aims to control access, ensure compliance with legal standards and promote accountability among retailers in handling those products.

Clause 16 also effectively creates a licensing framework to monitor and enforce sale practices. That is important, because we have heard evidence—and seen for ourselves when we walk down the street—that virtually every shop, whatever it sells otherwise, sells vapes. The clause will help to reduce the number of outlets selling those products and ensure that they are being sold responsibly and only to those above the age of sale.

Subsection (2) mandates that premises cannot be used for certain activities involving the relevant products, including storing, displaying or supplying them without a valid premises licence. Again, that ensures that the locations themselves are regulated by requiring a licence, which allows for oversight of operations, ensures compliance with health and safety and legal standards and prevents and reduces unauthorised and illicit sales. That will help to enforce accountability and the responsible handling of regulated goods.

Subsection (3) allows the Secretary of State to create by regulations exemptions to subsections (1) and (2) if he or she wishes to do so. Subsection (4) requires the Secretary of State to create regulations governing the granting of both personal and premises licences. That provision is essential to establish clear criteria and procedures for individuals and businesses seeking licences to sell, store or display relevant products. Subsection (4) will ensure that those activities are conducted responsibly and legally, aligning public safety standards and allowing for consistent oversight, as I said. It ensures that there is a thorough process in considering input from those who are directly affected by or have expertise in the matter.

Subsection (7) specifies that regulations under the clause are subject to the affirmative resolution procedure, which we have talked about before. Subsection (8) defines key terms, such as “personal licence”, “premises licence” and “relevant products”, ensuring that there is clarity in the interpretation and application of the provisions so that individuals subject to them understand what their duties involve.

Schedule 1 concerns the retail licensing scheme for England only. To tackle the illicit market and protect legitimate businesses, the Bill provides powers to introduce a new retail licensing scheme in England for tobacco, vapes and nicotine products. The schedule details the regulations for a retail licensing scheme and explains the regulations that the Secretary of State can implement under the powers granted in clause 16, which mandate that retail sales of those products in England must be licensed.

There clearly needs to be a licensing authority, and the regulations will designate a local authority as the responsible body for granting licences to retailers that wish to sell tobacco, vaping and nicotine products. With regard to yesterday’s statement on the changes to some local authorities, it is important that the provisions in the schedule work, even in the event that the local authorities change as part of that process.

The regulations on licensing conditions can prevent the granting of licences in certain areas—for example, near schools—limit the number of licences in specific areas and require premises to be inspected before a licence is granted. The licensing authority can charge a fee to cover the cost of administering and enforcing a licensing scheme, and a portion of those fees may be allocated to other bodies involved in the enforcement process, especially if licensing and enforcement are handled by different authorities. The regulations will also do other sensible things; they mention the licence duration, public disclosure and how to renew and appeal any licence that has been either granted or refused. The Secretary of State will be able to provide guidance to the local authorities providing the licensing duty on how to carry out their duties in that respect.

The impact assessment on the Bill, which was published by the Department for Health and Social Care in November 2024, notes:

“A retail licensing scheme for the sale of tobacco, vaping and nicotine products would support enforcement (and in turn, public health) by:

a) strengthening retailers’ adherence to existing regulations”

and by

“b) providing the opportunity to introduce further restrictions…in the interest of public health, for example conditions relating to retail density.”

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[Dr Johnson]

I am afraid I do not think the schedule says that, so I do not know the answer. Presumably, the Minister will know the answer—or his civil servants will—and will be able to provide it in his summing up, so I shall move on.

Before the notice of intent is given, the final notice can be withdrawn or amended to reduce the penalty amount at any time by written notice. The person has a right to appeal to the magistrates court against the decision to impose a financial penalty or against the amount of the penalty. To go back to the point of my hon. Friend the Member for Farnham and Bordon, there is an opportunity to appeal the amount if one wishes to do so.

The schedule will enable an independent decision and establishes the appeals procedure to be followed. If a person fails to pay either the whole or a part of the financial penalty within the given period, the unpaid amount may be recovered as if it were payable under a county court order—so there is pretty stiff insurance that it will get paid. Any proceeds received from financial penalties must be returned to the Consolidated Fund once enforcement costs to investigate an issued penalty have been deducted by the local weights and measures authority.

Clause 19 relates to the retail licensing for Wales. As in clause 16, subsection (1) establishes that individuals must hold a personal licence to engage in activities such as selling relevant products. Subsection (2) extends those licensing requirements to ensure that the premises is licensed for activities involving relevant products. In line with clause 16, subsection (3) gives Welsh Ministers, in this case, the authority to create exceptions to the licensing regulations and requirements set out in subsections (1) and (2). Subsection (4) mandates that Welsh Ministers develop the regulations for establishment and operation of personal and premises licences.

[Gregory Stafford]

I am not clear what sort of exceptions we might be talking about in clauses 16 and 19 being made by Westminster Ministers or Welsh Government Ministers—and I assume there will be a corollary in the other devolved nations when we get to them.

[Dr Johnson]

I am not clear about that either, but I am sure the Minister will elucidate what exceptions he sees and when someone or somewhere would be used for selling such products without a licence.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

When it comes to alcohol licensing, exceptions for members’ clubs are, of course, already in statute, so we do have exceptions in other licensing regimes. Does the hon. Lady agree that the online sale of vapes, which constitutes a significant market, might also be an exception with regard to brick and mortar premises? The exceptions covered by the Bill might relate to the type of sale and the area of sale.

[Dr Johnson]

The hon. Gentleman makes a good point. It is important, however, that those who are selling online and those who are selling in shops have to have a licence to do so. I hope that the Minister does not intend to exempt online retailers from the need to have a licence to sell such products—he is shaking his head, so I suggest that is not the case, which is good.

One reason for tabling new clause 10 was to highlight the importance of ensuring that online retailers are held to the same standards as those real-world retailers. We have talked previously about ensuring that online apps and online sales cannot be used as a get-around—similar to vending machines, for example. It is important to ensure that the online world is not used to get around the Government’s intention to prevent smoking and the purchase of smoking, vaping and nicotine products by under-age individuals.

To return to clause 19, subsection (5) requires Welsh Ministers to consult with relevant stakeholders before making regulations, which is sensible. Subsection (7) specifies that the regulations are subject to the affirmative resolution procedure, which for Wales means that the proposed regulations must be formally approved by the Senedd before becoming law, increasing democratic accountability and providing an extra layer of scrutiny. Respect for Welsh devolution, as we talked about in the last session, is therefore included within the Bill.

Schedule 3 provides for retail licensing schemes in Wales, making provision regarding the granting of a licence in Wales, including provisions meaning that a licensing authority cannot grant a licence to premises in a particular area, for example, in proximity to a school, and limiting the number of licences within a particular area. We heard previously that specifying that licensed premises should not be near a school could cause difficulties in some rural areas where there may be only one shop in that village and no shops for many miles around it. That is one of the reasons decisions are made locally, because the local individuals providing those licences know the local circumstances, and that would need to be done cautiously. The regulations will also specify the duration of the licence, how it is enforced and the appeals process.

Clause 20 relates to offences in connection with licences in Wales and sets out how offences are committed, along with the penalties that may be put in place. I will not go through that in any more detail.

Clause 21 talks about the financial penalties in Wales. We have talked previously about how it is a matter for the devolved nations to decide how high those penalties should be. Subsection (1) grants the local weights and measures authorities in Wales the powers to impose those financial penalties relating to a breach of conditions attached to a personal or premises licence.

Schedule 4 outlines the procedure for local authorities in Wales, such as trading standards, to impose financial penalties for breaching licence conditions. Again, before imposing a penalty, authorities must issue a notice of intent and allow time for it to be challenged. If a penalty is imposed, a final notice is issued, which can be withdrawn or reduced, and the person can appeal the decision or the penalty amount to the magistrates court. Unpaid penalties can be recovered as if they were payable under an order of the county court and proceeds, after enforcement costs, are returned to the Welsh Consolidated Fund.

Clause 22 is the repeal of register of retailers of tobacco and nicotine products in Wales. It proposes to repeal chapter 2 in part 3 of the Public Health (Wales) Act 2017, which established a regulatory framework for retailers of tobacco and nicotine products through a centralised registration system. Clearly, if this Bill passes, that provision will no longer be required because the clauses in the Bill provide for new provisions. Clause 22 repeals that chapter of the 2017 Act so that it can be replaced, which is sensible.

[Gregory Stafford]

I completely understand the practical need to repeal a piece of legislation that is no longer workable under the new Bill, but can my hon. Friend assure me that everything in the previous legislation that is appropriate has been transferred into the current legislation, so that nothing has fallen through the cracks? If she is not an expert in Welsh legislation, perhaps the Minister could help when he responds.

[Dr Johnson]

Chapter 2 of part 3 of the Public Health (Wales) Act 2017, which is being repealed by the Bill, establishes a regulatory framework for retailers of tobacco and nicotine products through a centralised registration system. That Act requires the creation and maintenance of a register for all retailers of tobacco, cigarette papers and nicotine products. That register has to include detailed information about each registrant, such as their name, residential or business address, and the location of the premises. It also specifies whether the retailer sells tobacco, nicotine products or both. For mobile and temporary premises, such as stalls, tents or vehicles, the register must record the relevant local authorities where the business operates, if there is more than one.

Welsh Ministers may be designated as the authority responsible for overseeing the register, with additional details about registration requirements subject to regulations. To register, businesses must apply to the registration authority and provide comprehensive details about their operations, including the type of products sold and the methods of sale, such as online transactions or delivery services. Applications must comply with a prescribed format and a fee may be required. The authority must grant registration unless legal restrictions, such as restricted premises or sale orders, apply. Approved applications result in updates to the register.

Registered retailers are obligated to notify the authority of significant changes, such as modifications to business details, the cessation of operations at specific locations or the discontinuation of mobile operations in a local authority area. Notifications must be submitted within 28 days and the registration authority is responsible for revising the register to reflect the changes or correct any inaccuracies. Before amending or removing a registrant’s entry, the authority must provide notice to explain the reasons and allow time for the registrant to respond.

The chapter of the Act that is being repealed includes provisions to enhance the regulation of tobacco and nicotine businesses by ensuring access to the retailers register and enforcing compliance. The registration authority is required to publish a list identifying registered businesses and their premises. For businesses operating from moveable structures, such as stalls or vehicles, the list must specify the local authorities where operations occur, instead of physical addresses.

Local authorities are granted full access to information on the register relevant to the premises within their jurisdiction to enable effective monitoring. Certain premises may be exempt from the Act’s provisions, as specified in regulations. The application of the provisions to moveable premises may be modified if deemed necessary by Welsh Ministers.

Conducting a tobacco or nicotine business without registration is an offence, as is operating at locations not listed in the register. Exceptions apply to moveable premises, but failing to notify the authority of a change in business operations without reasonable cause also constitutes an offence. Offenders face fines proportional to the severity of the breach.

To enforce compliance, local authorities may appoint authorised officers and grant them powers to investigate potential offences. Officers may enter premises at reasonable times, provided that they suspect violations and need access for verification. Entry into dwellings for such a purpose requires a warrant issued by a justice of the peace, which remains valid for 28 days. Warrants may also be granted for other premises under specific conditions, such as denial of access or risk of compromising an investigation.

Authorised officers have extensive inspection powers, including examining premises, taking samples and copying documents. They may also secure properties for analysis where necessary. Obstructing officers or failing to co-operate with a reasonable requirement is an offence. Fixed-penalty notices can be issued for minor breaches, offering offenders an opportunity to avoid prosecution through prompt payment. Those measures, in the chapter of the Act that is being repealed, collectively aim to uphold public health standards and ensure the responsible sale of tobacco and nicotine products.

[Gregory Stafford]

That is very helpful.

[Dr Johnson]

Given that is what the Act does, it will be important for the Minister to consider the timing of the repeal. There are comprehensive powers under those provisions, and it will be important to ensure that Welsh Ministers are given ample opportunity and time to put in place new provisions to replace them, before the measures in this Bill come into force.

Could the Minister explain when the changeover date is, and whether he has spoken to Welsh Ministers to ensure that there is adequate time for those provisions to be put in place? He might also respond to the question of my hon. Friend the Member for Farnham and Bordon about whether there is any restriction on replacing any aspects of the current Welsh legislation with the new legislation that we are discussing.

Clause 85 prohibits retail sales of tobacco products without a licence in Northern Ireland. To apply the measures that we have previously discussed to Northern Ireland, it inserts new measures after section 4 of the Tobacco Retailers Act (Northern Ireland) 2014 that will prohibit the sale of tobacco and nicotine-related products without a licence. That brings Northern Ireland legislation in line with the proposed UK legislation that we have just been discussing.

Proposed new section 4A of the 2014 Act introduces a clear prohibition on the retail sale of tobacco and nicotine-related products without appropriate licences. Under this section, individuals are not permitted to engage in the sale, exposure for sale or possession of relevant products unless they hold a personal licence. That licence is required for anyone involved in retail activities such as selling, displaying or possessing tobacco, vaping products, herbal smoking products or nicotine products. The personal licence must be granted by the licensing authority and the individual must comply with the conditions outlined in the licence.

The use of premises for activities such as storing relevant products, exposing them for sale or supplying them to customers is prohibited unless a premises licence is obtained. That ensures that the location used for the sale of these products is also licensed and adheres to the prescribed standards. The premises licence is granted by the licensing authority and outlines the specific conditions under which the premises can operate.

There is provision for regulations to create exceptions to those prohibitions in certain circumstances. The Department responsible for legislation is required to consult relevant stakeholders before making regulations relating to the granting of personal premises licences, which is of course sensible. Those regulations would ensure that the licensing system remains flexible and adaptable to the needs of businesses and public health objectives.

Proposed new section 4B of the 2014 Act establishes the penalties for breaching the new licensing requirements. If a business or individual operates without the necessary personal or premises licence, they commit an offence under that section. In line with England and Wales, providing false and misleading information in an application for a licence is also an offence. If someone knowingly submits incorrect information, they can face legal consequences, with a fine on summary conviction of up to level 5 on the standard scale. The section aims to ensure the integrity of the licensing process by holding individuals and businesses accountable for providing truthful information.

The court has the power to order the forfeiture and destruction of relevant products involved in an offence and of any containers used to store them. That gives the court authority to remove illegal products from circulation and deal with them in a manner it deems appropriate, thereby enforcing compliance with the new regulations.

Proposed new section 4C of the 2014 Act allows local councils to impose financial penalties on individuals or businesses that breach conditions attached to the personal or premises licences. Those breaches must not constitute a criminal offence under proposed new section 4B, which provides for an offence for lying. If a breach occurs, the council can impose a penalty, with the amount of the fine not exceeding £2,500. That serves as an alternative to criminal prosecution for more minor violations, allowing for a more flexible approach to enforcement. The section also allows for adjustments to the penalty amount to reflect inflation, ensuring that fines remain relevant over time.

Schedule 2 to the 2014 Act provides further details on the implementation of those financial penalties and outlines how the penalties will be enforced and collected. That mechanism enables councils to take swift action against minor breaches without resorting to criminal prosecution. Schedule 11 on the retail licensing scheme in Northern Ireland specifies the procedures for granting personal licences, including who may apply and the conditions that must be met for approval.

Schedule 12 provides for the financial penalties for breach of retail licence conditions in Northern Ireland. It outlines the process for granting premises licences, with particular attention paid to ensuring that premises used for sale and storage of tobacco products meet the necessary standards for health, safety and law compliance. Any proceeds received from financial penalties in Northern Ireland must be used by the council for the purpose of its functions under the Tobacco Retailers Act (Northern Ireland) 2014 or for other functions that the Department of Health in Northern Ireland may specify by regulation. That is a little different from the rest of the United Kingdom.

Schedule 13 sets out consequential amendments to the existing legislation to support the introduction of a new licensing framework. I will not go through those in detail.

[Jack Rankin]

In my remarks to date, I have tried to support responsible vaping businesses, which I think are legitimate, and to champion vaping as a smoking cessation tool. These clauses are not in contradiction of that principle. We should support better efforts to regulate the vape market and in particular to stop youth access. Introducing the licensing concept for vapes is consistent with the Government’s intent and the principles that I wish to support.

I wish to make some suggestions as to how the licensing regime should best be set up, and I hope that the Minister will talk about his intent in advancing the regulations. The UK responsible vape sector has talked sensibly about licensing. We have the existing framework of the Licensing Act 2003, which covers the sale of alcohol; that is the kind of approach we should take to minimise excessive regulation and make it easy for people to comply. The licensing fee should be set at a rate that is at least cost-neutral to local authorities—I think everyone across the Committee realises how stretched those local authorities are—and it should cover both administrative and enforcement costs. I hope the Minister will comment on that point.

On the proximity of licensed premises to certain other locations, I encourage the Minister to try to mirror the alcohol regulations in order to provide a measure of consistency, so that legitimate premises with experience of selling age-related products can do so in the least bureaucratically complicated way. I invite the Minister to consider those points.

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[Dr Johnson]

It is important that retailers who persistently flout the law are appropriately punished and that this acts as a deterrent for others. In his regulations, the Minister may want to consider whether the failure to obey one particular part of the age-restricted product legislation, such as the Tobacco and Vapes Bill, could lead to a loss of licensing for other age-restricted products, whether that be alcohol, fireworks or otherwise.

[Sarah Bool]

I welcome my hon. Friend’s comments and I agree. I would be interested to hear what the Minister has to say in this regard.

Evapo also says that

“the scheme should mandate at least two annual independent mystery shops, paid for out of the licensing scheme.”

That would be a good way of ensuring that the legislation is working in practice.

I hope that, before the roll-out of the various regulations, there will be a series of detailed consultations on how they are granted, the licence fee, the conditions, the duration, the publication, and the reviews and appeals. That would give us certainty that we are ensuring this legislation works in practice.

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[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?

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[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.

Tobacco and Vapes Bill (Eighth sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 16th January 2025 Public Bill Committees

[The Chair]

With this it will be convenient to consider clauses 25 to 27 stand part.

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

It is a pleasure to serve under your chairmanship, Mr Dowd. Clauses 23 to 27 relate to restricted premises orders. Restricted premises orders stop sales on a premises whereon a relevant offence has taken place

“whether made—

(a) by the offender or any other person, or

(b) by means of any machine”,

and the orders prohibit the sale on the relevant premises of

“any one or more of the following—

(a) tobacco products;

(b) herbal smoking products;

(c) cigarette papers;

(d) vaping products;

(e) nicotine products.”

They can apply, as defined in clause 23, for up to a year, and are designed to tackle persistent offenders.

Clause 23(7) defines a persistent offender, stating:

“A person convicted of a relevant offence is a ‘persistent offender’ for the purposes of this section if, on at least two other occasions within the period of two years ending with the date of the offence, the person committed a relevant offence in relation to the relevant premises.”

Clause 23(8) defines a relevant offence. It states:

“In this section ‘relevant offence’ means—

(a) an offence under any of the following provisions of this Part—

(i) section 1 (sale of tobacco etc to people born on or after 1 January 2009);

(ii) section 3 (tobacco vending machines);

(iii) section 10 (sale of vaping or nicotine products to under 18s);

(iv) section 12 (vaping and nicotine product vending machines);

(b) an offence under any of the following (which are repealed by this Act)—

(i) section 7 of the Children and Young Persons Act 1933 (sale of tobacco, etc., to under 18s);

(ii) section 3A of the Children and Young Persons (Protection from Tobacco) Act 1991 (tobacco vending machines);

(iii) section 92 of the Children and Families Act 2014 (sale of nicotine products to under 18s).”

For a restricted premises order to be applied, the Bill says that the sale has to take place on the premises. How does this apply to online sales that are collected? I would like an assurance that there is not a loophole for sales whereby someone buys the product online and then collects it at a premises. Also, why are offences under the following clauses not included: clause 4, “Sale of unpackaged cigarettes”; clauses 5 and 6 on age of sale notices; clauses 13 and 14, which contain the display regulations; and clause 15 on the distribution of samples and promotions?

I presume that the relevant offence could be any one of the different offences. For example, I presume that an individual could be convicted for illegally selling vapes on one occasion and tobacco products on another—that it would not necessarily need to be the same product on each occasion. Could the Minister could clarify that? Also, how does the landlord-tenant arrangement work? If the tenant behaves badly and is thrown out of the premises as a result, could the landlord rent the premises to another company or allow another person to run a business on the premises instead? Would that remove the restricted premises order? If it did, how does the Bill prevent another company set up by the same people or their relatives from getting around the restricted premises order?

Clause 24 ensures that those subject to a restricted premises order will know about it, which is obviously important. An applicant must make “reasonable enquiries” to determine

“(a) the occupier of the premises, and

(b) any other person who has an interest in the premises.”

Does that include shop employees? Otherwise, how would a shop employee know, unless their boss told them, that a restricted premises order was in place? Is it the intention that a sign be put up in the building that says so, or would we be reliant on the shopkeeper telling his shop workers?

Clause 25 allows for appeals to the Crown court. How much does the Minister believe that that will cost in a typical case?

Clause 26 provides for penalties for breaches of a restricted premises order, which is only a fine. How much will that fine be? Presumably, it will be substantially more than the relevant offence fines, or what would be the point in having it? If the penalty for repeatedly flouting the same law is a fine that is not much more than the original fine, it will not act as any form of deterrent. Will the Minister give some guidance on how much the fines will be? Also, if an employee—in a shop, for example—was not told that there was a restricted premises order in place, and in good faith sold the product because they believed that that was an okay thing to do, would that be counted as a reasonable defence?

Clause 27 is essentially the same provision, but with respect to Wales. It allows the Welsh to extend the list of relevant offences in Wales, but subsection (2) only allows that if the offence

“relates to tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products.”

If the Secretary of State used his powers under clause 45, which we have not come to yet, to expand the Bill to include products that are used to consume tobacco—such as the bongs that I know interest the Minister so much—then the Secretary of State must get the consent of the Welsh to add them to clause 45. That is sensible, but clause 27(2) would presumably prevent the Welsh Minister from extending the relevant offences. Therefore, does subsection (2) need to say at the end, “or any product added under the provisions of clause 45”?

[Sarah Bool (South Northamptonshire) (Con)]

The shadow Minister makes an important point on a technicality about who the restricted premises order applies to—if, for example, a tenant is the offender.

Under clause 23(6), a restricted premises order is a local land charge; that comes out of the Local Land Charges Act 1975. Once a property lawyer, always a property lawyer—forgive me. For those who may be interested, a local land charge is a restriction on the property in the order of a planning decision, a tree preservation order or a conservation and listed building notice. That means that it will stay with the freehold title of the property. Therefore, even if a tenant has caused the problem, that order will affect the landlord’s interest, because it can be on the register for up to a year. It is not very clear in these provisions how that order can be taken off the property in the instance that it is the tenant who is the problem offender.

That also plays into clause 24, which deals with ensuring that interested persons are aware. For these purposes, I understand that that would be a bank, for example. If there is a mortgage over the property, banks would become incredibly interested because it goes to the value of their security. When a bank needs to step in if something goes wrong with the financing, it needs to know what is happening in this scenario. I can imagine the severity of this provision; it can go to the fundamental basis on which a bank has lent any money.

[Dr Johnson]

My hon. Friend is making an important point and I am grateful for her legal expertise. The tenant would be responsible for having committed the offence, but the landlord would effectively be punished too. I understand that there is a balance to be struck. We want to ensure that the tenant is not able to reconstitute his or her business under a different name, or perhaps take a new lease under their spouse’s name, in order to get around the restricted premises order, but is there any mechanism that my hon. Friend can see by which a landlord—who has genuinely re-let the property to a completely different, unrelated and unknown party—can get rid of the restricted premises order on it?

[Sarah Bool]

Based on a quick look at the drafting alone, I do not see an immediate ability to do so. A land charge is a charge on the property title, so it stays there until it can be removed. That is probably where the property lawyers would step in. I agree with my hon. Friend that we could see a situation whereby a landlord who has problem tenants could try to terminate the lease because of the breach of various provisions, but they would none the less still be burdened by a restricted premises order. As I said, I think that will have a bigger impact on financing, and on the terms of the mortgage. I foresee some potential complications.

[Dr Johnson]

When the interested parties are informed, could the landlord step in at that stage, as an interested party, to appeal the restricted premises order, on the basis that they are in any case ending the tenancy of the individual company or person that caused the offence in the first place?

[Sarah Bool]

I think that is what they would do. If they did not step in at that point, any financing or any bank that had a mortgage over the property would certainly be looking to do that—to try to clear out the property and make sure that it is free to be used thereafter. It may seem like a technicality, but I can foresee this point as one that will be wrangled over for many years to come.

--- Later in debate ---

[Andrew Gwynne]

In that case, clauses 28 to 30 relate to restricted sale orders, which are another tool in the arsenal of trading standards that can be used against those who repeatedly commit an offence. Like the clauses related to restricted premises orders, they are based on and replace existing legislation.

Clause 28 provides that a persistent offender in England and Wales can be issued with a restricted sale order. A persistent offender is someone who has committed an under-age sale of cigarette papers, tobacco or herbal smoking, vaping or nicotine products or has committed the offence of selling them from a vending machine at least twice in the previous two years. A restricted sale order is similar to a restricted premises order, but it puts a ban on an individual, rather than a premises, selling relevant products. It also prohibits the individual from having management functions related to the sale of relevant products and from keeping machines on any premises that sell relevant products. This is one of several measures in the Bill that will ensure that our enforcement approach to tackling under-age sales is both effective and proportionate. The clause is important for the overall functioning of the Bill, as it provides local authority trading standards with a further tool of enforcement. Restricted sale orders also act as a deterrent to persistent offenders, as they apply to a specific person regardless of where they are employed or whether they change employment.

Clause 29 provides those in receipt of a restricted sale order in England and Wales with the ability to appeal to a Crown court. The clause is important to the functioning of the enforcement regime in the Bill, as it enables individuals to appeal against a restricted sale order, such as where they feel that they have a case that the order has been inappropriately or unfairly issued. That maintains the fairness of the enforcement regime in the Bill.

Clause 30 makes it an offence to breach a restricted sale order issued in England and Wales. The offence is committed when the individual has done something, such as sell a product, that they have been prohibited from doing under the restricted sale order. It provides a defence where a person took all reasonable steps to avoid committing the offence. The clause is based on and replaces existing legislation. As with restricted premises orders, making it an offence to breach restricted sale orders gives local authority trading standards the ability to escalate action to tackle persistent offenders. The severe penalty of an unlimited fine can act as a deterrent.

I commend clauses 28, 29 and 30 to the Committee.

[Dr Johnson]

As the Minister has already described these clauses, I will not repeat that information, but I encourage him to answer my questions on the previous clauses, as they apply similarly to this group. The others were related to restricted premises; these clauses relate to restricted sales applying to people, but the questions are the same.

If one appeals to the Crown court, how much will it cost? The Minister did not answer the question about the phraseology of “on the premises” and how that would relate to the collection of items bought online. In the debate on the previous clauses—the same question applies to these ones—he did not answer why the offences in clauses 4 to 6 and 13 to 15 are not considered relevant. Will he also clarify that a different relevant offence can occur on each of the three occasions within the two years?

With regard to restricted sale orders, paragraphs (c) and (d) of clause 28(2) relate to machines used for the purpose of selling cigarettes and other banned products. It is illegal under previous clauses to sell items from a machine, so why would one need a restricted sale order to ban something that is already illegal?

[Sarah Bool]

My hon. Friend raises the points that I was going to raise. I did question why clause 28(2)(c) in particular was necessary, because if we ban vending machines there should not be any machines going forward. I want to understand what machines we envisage if they are not going to be vending machines.

--- Later in debate ---

[Andrew Gwynne]

I will follow your guidance, Mr Dowd, because we will debate some of these issues further.

First, I apologise to the shadow Minister on the subject of the questions that she asked, particularly about the fines. The fine for a breach is level 5. That is the maximum and an unlimited fine. When it comes to the breach of a restricted premises order and the other offences we have been discussing, these are all serious offences that take place after someone has committed multiple previous offences and when several enforcement steps have already been taken along the way. It is therefore really important that trading standards has the option—and it is that, an option—to escalate enforcement measures to issue a potentially very high fine. The fine needs to reflect the severity of the offence and the fact that the offender is persistently breaching the regulations.

That follows on to the matter of record keeping raised by my hon. Friend the Member for Cardiff West. We will continue to work with trading standards during the long lead-in time that we anticipate we will have once this Bill hopefully gets Royal Assent. I am sure that trading standards already has good record-keeping that will help it to ascertain persistent offenders for rogue sales but, if it does not, we will work with it to make sure that it does and that it can properly enforce the measures in the Bill.

On the point about the current use of restricted sale orders, the data from the tobacco control survey shows that between April 2013 and March 2020, one council applied to the courts for a restricted sale order that was not approved. There have been no tobacco control survey reports since 2020, so more recent data is not available, but this information is gathered by the Chartered Trading Standards Institute, so that answers that point.

I take the point made by the hon. Member for South Northamptonshire about restricted sale orders and vending machine offences and we are seeking to remove vending machines for tobacco and vape sales. Restricted sale orders specifically prevent the sale of tobacco, vape and nicotine products, and, when offences relating to the sale of these products have been persistently committed by an individual, we think that they are a proportionate enforcement tool that is specific to the nature of the offence committed. I take the hon. Lady’s point that we are seeking to remove vending machines, but we want to make sure that the clauses are as watertight as possible so any sales from vending machines that might happen would still be covered by the scope of the measures for enforcement.

[Dr Johnson]

I thank the Minister for answering some of my questions. Another question related to clause 29 and appeal to the Crown court. How much does he anticipate that the average cost to interested parties will be? If he does not know, perhaps he could write to us.

On clause 28, the relevant offences do not include offences in other clauses in part 1 of the Bill, including clauses 4, 5, 6, 13, 14 and 15. They are not included as relevant offences in clause 28, or indeed clause 23. Given that the Minister wants a robust and watertight approach, why is that not the case? The other question related to online collection.

[Andrew Gwynne]

The hon. Lady has asked a number of technical questions. We will get back to her and the Committee about the interrelationships between different clauses.

On the question that she asks about applications to the Crown court and the fines system in the Crown court, it is of course the Crown court that deals with appeals against penalties issued in respect of criminal offences dealt with in the magistrates courts. These are matters for the courts.

I know she asked about costs, and we believe that it would not be proportionate to prevent a business that has breached tobacco and vape sale restrictions from being able to conduct other types of businesses. For serious cases, where criminal behaviour occurs on a premises, local authorities can apply for a closure order under section 80 of the 2014 Act. Closure orders fully close a business for a maximum of three months and can be extended for a further three months on application to a court. I am not sure that covers her point, but we will get back to the hon. Lady on that.

[Dr Johnson]

I had another question on restricted sale orders. Why has the Minister chosen to include particular clauses and not others? I believe he will write to the Committee on that question.

[Andrew Gwynne]

Yes.

[Dr Johnson]

I asked about online sale and collection versus sale on premises. Finally, if an individual person is a repeat offender under clause 28 because they have sold tobacco three times, that would be fairly clear. If they have sold tobacco on one occasion, vapes on another and cigarette papers on another, does that still count as three relevant offences?

[Andrew Gwynne]

It is obvious that three separate offences have occurred, so if the hon. Lady is asking whether they count as three offences under the Bill, of course they would. They are each their own separate offence under the Bill. That is absolutely the case. We cannot be any clearer that these are three separate offences; they are in different parts of the Bill, but none the less they are offences under the Bill. I hope that clarifies that point.

In terms of online sales, what we want to ensure is that the measures in the Bill are proportionate. These clearly relate to premises rather than a virtual space. I will certainly write to the Committee to make sure that online is covered in the provisions. Throughout the measures we have discussed to date, we have discussed trying to bring the same regulation to bricks and mortars and to online, so that there is no loophole for the industry to move away from a physical space to online, to try to get around restrictions. How that relates to a particular restricted sale order is technical in detail, so I will write to the Committee at the earliest opportunity to clarify the point.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clauses 29 to 31ordered to stand part of the Bill.

Clause 32

Enforcement by local weights and measures authorities

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

--- Later in debate ---

[Andrew Gwynne]

Look, the clause merely reaffirms the current case, which is that local trading standards and weights and measures authorities must consider certain things. The hon. Gentleman is right that on the enforcement regime for tobacco and vaping products, the Bill extends the consideration that local members should give. It is very clear, with the set of measures we are dealing with in this Bill, what those considerations should be and what local councillors and the executive or the mayor should consider on behalf of the local authority. Every local authority trading standards has a programme of enforcement that is approved by that local authority; this Bill will request of them that that is extended, within the scope of the measures in the Bill—hopefully to be an Act—to include what we expect for the enforcement of tobacco and vape regulations.

The Bill will also ensure that they continue to review the action they take on a regular basis. It is really important to ensure that the enforcement regime in any particular local authority area is as robust as it can be and that, where there are deficiencies, the local authority and the members constituting it have the opportunity to put things right. Clause 34 makes the same provision for programmes of enforcement action in Wales as is made for England under clause 33, and clause 81 makes similar provision for district councils in Northern Ireland. I therefore commend these clauses to the Committee.

[Dr Johnson]

I thank the Minister for outlining what these clauses do. I will not repeat his summary, but I will ask him one question: could he confirm what provisions are made for Scotland, please?

[Andrew Gwynne]

Scottish Ministers have advised that they do not wish us to legislate on this. It is my understanding that that is why these measures relate solely to England, Wales and Northern Ireland.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clauses 33 and 34 ordered to stand part of the Bill.

Clause 35

Power of ministers to take over enforcement functions

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

[The Chair]

With this it will be convenient to discuss clause 36 stand part.

[Dr Johnson]

Clauses 35 and 36 provide ministerial powers. In clause 35, Ministers can decide that they will take over a duty to enforce part 1 of the Bill or regulations under clause 13 in relation to a particular case in England. Subsection (2) of the same clause provides for Welsh Ministers to do the same. Clause 36 gives a similar power to Ministers, only this time it applies to proceedings in respect of an offence, as opposed to a duty to enforce an offence under part 1 of the Bill or regulations under clause 13. Could the Minister give some examples of why Ministers, or the Secretary of State in the case of England, would wish to interfere in either the duty to enforce or the proceedings in respect of an offence? Could he also provide for what provisions are made for Northern Ireland and Scotland?

[Andrew Gwynne]

The shadow Minister makes an important case for these measures covering England and Wales. There are no known cases of Ministers needing to take over the enforcement of tobacco and vape regulations in England and Wales. Trading standards operates in all local areas and undertakes enforcement responsibilities, and it will continue to do so. We acknowledge as a Government that it is highly unlikely that these powers will ever need to be used, but it is important to have them to ensure that there is consistency in enforcement, if there is ever an occasion where a local authority is unable to conduct enforcement activity. We believe these powers act as a useful safeguard for very extreme circumstances.

If this power were exercised—as the shadow Minister has rightly put to us, although we do not expect it ever to have to be—how would it work in practice? It is a fair point. Ministers would decide how enforcement functions would be taken over, as well as the suitable organisations or individuals who would be involved in undertaking the enforcement action for a particular case, or cases of a particular description. That is woolly for the simple reason that we do not know what those circumstances would be. Were there circumstances severe enough to warrant Ministers utilising this power, we would want to ensure—

[Dr Johnson]

Ministers intervening in a particular case is obviously quite a sensitive issue, particularly where that is the prosecution of a single individual or the duty to enforce regarding a single shop. I can understand that there may be a conflict of interest, and the Secretary of State may be asked to choose a different authority to arbitrate to avoid that conflict, but how will the Minister ensure that these measures are not used for political purposes?

[Andrew Gwynne]

All I can say to the shadow Minister is that we do not intend to use these powers. They would hopefully never see the light of day. However, we have to legislate for—we are keen to legislate for—those exceptional circumstances that will probably never happen. Where there is a real failure on the part of a local trading standards to deliver its core functions, as set out in the Bill, Ministers must reserve the right to intervene.

[Dr Johnson]

With respect, if the clause said that the Secretary of State reserves the right to take over proceedings or the duty to enforce for more multiple cases in the same area, or take over the whole job of the local authority, that would perhaps make some sense, if the local authority was underperforming in its duties. However, these clauses state that it is for a specific case, not the wider failure to deliver.

[Andrew Gwynne]

I get that—it is difficult without having a specific example, because there has not ever been one, but we have to assume that at some stage in the future there may be a case, however unlikely that is. We have to ensure that the Secretary of State has the absolute confidence that the trading standards functions of a particular area are able to meet the ambitions of the Bill. If, for whatever highly unlikely reason, there is a conflict of interest or those functions have not been delivered in an appropriate way, Ministers need to have that opportunity to intervene. That is what this power, as unlikely as it may be, seeks to do; it is a backstop in the extreme, unlikely circumstance that local trading standards is not operating in accordance with the measures of the Bill.

[Dr Johnson]

Has the Minister discussed it with his Scottish and Northern Irish counterparts, and can he say whether they have a similar provision? If they do not have it, why do they feel that they do not need it?

[Andrew Gwynne]

Scotland does not have the powers in the Bill, and nor does Northern Ireland. We have discussed all of this in terms of where we are legislating for different parts of the United Kingdom. I would like to reassure the shadow Minister, though, that Scotland does have a similar, separate power from this. It is not true that Scotland does not have this power; it does have it, but does not want it to be part of the framework in the Bill.

This is a measure that we believe is a safeguard. It is unlikely that we will ever seek to use it, but we have to have those safeguards, because were there to be a local authority that is not able to perform the requests that the Bill sets out, and were the Secretary of State or Ministers at some stage in the future of the view that the trading standards functions were not meeting the requirements of the Bill, there has to be some measure to allow Ministers to step in and try to fix that situation so that the measures in the Bill, and the robust enforcement that we expect from those, are applied consistently across the whole country.

[Dr Johnson]

The Minister says that it is similar in Scotland—I would be grateful if he could confirm whether that is related to individual cases or to a wider takeover of a failing Department. The Minister has talked a lot about the proportionality of the offences, fines, and punishments that can be chosen by trading standards, and he says that he trusts trading standards to ensure that that is proportional to the offence on each occasion. The concern is that the clauses would allow the Secretary of State to interfere with that by taking over the proceedings or the decision to enforce in a particular case, which would mean, for example, that if a Secretary of State was concerned that his best friend was running a shop and was about to get into trouble, he could intervene on the basis of this legislation and prevent that person from having proceedings. Likewise, if an Opposition politician was in the same situation, he could intervene to make proceedings much harder and harsher than they would normally have been.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

Will the hon. Lady give way?

--- Later in debate ---

[Dr Johnson]

I cannot give way, because I am intervening on the Minister. Does the Minister understand that concern?

[Andrew Gwynne]

I understand what the hon. Lady is trying to get at, but I started by saying, in answering her, that there have been no known cases of Ministers needing to take over the enforcement of tobacco and vapes regulations in England and Wales. These are an important safeguard in a probably never event—[Interruption.] She asks why we are doing it: we are doing it precisely so there is a safeguard and, in an extremely rare occasion that we might need to intervene, we are able to. It is not a power that we are seeking to use, nor do we want to use it, but it is an important safeguard. With that, I commend the clauses to the Committee.

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

--- Later in debate ---

Fixed penalty notices

[Dr Johnson]

I beg to move amendment 54, in clause 37, page 19, line 25, at end insert—

“(1A) In respect to sections (1) and (2) fixed penalties will not be issued where a person has admitted guilt, and it is a first offence.”

This amendment ensures that fixed penalty notices for an offence under sections 1 and 2 will not be issued if it is a first offence in England and Wales.

[The Chair]

With this it will be convenient to discuss the following: amendment 55, in clause 50, page 26, line 33, at end insert—

“(5A) In section 27 (Fixed penalties), in paragraph (1) at end insert ‘, save if an offence under section 4, 4A, and 4B is a first offence for which a person has admitted guilt”.

This amendment ensures that fixed penalty notices for an offence under section 50 will not be issued if it is a first offence in Scotland.

Clause stand part.

[Dr Johnson]

Amendments 54 and 55 are probing amendments, like others we have tabled in a similar vein, to provoke discussion about the proportionality of offences, particularly where an offence has occurred inadvertently because someone has misjudged the age of an individual in front of them in an innocent way.

I will not repeat myself, but we have already talked about the evidence that shows that people have great difficulty in identifying someone’s age, and the Government have not yet provided guidance on how individual shop workers should be trained to identify people’s age, whether they should be trained to always check ID and how they will prove they saw it and what it looked like. Until that guidance is provided, it is quite difficult to see how all offences can necessarily be proportionate for someone, particularly someone committing a first offence.

However, clause 37 offers some opportunity for discretion within that process by providing for the issuing and handling of fixed penalty notices by local weights and measures authorities for certain offences relating to the tobacco and vaping regulations in England and Wales. It stipulates that local authorities can issue FPNs to individuals suspected of committing specific offences, such as selling tobacco or vaping products to minors or breaching the display or sale regulations. These offences are detailed in the sections mentioned in subsection (1), such as selling tobacco to those born on or after 1 January 2009 or selling nicotine products to under-18s.

The notice offers the person an opportunity to avoid being prosecuted by paying a specified fine within a set period of 28 days. The fine is set at level 4 on the standard scale, or £2,500, whereas for some other offences it is set at £200. There is quite a different there, so I would be grateful if the Minister could explain the reason for that variation.

The individual can pay the full fine within 28 days, or a reduced fine—50% of the original amount—if it is paid within the first 14 days. If the fine is paid within the relevant period of 28 days, whether that is the reduced fine within the 14 days or in full later at 28 days, the individual will not be convicted for the offence. If the payment is not made in time, legal proceedings can then begin. However, no legal proceedings can be initiated before the end of the 28-day period. If the person who has received the fixed penalty notice fails to make the payment and the local authority decides to initiate proceedings against them, the time that is calculated for the magistrates court will begin after the payment window of 28 days. The relevant authority can withdraw the fixed penalty notice at any time before the payment is made.

The fixed penalty notice must explain that the local weights and measures authority has reason to believe that the person has committed an offence, why the penalty is that amount, and how and when to pay the system. As I understand it, it is designed to offer a simple and quicker alternative to prosecution, providing an incentive to resolve minor offences through the payment of a fixed fine.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. Amendment 54 would provide that someone who commits the offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in England and Wales, or the offence of purchasing these products on behalf of someone under age—proxy purchasing—cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.

Amendment 55 would achieve a similar effect in Scotland. This amendment would ensure that someone who commits an offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in Scotland, or commits a proxy purchasing offence or the offence of failing to operate an age verification policy, cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.

The shadow Minister’s intention may be to establish greater leniency for first-time offenders by removing fixed penalty notices as an enforcement option. Or it may be that she just wishes for first-time offenders to potentially face criminal prosecution and higher fines. Nevertheless, we do not want to weaken the existing penalty regime or reduce enforcement options available to trading standards by creating exceptions for first-time offenders or anyone else who has committed these offences. We also do not want to risk causing confusion for trading standards officers, when it comes to utilising these fines, by creating different rules for first-time offenders.

The purpose of the fixed penalty notices is to enable trading standards to take enforcement actions against rogue offenders more quickly and easily. These on-the-spot fines avoid the need to take offenders through a time-consuming magistrates court process, and reduce the pressure on courts. When enforcing tobacco and vape legislation, trading standards takes a proportionate approach, choosing the appropriate action to take to achieve compliance. That typically starts, as we have discussed, with the issuing of warning letters, which is often effective in achieving compliance without the need to escalate to harsher penalties, such as prosecution and associated criminal fines, which are subsequently issued by a court on conviction. We do not want to remove the ability of trading standards to issue fixed penalty notices, including for first-time offenders, where that is viewed as a proportionate penalty for the particular case before them. It is for those reasons that, once more, I ask the shadow Minister to withdraw the amendments.

I now move on to clause 37, which amendment 54 seeks to amend. The clause introduces new fixed penalty notices in England and Wales to enable local authority trading standards to take quicker action by issuing on-the-spot fines to retailers in breach of regulations, instead of seeking a court prosecution. The fine will be £200—double the amount proposed in the same Bill when introduced by the previous Government. We will go further by enabling the use of the fixed penalty notice for a wider range of offences.

Trading standards officers will be able to issue a £200 fixed penalty notice for under-age sales, proxy purchases and free distribution of tobacco, vaping and nicotine product offences, as well as breaches of tobacco age of sale notice restrictions and breaches of display of products and price regulations made under this Bill. The value of the fixed penalty notice is reduced by 50% to £100 if paid within 14 days by the individual in question. This amount is proportionate and brings the value of the fixed penalty in England and Wales into closer alignment with the current similar values in Scotland and Northern Ireland and the £200 fixed monetary penalties for breaches of the single-use vapes ban. It was also the most popular value given by respondents to the Government’s public consultation.

A higher fixed penalty amount, set at level 4 on the standard scale—currently £2,500—will be available for licensing offences under clauses 17 and 20, in England and Wales, once respective licensing schemes are established through regulations. This higher value reflects the seriousness of these offences and will help the taking of action against rogue retailers.

Fixed penalty notices offer an individual the opportunity to avoid prosecution for an offence if they make a payment within a specified period. Existing fixed penalty notices already in place for proxy purchases of tobacco and vape products will be replaced by this new regime. A strong and proportionate approach to enforcement is vital to support the implementation of new tobacco and vape measures and put us on track to a smoke-free United Kingdom. Fixed penalty notices will complement our existing sanctions and strengthen the toolkit available to trading standards officers by allowing them to take swifter action to fine rogue retailers that breach certain regulations, including age of sale regulations. I therefore commend clause 37 to the Committee.

[Dr Johnson]

The Minister has reassured me that the trading standards officer fining someone breaching the regulations and the provisions of the Bill that are relevant has the capacity to issue warning letters to someone who they believe has committed such an offence inadvertently—someone who would otherwise wish to adhere to the law, but has made a simple mistake—and there is a range of other options, such as an FPN or prosecution itself, for the more reckless or persistent offender, so I will not press my amendments to a vote.

On clause 37 itself, can the Minister answer this question. People can repeatedly be issued with FPNs; if someone were issued with an FPN rather than being prosecuted, would that be recorded as a “relevant offence” under clause 23 or 28—on restricted premises orders and restricted sale orders—or could someone be recurrently getting an FPN and not be treated as a recurrent offender?

[Andrew Gwynne]

My apologies to the shadow Minister. The simple answer is no; paying a fixed penalty notice is an alternative to criminal prosecution. A person cannot be convicted of the offence if they pay the fixed penalty notice within the specified time.

[Dr Johnson]

I thank the Minister for that information. Does he therefore envisage situations in which an individual receives an FPN recurrently but is not treated as a recurrent offender?

[Andrew Gwynne]

That would be a matter for trading standards to judge, but one would expect that if somebody is a recurrent offender in that regard, trading standards may want to use the vast array of enforcement powers, including, ultimately, being taken through the court process, should that be appropriate. But that is entirely a matter for trading standards.

[Dr Johnson]

I think that could lead to a situation where the first offence is committed and trading standards gives the individual a warning letter because they believe the individual did not intend to commit it, the second offence is committed and an FPN is issued, the individual commits a third offence and gets another FPN, and so on. By the time we get to the fourth offence, the trading standards officers may get fed up with that individual and want to treat them as a recurrent offender but be unable to do so because they have technically never committed a relevant offence. Trading standards would then have to prosecute them for the next three offences over two years before they could treat them as a recurrent offender, which would delay the prosecution under the restricted premises or restricted persons order of an individual deliberately and recklessly selling age-restricted products to under-age people. Can the Minister consider whether someone receiving recurrent FPNs would be considered for the restricted sale order, perhaps at a higher threshold than prosecution?

[Andrew Gwynne]

The shadow Minister makes a valid point. I remind her, though, that there is an array of tools for trading standards to use. A fixed penalty notice is one; we have discussed and debated other measures to date. There is an entire toolbox of enforcement measures. I am not quite the Stalinist some might think; I trust trading standards to take the appropriate action given the circumstances. The Bill, hopefully soon to be an Act, will provide trading standards with an array of different measures, so that if they decide that someone is a persistent offender, they can go down a variety of different routes.

[Dr Johnson]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.

Clause 38

Fixed penalties: use of proceeds

[Liz Jarvis (Eastleigh) (LD)]

I beg to move amendment 2, in clause 38, page 20, line 18, leave out from “must” to the end of line 19 and insert—

“be allocated by the relevant Local Health and Wellbeing Board to public health projects.”.

This amendment would direct funds from Fixed Penalty Notice fines to public health initiatives, determined by Local Health and Wellbeing Boards.

--- Later in debate ---

[Liz Jarvis]

I have one sentence left.

The amendments would ensure that the penalties imposed for regulatory breaches contribute directly to mitigating the broader harms caused by tobacco and vaping.

[Dr Johnson]

My understanding—the Minister may correct me if I am wrong—is that the money from FPNs would go into the relevant Consolidated Fund once the enforcement costs of investigating an issue in the FPN have been deducted by the local weights and measures authority. Were these amendments to come into force, the Government would need to provide the extra money to ensure that the enforcement agencies can still function, because at the moment some of their money is recycled from the FPNs, and that would not be the case.

I understand the hon. Lady’s desire to ensure that the money that comes from FPNs for the sale of tobacco and other relevant products to under-age individuals is used to improve public health, but in practice if the money goes into the Consolidated Fund, the Government can use it for whatever purposes they deem useful for public health. There is therefore nothing to stop them using it entirely for public health, and for this House to decide what it should be spent on, because that is how the Consolidated Fund is spent. In my view, having a separate fund administering the FPNs would add an extra layer of bureaucracy, so I do not support the amendments, although I support the principle behind them of trying to ensure that public health is good, because all parties want that.

[Mr Barros-Curtis]

I appreciate that the hon. Member for Eastleigh is perhaps in the invidious position of having to talk about something that is not the amendment she originally authored, but I share the shadow Minister’s concern.

I note that the current drafting of clause 38 has respect for the devolved position. I am the Member for Cardiff West, so I take a particular interest in the Welsh Consolidated Fund. I am concerned that amendment 2 would replace those words with

“the relevant Local Health and Wellbeing Board”,

so it does not take into account the devolved position with respect to Wales. I therefore suggest that the amendment be withdrawn.

--- Later in debate ---

[Dr Johnson]

Clause 39 provides the power to change the amount of fixed penalties. As the Minister has described, the fixed penalty is set at £200. The clause outlines the powers granted to the Secretary of State and Welsh Ministers to modify the details of fixed penalty notices, in terms of both the level of fine and any percentage discount granted for early payment. The powers seem sensible, as does having an overall limit. The limit that the Government have chosen to set is that of a level 3 fine on the standard scale, which will rise periodically from time to time.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

Clause 40

Handing over tobacco etc to underage people in Wales

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

[The Chair]

With this it will be convenient to discuss schedule 5.

[Dr Johnson]

Clause 40 seems self-explanatory. It introduces schedule 5, which relates to the illegal act of handing over tobacco and nicotine products to individuals under the age of 18 in Wales. It amends the Public Health (Wales) Act 2017 to include vaping products, herbal smoking products, cigarette papers and nicotine products. This creates a difference between England and Wales. Obviously the Welsh are free to make changes where they wish to, but I am interested in why the Minister has decided that we should not have a corresponding piece of legislation for England.

[Andrew Gwynne]

The hon. Lady makes a reasonable point. Wales is the only devolved Government to have a provision on handing over products to people who are underage. That is why the clause is framed in the way that it is, given the fine balance of reaching consensus across the devolved Administrations and England. Wales is the only devolved Government to have this provision.

[Dr Johnson]

I may have misheard the Minister, but I am not sure he explain why he does not think it is necessary in England.

[Andrew Gwynne]

We do not think that this power is necessary, nor did the Northern Ireland Executive or Scotland. Wales wishes to retain a power that it already has, and I think that is fair enough.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 41 ordered to stand part of the Bill.

Schedules 6 and 7 agreed to.

Clause 42

Application of programmes of enforcement to old age of sale offences

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

[The Chair]

With this it will be convenient to discuss clause 43 stand part.

[Dr Johnson]

My understanding is that clauses 42 and 43 provide for enforcement of fixed penalty notices for the old age of sale offences in the intervening time between the Bill being passed and it coming into force. It seems therefore sensible.

Question put and agreed to.

Clause 42 accordingly ordered to stand part of the Bill.

Clauses 43 and 44 ordered to stand part of the Bill.

Clause 45

Power to extend Part 1 to other products

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

[The Chair]

With this it will be convenient to discuss clauses 67 and 86 stand part.

[Andrew Gwynne]

Clause 45 enables the Secretary of State by regulation to extend the provisions of part 1 to cover devices or parts of devices that allow tobacco products to be consumed. Clause 67 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to give the equivalent powers to Scottish Ministers. Clause 86 amends the Health and Personal Social Services (Northern Ireland) Order 1978 to give the equivalent power to Northern Ireland.

These provisions mean that any newly emerging device or current device, such as heated tobacco devices, could be covered in future. This future-proofs the Bill, will allow us to stay on top of tobacco control and will protect the public from the harms of tobacco. Before making any regulations under the clause, the relevant Ministers or Department will have a duty to consult. For amendments to part 1 of the Bill, the Secretary of State must obtain the consent of Welsh Ministers if those regulations would be within the legislative competence of the Act of the Senedd. I therefore commend these clauses to the Committee.

[Dr Johnson]

I believe this is the clause the Minister previously mentioned in relation to bongs. It is his desire to ensure that items used for illegal drugs, which are currently legal only on the basis that they are used for tobacco, will not need to be used once tobacco is not as available. I have a question relating to the age of sale, because tobacco has a rolling age of sale. Is he suggesting that, to put these provisions in place and make these items illegal—such as the bongs that he has referred to so forcefully in the past—the smoke free generation will need to reach the point where there are no members of the smoking generation left?

[Andrew Gwynne]

I am not sure whether anybody is listening in to the proceedings of this Committee—I am sure lots of people are; the hon. Member for Windsor said thousands—but I certainly think that somebody connected with the tobacco and vape shop on Strutton Ground is listening, because the said offending bong, which has been there for the six months that I have been Minister, seems to have disappeared from the shop window. That shows the power of the parliamentary processes—it is not just sad geeks who are listening in to the proceedings of this Bill—[Interruption.] Indeed, it might have been sold—I did start to wonder whether I had inadvertently been advertising said bong.

The supply of controlled drugs and any articles for administering and preparing controlled drugs is regulated under the Misuse of Drugs Act 1971. However, as I have flagged, some items that might be captured by this legislation are also being displayed and sold. That is how they are getting around the Act—under the premise that they are used for smoking tobacco—and that includes things such as pipes and bongs.

[Dr Johnson]

My understanding was that the Minister did not wish to restrict the use of tobacco products and other products covered by this Bill by those who are over the age of sale, whether that be the smoke-free generation date or the age of 18. Does he accept that if he brings in regulations under clause 45, it will potentially affect those who are currently buying tobacco legally? How will he ensure a balance between protecting our population from drugs, particularly illegal drugs, and maintaining the availability of tobacco for those to whom the Government have decided it should be available?

[Andrew Gwynne]

I quite accept the shadow Minister’s point. We are not making the purchase or consumption of tobacco or tobacco products illegal. What we are doing is ensuring that the next generation can never legally be sold tobacco or tobacco products. I do not wish to stray over old arguments, but as I said when the Committee debated clause 1 at length, Parliament is effectively saying to the tobacco industry, “This is it. This is as good as your market share is ever likely to be. We’re going to stop that conveyor belt, so new people don’t come along to replace those who are dropping off the other end as a consequence of your product. We will move hell for leather to shrink what little market base you now have still further through things like the stop smoking programme,” which we discussed under the previous clause.

I hope that the hon. Lady accepts that although we will absolutely allow people who currently smoke to continue smoking or using tobacco products until the day they die if they so wish—we will do all we can to wean them off that addiction, but if they want to, they will be able to—we will be preventing the next generation from ever getting hooked. That is the context for all these clauses.

The power that we are discussing in relation to clause 45 will only mean that the other parts of the Bill can be extended to include these products. That is an important factor. We are not banning these products; we are just covering them in measures such as the display powers that we are discussing. That is important. It will mean that if a bong is put in a shop window like the one on Strutton Ground, action can be taken not on the basis that it is drugs paraphernalia—heaven forbid, because that would be a breach under the Misuse of Drugs Act 1971—but because the said bong can be used to smoke tobacco. It will give us the powers, should we so wish, to include a variety of other products in the scope of the Bill so that they cannot be displayed. If they are not displayed, the chances are that the said shops will not be selling them.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clause 82 stand part.

[Dr Johnson]

Clause 46 provides the legal framework for the power to amend the definition of the identity documents in clauses 1 and 10. There has been some debate about the list of identity documents, which is quite short. I know that the Minister has described the list of identity of documents for voting as too short, for example, but that is a much longer list than this one, with a much broader scope.

I understand the need to provide a legal framework to increase the number of identity documents and amend the list as required, so I support clause 46. I am sure that the Minister will be under pressure from the Chancellor to find efficiencies in his Department. Rather than saying, “We have the power to amend it, so let’s do that later,” and instead of using civil servants’, Members’, Ministers’ and the House’s time to amend it by regulations later, might it not be more efficient to add to this list now? He could add things like veteran cards and other pieces of ID currently available for those wishing to vote. He could do it now with a stroke of his pen.

[Gregory Stafford]

I have a simple question. Obviously, “amend” can mean either “increase” or “decrease”. The Bill lists the following ID cards:

“(a) a passport,

(b) a UK driving licence,

(c) a driving licence issued by any of the Channel Islands or the Isle of Man,

(d) a European Union photocard driving licence, or

(e) an identity card issued by the Proof of Age Standards Scheme”.

I assume that a passport, a UK driving licence, or a driving licence issued by the Channel Islands or the Isle of Man is unlikely to disappear. I have no idea, but I suspect that a European Union photocard driving licence is not going to disappear.

[Gregory Stafford]

My hon. Friend tempts me, but I am not going to respond. I suppose the only one that the Minister would consider removing would be the proof of age standards scheme card, if it were somehow changed or amended. Will he confirm that he is not looking to reduce the numbers?

[Dr Johnson]

One point to add is that individuals with certain disabilities may not have a driving licence, because their disability makes them ineligible to drive. The options available to them are quite substantially restricted, because most of the options on the list are forms of driving licence. Has the Minister assessed whether those with disabilities are more or less likely to have the documents listed, and is he happy that those with disabilities who wish to buy age-restricted products can do so?

[Andrew Gwynne]

We have already discussed at length the Government’s intentions to have a robust but workable system that does not overburden retailers, but enables them to have the confidence that the people to whom they are selling their products meet the required age of sale. I have already discussed and set out the reasons for the list of ID cards.

Of course, most of the forms of ID are things that most people have, or they are able to get a PASS ID card. Those are commonplace for people who are currently under the age of sale for a variety of products, and that is one form of ID that they can purchase if they do not have any other forms of ID. There is also the defence for retailers that they took all reasonable steps, which might involve their looking at a form of ID other than those set out in the legislation, such as veteran cards, which we have already spoken about at length. That remains the case.

I want to give a bit of background on how the list came about. My understanding is that in the previous incarnation of the Bill there was not a list of forms of ID. That came in for criticism by the then Bill Committee, which thought that there ought to be a list. That is how we have ended up with the list that we have now.

[Dr Johnson]

Is the Minister suggesting that if a shop worker or retailer selling an age-restricted product to an individual saw a form of ID that is not listed in part 3 but which they were convinced was a real and genuine certification of age, they could use that instead?

[Andrew Gwynne]

That is the reasonable defence that we have already discussed under earlier provisions of the Bill.

[Dr Johnson]

So why is a list necessary? Why not just say “as long as they have taken reasonable steps to get the ID”?

[Andrew Gwynne]

If the hon. Lady lets me finish my contribution, she might get an answer that she likes. I have already had discussions with my officials about how we have less ambiguity in relation to the ID. The list was put in for the reasons that I stated. The previous iteration of the Bill did not have a list and was criticised by members of the then Bill Committee because it was too vague. We will perhaps come back at a later stage with an amended proposal.

I hope the hon. Lady recognises that her point has been made very well and that my officials and I are in full listening mode. We hope to reassure members of this Committee, probably on Report, that we can strengthen this element of the Bill—we do not want to weaken it—so that there is no ambiguity over ID. We will have a robust mechanism for retailers so that they have confidence in what is and is not an acceptable form of ID. We will get this right. I am determined that we will get these measures right and that they will be enforceable.

On the ability to add or remove from the list, should that be necessary, it will be future-proofed. However we define the requirements on identification, whether it is as it currently stands or as it changes, the way we do ID will change. In my relatively short lifetime—I am only 50—technology has moved on apace and forms of identification have changed. Who knows how things might change over the next 50 years? We have future-proofed much in the Bill against the tobacco and vaping industry being able to find another route through to sell its goods to the next generation. We are putting roadblocks in place for all those mechanisms. We also need to make sure that the enforcement mechanisms are fit for purpose for the future.

I hope I can reassure the hon. Member for Farnham and Bordon that the intention is not to make it easier to escape the ID requirements or make it harder for people to prove that they are of legal age. Perhaps, at some stage, certain ID mechanisms will become obsolete and we will need to remove them, but this is about adding new ID to the list so that as new forms of identification become available that we have not even thought of, the Bill will be future-proof. We are not restricting ID to passports and drivers’ licences that we might not even have in 50 years’ time. I hope the hon. Member accepts that explanation, and I hope that Members understand that we are in listening mode. We are looking at what constitutes applicable ID, so that clarity will be there for the retail industry on what applies and what does not.

Question put and agreed to.

Clause 46 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)

Tobacco and Vapes Bill (Ninth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 21st January 2025 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clauses 66 and 134 stand part.

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

Good morning, Sir Roger. It is a pleasure once again to serve under your chairmanship on this important Bill.

Clause 47 is a somewhat standard clause protecting the Crown, providing that the Crown cannot be criminalised by the Bill, but the Bill does bind the Crown, which essentially leads to the position in which the courts can say that if the Crown commits an act or omission against or in breach of part 1 of the Bill, such an action may be unlawful. There was one question that I asked the Minister in relation to the Crown and to which I do not think we got a clear yes or no answer, although that is perhaps not unusual for this Government. The Minister will know that the House, despite its exemption from the smoking ban drafted by the Labour Government in the early 2000s, has a record as being one of the first places to have a no-smoking area. When Parliament—more precisely, the House of Commons—sat in St Stephen’s Hall, it was so smoky in there that Members could not see one another properly, so it was decreed that there would be a snuffbox for Members’ use at the entrance to the House of Commons.

That snuffbox exists today and is, I believe, used by a small number of Members now. It is occasionally used by a Member who wants to put it on record in their own mind that they have tried it—that does not include me. My question is this. With the Houses of Parliament being a royal palace, will the snuffbox still be allowed? I know that the Doorkeepers are interested to know whether they will be able to keep the snuffbox at the door, because the top of the box has on it a brass plaque that is engraved with the name of the current head Doorkeeper. It would be interesting to know whether the tradition can continue.

My other question on clause 47 is this. I presume that it covers England, Wales and Northern Ireland because there is not separate provision for Northern Ireland. I would be grateful if the Minister indicated whether that is the case.

Clause 66, entitled “Crown application of 2010 Act”, says:

“In section 36 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3)…in subsection (3), after “on the application” insert “of the Scottish Ministers or”.

I had a little look at the Act to which clause 66 refers, and section 36(1) of the Primary Medical Services (Scotland) Act says: “This Part”—part 1— “binds the Crown.” Section 36(2) makes the Crown not criminally liable if it does breach, which is similar to clause 47. Section 36(3), with this insertion, will provide that “the Court of Session may, on the application of the Scottish Ministers or of the council in whose area the contravention is alleged to have taken place, declare unlawful any act or omission of the Crown which constitutes such a contravention.” For reference, the Court of Session is Scotland’s supreme court, which I am sure you know, Sir Roger. It has been Scotland’s supreme civil court since 1532 and sits in Parliament House in Edinburgh. Section 36(4) makes it clear that although the Crown itself is not exempt but cannot be criminally liable, public servants of the Crown can be, and are, covered by the relevant provision

“as it applies to other persons.”

Subsections (1) and (2) of clause 134 are similar to those in clause 47, in that subsection (1) binds the Crown and (2) makes the Crown not criminally liable. Subsection (5) is also the same, stating that subsection (2) will not affect the liability of persons in service of the Crown, so they remain criminally liable. However, clause 134(3) and (4) are slightly different from the measures in clause 47, in that they have a somewhat broader scope.

Subsection (3) provides that the High Court in England and Wales or Northern Ireland, or the Court of Session in Scotland, can declare the act or omission unlawful, so this is a UK-wide clause, unlike clause 47. Subsection (4) makes it clear that the Court of Session in Scotland can be applied to by either Scottish Ministers, in keeping with clause 66, or a local weights and measures authority. What clause 134 does not do, as far as I can see, is explain who can make such an application in England, Wales and Northern Ireland, so I would be grateful if the Minister answered that question in relation to these measures.

[Sarah Bool (South Northamptonshire) (Con)]

It is a pleasure to serve under your chairmanship, Sir Roger. I was interested by a point that my hon. Friend raised, particularly about the snuffbox inside the House of Commons itself. I think the Minister previously made the point that although the rules technically do not apply because this is a royal palace, we do apply them by convention—so there is now no smoking in the Smoking Room. However, it raises an interesting point in terms of enforcement, if they were to ban snuff in the future, about whether the Doorkeepers would be expected to be doing their ID checks as Members go through in many years’ time. I was just intrigued about the point about how we are going to apply it here. It is obviously easier with the ban on smoking at the moment—you do or you do not—but it will be interesting to see how we apply it to the to the Doorkeepers going forward.

[Dr Johnson]

My hon. Friend makes a very interesting point about how the snuff is given out. At the moment, the snuffbox sits with the Doorkeepers near the No Lobby entrance, and it is available to Members. Obviously—or perhaps not obviously—there is no charge to Members. In fact, my understanding from the Doorkeeper who had the snuffbox last week is that the stuff that they have currently was provided by the BBC—[Interruption.] I can see that is a surprise; it was a surprise to me too, but that is where I was told it came from.

It brings into question the earlier clauses that relate to sale, because clearly the Crown may purchase it—I suppose the BBC is funded by taxpayers—and it is in a royal palace, which is a Crown site rather than a retail site, and it is not being sold to Members. I wonder whether the Minister has had time to consider that.

[Jack Rankin (Windsor) (Con)]

May I put a question? Perhaps the shadow Minister knows, but who is paying for the snuff ordinarily? Is it the Doorkeepers, out of their own pockets, or is there some kind of taxpayer kitty? I do not think the latter really should apply.

[Dr Johnson]

That is a really interesting question. My understanding, as I said, is that the most recent supply was provided by the BBC—I do not know how recently, by the way. I agree that the taxpayer should not be funding the supply of snuff for Members. To me, that is an undesirable thing to do, but clearly it would not be appropriate for the cost to come out of the Doorkeepers’ pockets. Perhaps there is a Members’ fund of some sort for Members who like to participate in such a habit and would wish to ensure that the supply is provided.

I am also not sure about quite how expensive this stuff is. Having never bought it or used it, I have literally no concept of whether this is an expensive item to buy a box of. However, my understanding, from the Doorkeepers, is that not terribly much of it is used, so it stays there for quite a long time. There are a few Members who use it regularly, and, like I said, many Members who use it just the once, almost to check that it is still there. As much as anything else, it is a tradition of the House and I would be interested to know whether that tradition will be able to continue under these clauses.

[Gregory Stafford (Farnham and Bordon) (Con)]

It is a pleasure to serve under your chairmanship, Sir Roger. Clause 47 asserts that part 1 of the Bill and any regulations made under it bind the Crown, but makes it clear that the Crown is not criminally liable under those provisions, as my hon. Friend the Member for Sleaford and North Hykeham said. Instead, acts or omissions by the Crown can be declared unlawful by the High Court. The key Government implication for this clause is ensuring accountability. By binding the Crown, clause 47 ensures that the Government are not exempt from adhering to the same standards and regulations that they set for others, which is entirely appropriate and demonstrates a good commitment to transparency and fairness.

There is also a symbolic commitment by the Crown to public health. Including the Crown in these provisions sends a strong signal. The Government recognise the urgency of tackling public health issues and the issues associated with tobacco and vaping, and the Opposition support that wholeheartedly. When we legislate in this House, we need to ensure that the public feel that we are legislating not only for them, but for ourselves as well. Given that the Bill now applies to us, this clause strengthens public confidence in its objectives.

On the role of judicial oversight, clause 47 enables the High Court to declare acts or omissions unlawful, which ensures that there is a mechanism for oversight. That preserves the rule of law and offers a balance of powers. However, there are some potential challenges to this clause. While the Crown is bound by the legislation, clause 47 explicitly exempts it from criminal liability, as far as I understand. Some may argue that that creates an imbalance, as individuals and private entities remain subject to prosecution whereas this House does not have criminal liability. Can the Minister clarify whether that is the case?

On practical enforcement, applying the legislation to the Crown could raise questions about how enforcement agencies would address non-compliance in Crown-operated facilities, such as this House, Government offices, military bases, and so on. Can the Minister let us know how law enforcement agencies, trading standards and the police would enforce the Bill on Crown properties? Granting the High Court jurisdiction to declare Crown acts unlawful could increase its workload. What discussions has the Minister had with the Lord Chancellor and the Ministry of Justice on overburdening the courts with such matters?

Clause 66 amends the Crown application of the Tobacco and Primary Medical Services (Scotland) Act 2010, ensuring that its provisions extend to Crown entities within Scotland. That amendment reinforces the principle of equal application of public health laws. The key implications of this clause are to do with consistency across the jurisdictions, as we have talked about on other clauses. Extending the application of the 2010 Act to the Crown entities ensures that public health measures are uniformly applied across Scotland, irrespective of whether the premises are privately owned or Crown-owned.

The clause also enhances legal cohesion. Aligning the legal obligations of the Crown with those of private entities enhances the coherence of Scotland’s public health framework, reducing the ambiguities that might arise were this clause not in the Bill. The clause also promotes accountability. By amending the 2010 Act, it eliminates any loophole that might allow Crown entities to operate outside the scope of the tobacco control measures. However, there are some challenges around what I would describe as intergovernmental co-ordination—that is to say, co-ordination between the Westminster Parliament and the offices and authorities that act for it, and the devolved Administrations.

Implementing these provisions will require significant co-ordination between the Department of Health and Social Care in the UK and the relevant Ministries and Departments in the devolved Administrations. I was heartened by what the Minister said about cross-devolved-Administration working. It would be good to know whether that continues to be the case on these provisions. As we all know, working across England, Wales, Scotland and Northern Ireland, with their various different bodies, does create challenging and resource-intensive actions, due to the fact that they all operate slightly differently and have slightly different thresholds for legal prosecution. As my hon. Friend the Member for Sleaford and North Hykeham has said, when it comes to charging, there are different levels of fine and sentencing in the different administrations. While health is a devolved matter, this clause’s intersection with those reserved powers could prompt debate about the limits of legislative competence between those authorities.

Clause 134 is the Crown application of advertising and sponsorship restrictions and extends advertising and sponsorship restrictions under the Bill to Crown bodies.

[Dr Johnson]

My hon. Friend makes the point, which I had not raised earlier, that clause 134 applies to part 6, on advertising and sponsorship. Clauses 4 to 7 and 66 essentially apply to part 1. We do not appear at this time to be discussing the other parts as well, so presumably the Crown is bound in a similar way by each of those.

[Gregory Stafford]

I make the same assumption as my hon. Friend, given what I have read of the Bill. It would be useful if the Minister clarified that matter. It would be appropriate to ensure that this does cut across all other parts of the Bill.

Clause 134 is critical in ensuring that the Crown entities adhere to the same advertising standards as private organisations. We need to have fair competition. It would be a nonsense to say that people could not advertise vapes from a commercial point of view, but that the Crown would be able to advertise. I cannot imagine what that might look like—I doubt Windsor Castle will be emblazoned with a banner advertising vapes, or that Buckingham Palace will fly a tobacco flag, but one never knows. However, it is important that this clause does cover the Crown as well to ensure that there is a level playing field, and to prevent the Crown entities from gaining an unfair advantage through less stringent regulations.

[Dr Johnson]

In a previous sitting I raised that in the last couple of years there have been events within Parliament at which free vapes were given out to Members and staff. Would this clause, given that it applies to the Crown, extend to all palaces? Could such events also still continue?

[Gregory Stafford]

My reading of this clause is that those events will be restricted under this clause and clauses 66 and 47. It would be useful if the Minister clarified whether or not that is the case. If it is not, would he consider inserting a provision to ensure that it is, either later in our discussions in Committee or on Report? I do not think the public will have any time for us in this place if we regulate those outside but do not hold the Crown Estate and Crown authorities to the same standards.

The unified public health messaging in this clause is helpful. Extending the restrictions to Crown bodies strengthens the overall impact of the Bill, ensuring that the advertising provisions are consistent with the public health messaging that we are putting out across the country. It prevents mixed signals. Allowing the Crown bodies to advertise tobacco or vaping products would undermine the Bill’s whole objective. Clause 134 ensures that the Government’s stance and the stance of all Members of the House of Commons present here is not contradicted by its own entities, such as the Crown Estate.

[Dr Johnson]

Is it not also the case that the Crown is extremely unlikely to wish to sell tobacco products, vaping products, herbal smoking products or indeed anything else covered by the Bill, or to advertise them, since members of the royal family attribute such importance to public health and have, sadly, suffered from ill health themselves in recent times? They have done a lot of work with various charities in relation to health, including on cancer and other conditions, so it seems unlikely that these provisions would be required.

--- Later in debate ---

[Gregory Stafford]

I very much hope there is no difference, and that is precisely my point: we need consistent enforcement across the piece—across the country—in line with the restrictions we already have on the sale and advertising of other items. That does not take away from the point that doing that will be a very complex procedure. As we are moving towards a tobacco-free generation, it would be helpful if the Minister could let us know how that enforcement will be done across Crown entities and the Crown Estate.

The second point is around the legal ambiguities. Applying advertising restrictions to Crown entities might create legal ambiguities, particularly where such entities operate under multiple regulatory frameworks, which goes back to the point made by my hon. Friend the Member for Windsor about who might be enforcing them and where.

The final point is about resource allocation. Ensuring compliance with advertising restrictions may require additional resources both within Crown entities and among enforcement agencies. To be frank, I do not know how current licensing laws are enforced here in the Houses of Parliament, for example, but if we bring in this Bill, which I very much hope we do, there may be some resource allocation within the Crown for that.

The inclusion of clauses 47, 66 and 134 in the Bill underscores its commitment to governance and legal fairness. However, as I said, their successful implementation hinges on addressing several broader considerations. First, there is what I call enhanced intergovernmental and interparliamentary collaboration. Effective implementation of these clauses will require close collaboration between UK-wide and devolved authorities. Establishing clear channels of communication and joint enforcement mechanisms will be crucial.

The second consideration is transparent compliance frameworks. The Government should develop transparent frameworks in order to monitor and enforce compliance within Crown entities. Those frameworks should include clear guidelines, reporting requirements and accountability measures. I do not expect there to be a vast burden on the judiciary but, as I mentioned, we may need to address any potential increases in judicial workload. Additional resources should be allocated to the High Court and other relevant judicial bodies to ensure that cases related to Crown compliance are handled efficiently and quickly.

Finally, there needs to be a public awareness campaign. Raising awareness about the application of the clauses can help to foster public support for the Bill by demonstrating to the public that we in the Houses of Parliament and across the Crown Estate are being held to the same standards.

[Dr Johnson]

My hon. Friend is making several good points. It is important that the law is applied equally to all. He may remember that when previous legislation was brought in around tobacco advertising, an exemption was made for Formula 1. It was not clear why such an exemption was made, but I believe that a substantial donation had been received around that time by the Labour party—I am sure the Minister will correct me if I am wrong. That was harmful at the time to trust in equality, so it is important that everyone—from His Majesty the King to every one of his subjects—has the same law applied to them.

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[Jack Rankin]

Government Members will be delighted to know that I do not have quite as much content as my hon. Friend the Member for Farnham and Bordon. However, I will make two points, and I seek some clarification on the second point.

As a new legislator and a non-lawyer—I know that there is an overwhelming majority of new Members in the room—my question is around the Crown. To me, the Crown seems quite a nebulous concept. We often take it to mean the state, but the shadow Minister, my hon. Friend the Member for Sleaford and North Hykeham, talked about clause 47 relating to the Crown very much in the context of this place. I do not think this is a new message to any politician, new or old, but our constituents seem to believe that different rules apply to us, in public life, than apply to them.

[Dr Johnson]

Further to what I said to my hon. Friend the Member for Farnham and Bordon, my understanding is that in 1997, Bernie Ecclestone, the Formula 1 chief at the time, donated £1 million to the Labour party. The donation became public knowledge in November that year, after the Labour Government had announced that Formula 1 would be exempt from the ban on tobacco advertising, which had been a key plank of the Labour party’s election manifesto. That exemplifies the importance of ensuring that donations do not affect policy and that we are all treated equally under the law.

[The Chair]

Order. We are starting to go a little wide of the subject under discussion.

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[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

Perhaps the hon. Lady will let me finish. The measures are standard practice for any Bill, but Members have put some questions to me, so I will reassure them about some of the issues they have raised. But before doing so, I will give way to the shadow Minister, who has had plenty of time to talk about this matter.

[Dr Johnson]

I thank the Minister for giving way. I want to echo the point made by my hon. Friend the Member for Farnham and Bordon that the purpose of line-by-line scrutiny is to do just that: to go through the Bill line by line. The Minister’s job might be to get things on the statute book for his Prime Minister and Cabinet and for the Government in which he serves, but surely he wishes to ensure that the Bill he is leading on is in the best possible condition. That is the purpose of the line-by-line scrutiny that we are in Committee to do.

[Andrew Gwynne]

I absolutely do with that. The point I am making is that we have just over another week to deal with these matters. If we get to the end of next week not having considered important chunks of the Bill because we have wasted time on silly little matters that appertain not only to the whole of this legislation, but to other legislation as well, and on fairly standard clauses relating to how legislation deals with the Crown, that will be on His Majesty’s loyal Opposition.

I will make progress and answer the points that were made. Why are clauses 47 and 137 necessary parts of the Bill? The presumption is that legislation does not apply to the Crown unless expressly stated as doing so. The clauses clarify that provisions in parts 1 and 6 of the Bill, and in the regulations made under them, bind the Crown. They ensure that all bodies and persons acting as public servants of the Crown are held to the same standards as businesses and private citizens in England and Wales. They ensure consistent application of the Bill across the public and private sectors.

Does the Bill bind Parliament? Yes, it does. Parliament was consulted and was content with clause 159, in particular, being included. We have already had the debate about snuff, and it will be up to the House authorities to determine the rules of the House. There is absolutely nothing to prevent there being a box at the entrance to the Chamber with the latest chief Doorkeeper’s name engraved on it—that tradition can remain for evermore—just as we have a Smoking Room, which we can no longer smoke in but which is still called the Smoking Room. That is tradition. I really do not know why Members are overthinking these matters.

Members asked why there are differences between Crown applications in the devolved Administrations. As we have already discussed, the Bill brings together legislation from across the four nations. I believe it is a triumph, because it shows the close working relationship between the Labour Government and the devolved Administrations, irrespective of the parties in power in Cardiff Bay, Holyrood and Belfast. Because health is a devolved matter, and because the Bill builds on legislation dating back nearly 100 years in some cases, there are some differences in the provisions for each nation.

Members asked why only some parts of the Bill apply to the Crown. The fact is that clauses 47 and 134 explicitly provide that parts 1 and 6, and any regulations made under them, apply to the Crown. Other measures in the Bill also apply to the Crown without the Bill’s explicitly stating so because those provisions amend existing legislation, and the Crown application reflects whether the underlying legislation applies to the Crown.

There is an established precedent that smoke-free places legislation does not apply to the Crown in England and Wales, and that it is the responsibility of the Department responsible for running the relevant part of the Crown Estate to determine what is appropriate. That is precisely what the House of Commons did when it determined that the smoking ban would apply to the royal Palace of Westminster. The same is true of all the measures in the Bill.

Members asked which parts of the Bill will apply to the Crown. Part 1 and regulations made under it apply to the Crown by virtue of clause 47.

The hon. Member for Sleaford and North Hykeham asked about Northern Ireland. Part 3 amends existing legislation in Northern Ireland, and it does not apply to the Crown. That is an existing precedent, which the Department of Health in Northern Ireland wishes to retain. Part 2 amends the existing legislation in Scotland and part 1 amends the legislation in England and Wales. That is why there is a different approach to different parts of the United Kingdom in respect of the Crown.

Members asked why we need clause 66, the technical clause relating to the Scottish Government. It is because it corrects an omission in the Tobacco and Primary Medical Services (Scotland) Act 2010, and it is being made at the request of the Scottish Government. It is a convention that in an Act of the Scottish Parliament those responsible for the enforcement of the legislation are explicitly identified as being able to make an application to the Court of Session for the purposes outlined in the clause. Scottish Ministers may take over enforcement under the 2010 Act, so it is appropriate that they are listed alongside local authorities, which is what clause 66 achieves. The clause inserts a provision into the 2010 Act, which is Scottish law. There are no impacts on the law in England, Wales or Northern Ireland. The clause is narrow and relates only to provisions in part 1 of the 2010 Act.

Members asked about overburdening the court. We are working the Ministry of Justice to ensure that the Bill does not introduce a significant burden. This is about regulatory change—and, look, most citizens are law abiding and will follow the law.

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

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[The Chair]

With this it will be convenient to discuss the following:

Clauses 49, 60, 63 and 64 stand part.

Schedule 8.

Clauses 83, 112, 113, 132 and 135 stand part.

[Dr Johnson]

This is quite a chunky group of clauses. Clause 48 provides a series of definitions that are to be used to interpret part 1. That is important; if the law is to be enforced, we must understand what the law means by each phrase it uses. The phrase “cigarette papers” is self-explanatory. It means anything that is

“used for encasing tobacco products or herbal smoking products for the purpose of enabling them to be smoked”.

We talked about cigarette papers previously. Likewise, “herbal smoking product”

“means a product consisting wholly or partly of vegetable matter and intended to be smoked but not containing tobacco”.

That is fairly straightforward.

The phrase “medical device” is important, and I will explain why in a moment. The clause refers to the Medical Devices Regulations 2002 (S.I. 2002/618), which state that a medical device is

“any instrument, apparatus, appliance, material or other article, whether used alone or in combination, together with any…software…necessary for its proper application, which—

(a) is intended by the manufacturer to be used for human beings for the purpose of—

(i) diagnosis, prevention, monitoring, treatment or alleviation of disease,

(ii) diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap,

(iii) investigation, replacement or modification of the anatomy or of a physiological process, or

(iv) control of conception; and

(b) does not achieve its principal intended action in or on the human body by pharmacological, immunological or metabolic means, even if it is assisted in its function by such means,

and includes devices intended to administer a medicinal product”—

this is part of why it is relevant—

“or which incorporate as an integral part a substance which, if used separately, would be a medicinal product and which is liable to act upon the body with action ancillary to that of the device.”

That is relevant to clause 10 onwards, on nicotine products.

In evidence on 7 January, Dr Laura Squire, from the Medicines and Healthcare products Regulatory Agency, told the Committee that one vape product received an MHRA medicines licence in 2015, but was never marketed. Theoretically, others could be marketed in the future. They would be exempt under the definition provided in clause 48, which I have just explained.

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[Andrew Gwynne]

I thank the shadow Minister for the points she has raised. Definitions are needed to ensure that the legislation can be interpreted with an appropriate understanding of the technical terms, and we have opted to take a co-ordinated approach to definitions across the four nations, which will hopefully ensure clarity for the public, retailers and enforcers.

As we know, nicotine is a highly addictive drug, particularly for adolescents whose brains are still developing. As mentioned in the Bill, a nicotine product means any device, part of a device, or substance containing nicotine that is intended to deliver nicotine to the human body. There are currently no age of sale or advertising restrictions for products such as nicotine pouches—and, unlike vapes, there are no set nicotine limits. Nicotine strengths can vary from 2 mg per pouch to, in some cases, 150 mg or more. Like vapes, they can come in a variety of flavours and colourful packaging designed to appeal to children. The use of nicotine products such as nicotine pouches is increasing, particularly among young men. As we are committed to doing everything we can to protect children from becoming addicted to nicotine, it is only right to take action to control these products.

[Dr Johnson]

On the point about nicotine pouches, it is of concern that they may be the next way in which this industry seeks to make our young people addicted to nicotine. We have seen in places such as Sweden a plethora of these products, which are now expanding across the UK as well. I know the Minister will be looking at some proposals to restrict the amount of nicotine in the pouches. When he does so, will he consider not just how much nicotine is in them compared with a cigarette, but how much is absorbed into the body? The amount in a cigarette that is absorbed as a proportion is much lower than that of a nicotine pouch.

[Andrew Gwynne]

Those are important considerations for when we are developing the regulations, and I take precisely the same view as the shadow Minister. These things have to be part of that overall analysis and equation when we come to look carefully at the regulations.

The shadow Minister asked a number of questions. First, she asked whether a provisional driving licence would be applicable, and the simple answer is that it would. She also asked whether there is a loophole here with medicinal products, and whether children could be restricted from purchasing vaping substances for a future vape that may have medicinal approvals. Of course, it is important to point out to the Committee that to date no such vape exists. As per all licensed medicines, if one existed, it would be regulated by medicine regulations, which are subject to higher standards set by the MHRA.

The health advice is that nicotine replacement treatment, for example, is most effective when provided alongside expert advice. That is really important, and that is why we are putting money into smoking cessation services and why measures in the Bill will permit the distribution of free vapes by the NHS and public health authorities; we think that is entirely appropriate.

There is no age of sale restriction for nicotine replacement therapies. In extreme circumstances, for example, were there a MHRA-approved vaping device that met the criteria of a medical device, I suppose the vaping liquid could be prescribed to a child if that were appropriate. That is all hypothetical because there is not such a device approved by the MHRA; therefore, there is not the loophole the hon. Member for Sleaford and North Hykeham thinks there might be, although she is right to raise it.

[Dr Johnson]

To clarify the point about there being no device available, that had been my understanding as well, but Dr Laura Squire from the MHRA said in evidence to the Committee that in 2015 a vape had been approved for medical use, but had never been marketed. Has the licence for that product lapsed in some way so that it is no longer available?

[Andrew Gwynne]

I do not know, but I will ensure the Committee is informed by officials. My point is that it is not marketed. Therefore, there is no medical device on the UK market, and all that is currently hypothetical. We have to legislate for the future, which is why I said that nicotine replacement therapy is the most appropriate form of treatment for children. Were there a device at some stage in the future that was available for the NHS to use in a medical context—as opposed to swap to stop—then it would be appropriate for a doctor to be able to prescribe that should they wish to. However, that would be within a highly regulated medical setting, as opposed to just getting liquids from a vape shop.

[Dr Johnson]

Clauses 48 and 49 exempt the medicinal product and medical devices. I understand why the Minister has done that, but how is he going to ensure that the industry does not find ways of making the nicotine replacement products that are currently legal and used only for medical purposes lemonade, gummy bear or unicorn milk-flavoured, and therefore attractive to children? The Committee has heard repeatedly about the way the industry behaves.

[Andrew Gwynne]

We absolutely have thought about that, which is why the measures in the Bill and the powers it gives to Ministers across the jurisdictions of the United Kingdom enable regulations to be made to ensure that we always keep up with where the industry is going and—importantly—where the evidence is going. This is not just about where the industry might go; it may be that at some stage in the future there is new medical research showing that even the levels we are talking about lowering to have safety issues, and we will need to react to that.

That is why I will defend the way the Bill has been drafted, ensuring that Ministers will be able, at any stage in the future, to return to Parliament or the devolved legislatures to seek changes to secondary legislation to ensure that the measures are always relevant to the circumstances of the day.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

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[The Chair]

With this it will be convenient to consider clause 53 stand part.

[Dr Johnson]

Clause 52 repeals the offence of purchasing tobacco under 18 in Scotland, as per the Tobacco and Primary Medical Services (Scotland) Act 2010; clause 52(2) would omit section 5, concerning purchasing tobacco products by people under the age of 18, from the 2010 Act. This is a reasonable thing to do, because clause 50 replaces the current age of sale with the rolling age of sale and extends to those over 18.

However, subsection (3) of clause 52 is interesting, because it refers to the presumption of products in the contents of a container. Section 33 of the 2010 Act essentially says if a person has seen someone sell a packet of cigarettes to somebody, and the person can clearly see the packet of cigarettes, they do not have to prove that it contains cigarettes; they just have to see it. I suppose that prevents people from the defence of saying that they were selling empty boxes, that it was just role play, that the boxes only contain sweets, or that they do not really contain tobacco—they are just boxes. In some respects, those are fairly implausible defences, but perhaps those defending them could prove reasonable doubt on that basis. Section 33 presumes that cigar boxes contain cigars, for example, or that cigarette boxes contain cigarettes; in the context of their being bought that seems fairly obvious, but it is interesting that the Scots felt it necessary to have this section previously.

I respect that this is a devolved matter and the Scots’ wishes to amend section 33 of the 2010 Act, but could the Minister perhaps explain, from the conversations that I am sure he has had with Ministers in Scotland, why the Scots introduced it in the first place? Was it perceived that it might be an issue, or was it actually an issue that people were pretending or suggesting that what was in boxes of cigarettes was not cigarettes, and therefore, “It’s not illegal to sell a box; it’s only illegal to sell the cigarettes in it, and you can’t prove they were there, your honour.”?

Why has the Minister not chosen to replicate such a provision in England? Although I respect what he says about devolution, and the Scots have the competency to do as they wish in Scotland, in England it is up to him and he has the levers of power. Can he say in the rest of the UK where this defence has been used before? Has section 33 of the Tobacco and Primary Medical Services (Scotland) Act 2010 ever been used as a defence in litigation? If it has, was it successful? If it was, why does he not want to replicate the provision in England? It is a somewhat peculiar situation.

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[Andrew Gwynne]

In answer to the shadow Minister, clause 52 will repeal the offence for someone under the age of 18 in Scotland of buying or attempting to buy a tobacco product or cigarette papers. It means that it will no longer be an offence for someone under the age of 18 to buy or attempt to buy those products in Scotland. That is because Scotland is the only part of the United Kingdom in which it is an offence for those under 18 to purchase tobacco products. The repeal will align the legal approach across the whole United Kingdom. It is being done after consultation and with the full consent of the Scottish Government. With the change to the age of sale, it was no longer deemed necessary to retain this provision, as the age-of-sale restrictions apply to the sale and not the purchase of tobacco products.

Clause 53 will repeal the power for constables in Scotland to confiscate tobacco products or cigarette papers from someone in a public place whom they suspect to be under 18. Both provisions were originally made in the Tobacco and Primary Medical Services (Scotland) Act 2010. Repealing them will ensure that legislation in Scotland is in line with legislation in England, Wales and Northern Ireland. With the change to the age of sale, it was no longer considered necessary to retain the provision, as age-of-sale restrictions apply to the sale and not the purchase of tobacco products. As we have already debated, that will ensure that we do not criminalise children.

Question put and agreed to.

Clause 52 accordingly ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.

Clause 54

Extension of tobacco legislation to herbal smoking products

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

[Dr Johnson]

Clause 54 will extend tobacco legislation to cover herbal smoking products, which are products made from plant material and intended for smoking that do not contain tobacco. It will amend section 4 of the Tobacco and Primary Medical Services (Scotland) Act, which governs the sale of tobacco products to individuals under 18, by inserting “herbal smoking product” after “tobacco product” in subsection (1). This will mean that the sale of herbal smoking products is subject to the same restrictions as tobacco products and is prohibited to persons under 18.

The clause will also amend section 4C of the 2010 Act, which deals with the sale of tobacco-related products by persons under 18, by adding “herbal smoking product” so that individuals under 18 are also prohibited from selling herbal smoking products. This is distinct from the ability to buy them, for which there will be a rolling age; it applies to the selling of these products.

The clause will also modify section 6 of the Act, which addresses the purchase of tobacco products on behalf of individuals under 18, otherwise known as proxy purchasing. It will amend subsection (1) by inserting “herbal smoking product” after “tobacco product”, making it illegal for anyone to purchase herbal smoking products on behalf of individuals under 18.

Finally, the clause will insert into section 35 a definition for herbal smoking products. This was covered in clause 48 and clause 1; clause 54 will add it to Scottish legislation. It specifies that a herbal smoking product is one that is made entirely or partially of vegetable matter and that is intended to be smoked, but that does not contain tobacco. Given our previous debate, these seem reasonable changes to make.

[Andrew Gwynne]

I will not detain the Committee on this question. As the shadow Minister says, these are reasonable changes to make and are in line with the clauses that we have just discussed.

Question put and agreed to.

Clause 54 accordingly ordered to stand part of the Bill.

Clauses 55 to 57 ordered to stand part of the Bill.

Clause 58

Possession of snus etc with intent to supply

Amendment proposed: 70, in clause 58, page 29, line 19, at end insert

“, save if it is a first offence.”—(Dr Johnson.)

See explanatory statement to Amendment 72.

Question put, That the amendment be made.

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[The Chair]

With this it will be convenient to discuss schedule 9.

[Dr Johnson]

Clause 65 introduces schedule 9, which will amend the Tobacco and Primary Medical Services (Scotland) Act 2010 to broaden the scope of the retailer register and make related provisions to include herbal smoking products, vaping products and nicotine products, alongside tobacco. The amendments that it makes aim to regulate businesses that sell those products in a similar way to tobacco products.

Essentially, in schedule 9, the key changes are as follows. There will be an expansion of the register: section 10 of the 2010 Act will be amended to require the Scottish Ministers to maintain a register of businesses that are selling tobacco, herbal smoking products, vaping products and nicotine products. It will ensure that all those categories are subject to the same regulatory framework as respects the register.

There is clarification within the schedule of a “registrable business”, which is now defined to include any businesses dealing with tobacco, herbal smoking, vaping or nicotine products. The term is used throughout the Act, ensuring that all relevant businesses are captured under the regulations.

The amendments that schedule 9 will make to section 11 of the 2010 Act require applicants to specify which type of registrable business they intend to operate at each premises —essentially, which products they wish to sell. Can the Minister confirm that that means that some businesses could register to sell some products but not others under the Act? Perhaps they could sell tobacco products but not nicotine products, or vice versa. The registration process will be updated to reflect those additions.

Section 12 of the 2010 Act, which deals with certifications and notifications, will be amended to require certificates of registration to specify the type of product that a business sells. Additionally, under section 13, businesses must notify the Scottish Ministers of any changes, such as if they no longer desire to sell a specific type of registrable product. The Act’s provisions concerning banning orders, offences and public inspection of the register will be updated to reflect the inclusion of herbal smoking products, vaping products and nicotine products alongside tobacco products.

In addition, schedule 9 will add new definitions, including of “herbal smoking product business” and “nicotine product business”, ensuring clarity in the application of the law.

[Andrew Gwynne]

I welcome the shadow Minister’s comments. Of course, health is a devolved matter. Scotland has a long-established and functioning register of tobacco and nicotine vape product retailers. The Bill will expand Scotland’s registration scheme to include retailers selling herbal smoking products and nicotine products. The Scottish Government’s view is that introducing a licensing scheme at this time would put undue pressure on local authorities and the retail sector in Scotland. In line with the Scottish Government’s tobacco and vaping framework, the technical infrastructure of the register is being improved, which has been welcomed by stakeholders. Each of the nations of the United Kingdom is taking forward an approach that best suits its population.

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[Dr Johnson]

Clause 84 is a short clause that extends the retail register provisions in Northern Ireland. It states:

“Schedule 10 amends the Tobacco Retailers Act (Northern Ireland) 2014 (c. 4 (N.I.)) to extend certain provisions about the registration of tobacco retailers so that they apply in relation to retailers of vaping products and nicotine products.”

Schedule 10 ensures that retailers selling tobacco products, herbal smoking products and cigarette papers are covered by the scheme.

[Andrew Gwynne]

As the shadow Minister says, the clause extends the existing registration scheme by expanding it to businesses that sell relevant products. The register will be expanded while the new licensing regulations are introduced, ensuring a stronger and consistent enforcement regime at all times.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 85 ordered to stand part of the Bill.

Schedules 11 to 13 agreed to.

Clauses 86 and 87 ordered to stand part of the Bill.

Schedule 14 and 15 agreed to.

Clause 88 ordered to stand part of the Bill.

Clause 89

Power of officer of Revenue and Customs to seize and detain snus etc

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

[Dr Johnson]

Clause 89 is such an important clause in that it forms a whole part of the Bill, part 4, by itself; whereas other parts contain multiple clauses, part 4 only contains clause 89. The clause deals with the power of a Revenue and Customs official to seize and detain snus, which the Bill defines as an oral tobacco product that

“is not intended to be inhaled or chewed”.

Hon. Members will remember that snus is a tobacco product that the Bill treats differently from all other tobacco products; there is a much heftier penalty for sale and a complete ban on manufacture. In line with the fact that it is dealt with differently from other tobacco products and that it will be illegal to manufacture and import, there needs to be provision for customs officials to deal with the snus if they find it.

Subsection (1) allows a Revenue and Customs officer to

“seize any relevant oral tobacco products that have been imported and detain them for no more than 48 hours.”

I presume that 48 hours is standard; the Minister may be able to expand on that. Any products seized and detained under this clause

“must be dealt with during their period of detention in such manner as the Commissioners for His Majesty’s Revenue and Customs may direct…For the purposes of calculating the 48-hour period mentioned…any period falling on a non-working day is to be disregarded.”

The Minister will be able to confirm, but I presume that is essentially saying that, if a product were seized on a Friday at 4.50 pm, they would get all of Saturday and Sunday and until late on the Tuesday to deal with the snus and would be able to seize it for that period.

The clause says that non-working days are Saturdays, Sundays and bank holidays; that is fairly straightforward. A relevant offence is an offence under clause 9 of the Bill in England and Wales, section 9C of the Tobacco and Primary Medical Services (Scotland) Act 2010, which is inserted by the Bill, and article 4G of the Health and Personal Social Services (Northern Ireland) Order 1978, which is also inserted by the Bill.

[Gregory Stafford]

The shadow Minister quite rightly asked the Minister why there is a 48-hour period; it would be helpful to understand if that is just a standard period. What I am not clear on is what happens during, or indeed after, that period. Is the 48-hour period for some kind of destruction of the illicit substance? Is it for investigation? If His Majesty’s Revenue and Customs for whatever reason breaches the 48-hour period, what recompense can the importer receive? Should they receive any kind of recompense, given that they are likely to be importing a banned substance?

[Dr Johnson]

My hon. Friend is right to probe the Minister on those questions. It is important to understand why things are chosen. The Minister has sometimes referred to things being chosen because that is the way they were before, but the writing of new primary legislation offers a not-frequent opportunity to change things that may not be working very well. When items are seized at the moment, is the Minister’s advice from his civil servants that 48 hours is an adequate period of time in which to deal with all the paperwork that presumably needs to be done? Is it too long, and could it be shorter if it needed to be?

The commissioners for His Majesty’s Revenue and Customs are responsible for dealing with the relevant oral tobacco product during the period of detention, but that will not prevent the importation of snus for personal use. Can the Minister explain why that is the case?

[Andrew Gwynne]

It is not illegal to consume snus in the UK—I got told off for pronouncing that in Mancunian as “snuss” earlier, but each to their own—or to possess it for personal use. Clause 89 is that is intended to form part of a robust legislative framework in relation to oral tobacco products, and specifically helps to enforce other provisions of the Bill that prohibit possession with intent to supply in the course of business. It is common practice for customs officials to seize suspected illicit goods at the border. That will now also be applicable to snus products imported into the UK. The 48-hour period is standard practice, but after 48 hours the enforcement agency is able to decide on what action it wishes to take. I hope that answers the points raised by the shadow Minister and the hon. Member for Farnham and Bordon.

[Dr Johnson]

I want to understand how a customs official would make such a decision. The Minister has been clear that it is not illegal to possess snus—I hope I pronounced that properly—for personal use. However, it is an offence to manufacture it under clause 7, to sell it or offer it for sale under clause 8 or to possess it with intent to supply under clause 9. How would the Minister quantify an amount for personal use? Under ordinary circumstances, one could say—