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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 (Fourth sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Andrew Gwynne]

It does, for the reasons that I have set out. I thank my hon. Friend for pointing to the impact assessment, because it sets out a very clear reversal of the current situation, in which the costs of tobacco to society, the individual, the economy and our health and care services are massive. In the future, that situation will be reversed—it will become a positive, not a negative—because people will be healthier and living longer. They will not be living with the comorbidities that are a direct consequence of tobacco use. They will be free from addiction. They will actively participate in the economy. That is why we are moving to smoke-free, rather than just shifting the age of sale to a fixed point and continuing to give tobacco companies that conveyor belt. If we did so, people would eventually reach 25 and the tobacco companies would be able to target them again—maybe not in as great a number, but we would have switched the conveyor belt back on.

I want that conveyor belt stopped for the next generation. That is what the last Bill did, to be fair, and it is what this one does. It is about protecting future generations from becoming addicted to nicotine and carrying the horrible burden of disease that is a direct consequence of all tobacco products. Breaking the cycle of addiction and disadvantage and allowing people to live healthier lives—that is true freedom. Let us be clear: there is no freedom in addiction. There is freedom in never being able to be sold tobacco and having a genuinely smoke-free UK. For that reason, I ask the shadow Minister not to press these Liberal Democrat amendments.

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

I certainly do not want to press the amendments to a vote, but it may be that other members of the Committee do.

[Dr Chambers]

On a point of order, Mr Dowd. I am not sure whether this is a point of order, and I am not sure how the other parties voted on this, but this was a non-whipped vote for the Liberal Democrats. It is not a Liberal Democrat amendment; it is an amendment from an individual MP. The entire Liberal Democrat health team certainly do not support the amendment to change the minimum age of sale to 25, and the majority of the Liberal Democrat party voted in favour of the Bill as a whole. I want to put it on the record that the Lib Dems are not in favour of the amendment.

--- Later in debate ---

[The Chair]

We now move to amendment 56. I remind hon. Members that I know Sir Roger today indicated a more lateral approach to debate, but I will only take that so far.

[Dr Johnson]

I beg to move amendment 56, in clause 1, page 2, line 9, 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 57, in clause 1, page 2, line 9, 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 59.

Amendment 67, in clause 50, page 25, line 34, at end insert—

“(ba) in subsection (5), at end insert ‘, save if it is a first offence.’

(bb) after subsection (5) insert—

‘(5A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 3 on the standard scale or a recorded police warning.’”

This amendment prevents penalties for a first offence of selling tobacco products to person under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.

Amendment 73, in clause 68, page 36, line 12, at end insert—

“, save if it is a first offence.”

See explanatory statement to Amendment 76.

Amendment 74, in clause 68, page 36, line 12, 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.”

See explanatory statement to Amendment 76.

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, 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.

--- Later in debate ---

[Dr Johnson]

Amendment 56 proposes a change to clause 1 and specifically targets the penalty provision for offenses under the sale of tobacco section on page 2, line 9. It suggests adding the phrase

“, save if it is a first offence.”

at the end of the current penalty clause, effectively modifying the penalties described for violations of the tobacco sale law. Under the legislation, as it is currently proposed, clause 1 specifies:

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

However, this penalty applies without any distinction to all offenders, regardless of whether it is their first offence or a repeat violation. Amendment 56 introduces an exception for first-time offenders, suggesting that they may receive a reduced or different penalty instead of the full fine that is typically prescribed.

[Jack Rankin]

Forgive me for my ignorance, but could my hon. Friend illustrate what levels 3 and 4 mean in practice and how they might read across to similar products, such as alcohol, so we can have some context for what she proposes?

[Dr Johnson]

My intention was to set out what these amendments seek to do and then to discuss the reasons why that might, or might not, be a good idea, and I will come to my hon. Friend’s very important point when I do so. The principle of amendment 56 is to bring in reduced or different penalties for those committing their first offence compared with those committing subsequent or repeated offences. This change acknowledges that businesses or individuals who commit an offence for the first time may not require the full penalty, but may require education or a form of leniency or mitigation. It separates first-time offenders from repeat offenders, offering an opportunity for compliance without the harshest penalties on the first offence. It could incentivise more careful compliance with the law, especially by businesses that are new or small, or are unfamiliar with or unintentionally violating the regulations on selling tobacco, herbal smoking products or cigarette papers.

Amendment 57, also within this group, proposes to amend clause 1, page 2, line 9 by adding a new subsection (4A), which specifically addresses the penalties for first-time offenders who admit guilt under the sale of tobacco section. This amendment introduces a more lenient penalty, stipulating that first-time offenders would be

“liable to a fine not exceeding level 3 on the standard scale or a caution.”

Under clause 1(4), as it reads without the amendment, a person who commits an offence under that section is liable to a fine not exceeding level 4 on the standard scale, regardless of whether it is their first offence. The addition of proposed subsection (4A), however, distinguishes and separates first-time offenders by offering a potentially reduced fine—level 3 instead of level 4—or alternatively a caution, which is a formal warning and a less severe still form of penalty.

The next amendment within this group, amendment 67, proposes an amendment to clause 50, page 25, line 34, adding two new paragraphs to subsection (5) and inserting new subsection (5A). Clause 50 is essentially a read- across of clause 1. There is understandable desire within Government to see the four nations of the United Kingdom having the same policy. That is simpler, it means that we can protect the health of people across the country, and it also makes it easier to enforce and manage the law. In Scottish law, the Tobacco and Primary Medical Services (Scotland) Act 2010 essentially provides Scottish tobacco regulations; clause 50 of the Bill thus alters sections 4, 4B, 6 and 8 of that legislation, so that the legislation in Scotland can essentially follow clause 1 in the rest of the United Kingdom. Amendment 67 is therefore designed to do to clause 50 what amendment 56 does to clause 1, introducing the phrase,

“, save if it is a first offence.”

to section 4(5) of the 2010 Act.

In doing so, it effectively exempts first-time offenders from the usual penalties set out in that section, which typically involve higher fines or penalties.

Secondly, amendment 67 introduces proposed new subsection (5A) to section 4 of the 2010 Act, specifying:

“A person who has admitted guilt of a first offence under subsection (1)”,

related to selling tobacco products to minors,

“is liable to a fine not exceeding level 3 on the standard scale”—

consistent with amendment 57—

“or a recorded police warning”,

which I understand is the equivalent of a police caution in the rest of England and Wales. This change allows a more lenient treatment of first-time offenders, in line with the approach seen in other amendments aimed at reducing penalties for first offences.

The level 3 fine is less severe than the typical penalty under the current system, which could be level 4, and the recorded police warning offers an alternative that serves as an official notice without a financial burden. The amendment applies specifically to Scotland rather than to the rest of the United Kingdom, and its discretionary penalty for first-time offenders is intended to focus on correction, compliance and education rather than simply punishment of offenders. It promotes a more rehabilitative approach for those committing what is, relatively speaking, a minor offence for the first time.

Amendment 73 to clause 68, by adding the words

“, save if it is a first offence.”

is designed to introduce a more lenient approach to individuals committing an offence under the clause for the first time. Again, clause 68 is essentially a read-across of clause 1 into Northern Irish legislation. Northern Ireland has its own legislation on tobacco control, which the clause will amend. It substitutes clauses such that we have the same rules for tobacco purchasing in England, Wales and Northern Ireland, making them harmonious across our country. The amendment would provide in clause 68, and therefore in Northern Ireland, what the Government seek to provide for the rest of the country, which is the rolling smoke-free generation legislation. The exemption would mean that those who commit an offence under the clause would not be subject to the usual penalties if it was their first offence.

Amendment 74 would add a new paragraph (4A) to article 3 of the Health and Personal Social Services (Northern Ireland) Order 1978, to specify that a person who has admitted guilt of a first offence under the clause is

“is liable to a fine not exceeding level 3 on the standard scale or a conditional caution.”

My understanding is that a conditional caution in Northern Ireland is similar to a police warning in Scotland and to a caution in England and Wales.

The intent behind the amendments is to provide a more lenient penalty for first-time offenders than for those who have committed the offence previously, in particular by allowing a fine capped at level 3 on the standard scale, which is obviously lower than level 4. Alternatively, there would be the option of a conditional caution, which means the opportunity for the offender to avoid a formal criminal conviction by complying with certain conditions, such as attending educational courses or engaging in community service. The original briefing suggested that we would discuss amendments 75 and 76 at this stage, but I understand that we are going to postpone those to the debate on clause 2, so I shall leave them for now.

I will talk about the effects of the amendments, but first I will answer the question my hon. Friend the Member for Windsor asked about what the standard scale is and what it means. On the standard scale, a level 3 fine has a maximum of £1,000 and a level 4 fine has a maximum of £2,500. Cautions are given to people over the age of 10 years who admit an offence and agree to be cautioned by the police; they do not amount to a criminal conviction, but they may appear on a Disclosure and Barring Service check, which is required for some forms of employment. The amendments speak to the proportionality and purpose of the penalties, which ought to be set at a level that is both a reasonable punishment and an effective deterrent. It is important to prevent crimes and to maintain the confidence of the public.

When we debate clause 1 later today, we will discuss further the challenges faced by shop workers implementing the provisions in the Bill; no doubt, we will also discuss who is liable for the fines. I invite the Minister to consider who he wishes to be responsible for them. Does he wish it to be the shop worker—the chap or lady working in the shop? Does he expect it to be the shop manager, the shift supervisor, the owner of the business or the chief executive of a major company? That is a relevant consideration when thinking about the proportionality of the fine. A fine of £1,000 may not deter a large supermarket chain, but it may well deter and be a substantial penalty for someone who works part time in a shop while working as a student. The size of the fine is a relevant consideration.

[Jack Rankin]

My hon. Friend might best be able to provide clarification. Perhaps I have misunderstood, perhaps this is a mistake or perhaps it is deliberate. I understand why each jurisdiction of the United Kingdom has to be taken separately, but do I understand correctly that in clause 68, which covers Northern Ireland, the suggestion is that it should be a level 5 offence, whereas in clause 1, which covers England, the suggestion is it should be a level 4 offence, and my hon. Friend is seeking an amendment to make it a level 3 offence in the first instance? Why would that offence be a different level in different parts of the United Kingdom? The Minister is frowning.

[Dr Johnson]

Which page is it?

[Jack Rankin]

It is the top of page 36. As I understand it, clause 68 makes the sale of tobacco a level 5 offence in Northern Ireland, and my hon. Friend is seeking to make the first offence a level 3 offence, but on page 1, clause 1(4) makes the sale of tobacco a level 4 offence. It seems that there is a an inequity there, which perhaps is deliberate or perhaps I have misunderstood. I support her opinion, but it seems that there is a difference between the different nations of the United Kingdom and I do not understand why that is the case.

[Dr Johnson]

I thank my hon. Friend for making that point. It brings us to the heart of the next part of my speech, which is the inconsistency between different parts of the United Kingdom. We will come on to other inconsistencies in further amendments to clause 1 relating to age verification processes. As for why there are differences in the legislation as drafted, I am afraid I did not draft it; the Minister did. Perhaps he will say whether that was intentional or whether he wishes to amend it later.

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

I just want to clarify the intention of my hon. Friend’s amendments, not to resile in any way from her clear point that she supports the Bill, but to clarify her feeling that the current level of fines and punishments within it are disproportionate, especially if they are going to be levied on a part-time junior shop worker, or perhaps even a Saturday person who is a minor themselves. I want to clarify for the record that she does not in any way feel that the offence should carry a lesser punishment, but believes that first-time offenders should be educated rather than castigated.

[Dr Johnson]

I am grateful to my hon. Friend for making that point. Those who know me or who have listened to my speeches on tobacco and vaping will be in no doubt of my support for the Bill, and I believe that the criminal justice system has its part to play in ensuring compliance, particularly where people recklessly or even deliberately sell products to children. If one talks to children at local schools, one will repeatedly be told which shops they know they can get particular products from.

You were not here this morning, Mr Dowd, but I talked about the last time I was carded when purchasing alcohol. A junior shopkeeper was selling it under the supervision of an adult, and when the adult had walked away, the young chap actually said to me, “Now if you go to the corner shop round there, they will sell you it.” That shop might not have sold me what I was trying to buy, but a different form of alcohol. It is certainly the case that some shopkeepers sell age-restricted products to children with some impunity, and it is important that we catch them and ensure that they are punished appropriately.

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

The Bill says that an individual may be liable for a fine, which means that other penalties up to £2,500 may be put in place. The Bill allows flexibility around the fines that might be issued, so I am struggling to understand, now I have made that point, why we are continuing to debate this. Is it the upper figure of £2,500 that the hon. Lady is objecting to, or is it the principle that we are introducing a fine at all? I am struggling to see the overall point of this debate.

[Dr Johnson]

I thank the hon. Gentleman for his intervention, and I shall try to be clearer. I strongly believe that these products should not be sold to children—I believe that personally; we have a free vote on this in my party. I strongly agree with the vast majority of the Bill, and certainly with the rolling age for tobacco. However, I think we have to be proportional in how we manage fines for individuals who break the law. I will come on to how the measures compare with those for other age-restricted products in a moment. Consistency is important.

When we debated this issue in the last Parliament in relation to the previous iteration of the Tobacco and Vapes Bill, there was published Government guidance on who would be fined. It may be that this Government have published similar guidance already, but I have not been able to find it; perhaps the Minister can say whether it is available yet. When we debate clause 1 stand part, we will talk about what the clause means by “a person”. The effect of a deterrent or punishment depends on who we are trying to deter or punish: if we are trying to deter or punish a major corporation or a business, the fines may need to be larger than if we are trying to deter a 19-year-old who works in a shop on a Saturday afternoon while attending college. That is the point that I am trying to get to with the amendments.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

Further to the point made by my hon. Friend the Member for Chatham and Aylesford, on which the shadow Minister is expanding, for which I am grateful, we heard evidence on the question of proportionality from National Trading Standards on Tuesday. The witnesses said that they would not necessarily levy the highest fines in the case of first-time offenders. Building on what my hon. Friend said, I am struggling to see the purpose of the amendment, given that the people who will engage with this measure, National Trading Standards, are very clear that they will employ exactly what the shadow Minister is concerned about—proportionality—in the case of, for example, a first-time offender.

[Dr Johnson]

The hon. Gentleman is right to go back to the evidence. One of the things we were told in the evidence provided by National Trading Standards and the Local Government Association, particularly on Tuesday, was that they want discretion, but also that they want first-time offenders to be treated more leniently. That was a clear ask from our witness, who explained that educating or warning first-time offenders was a better option than fining them.

Each of the amendments that I have tabled seeks to make available a police caution that will not count on a criminal record and so means the person will not be criminalised, unlike someone’s being taken to court and given a fine. The amendments would add in a lower level, as well as reduce the overall top fine. What I am trying to get from the Minister before Report is an understanding of whom he is trying to fine and proportionality in the amount of the fine. We need guidance on that issue, so that we can fully understand how a Saturday shop worker will be treated if they inadvertently sold some tobacco to somebody in a first offence versus how a shopkeeper and licence holder will be treated if they repeatedly commit such offences. I want some guidance from the Minister on that.

[Sarah Bool]

To build on that point, it is also important that we have clarity from a legal and enforcement perspective. The person who commits an offence is liable on summary conviction to a fine “not exceeding” a certain level. I take the point about what trading standards may do in practice, but if the practice changes and they decide to always go for the upper level, there is nothing in the law that allows for a cautionary approach and another level. The amendment provides a benchmark and a safety catch, so that there is slightly different treatment. It would ensure that those who the Bill intends to punish are punished. From an enforcement perspective, it is a sensible amendment.

[Dr Johnson]

My hon. Friend is right. We are trying to get some indication in legislation that there are different groups of people: those who commit this offence inadvertently on a one-off basis and those who do so repeatedly and deliberately. Different individuals or corporations need different treatment. I hope that the Minister, when wrapping up this set of amendments, will let the Committee know whether the guidance on this sort of sentencing has been produced yet, as it was before the previous Bill Committee debated the subject. If it has not, can he give some indication of when it will be produced and, in particular, whether it will be produced before Report? That will be really helpful.

In relation to the fines, I also want to discuss the principle of proportionality. Tobacco is a harmful, age-restricted product, but it is far from the only product subject to restrictions. When I looked into this, I found there are many more age-restricted products than I thought, and it was difficult to find out what the penalties were for selling them, inadvertently or deliberately, to someone below the age threshold. Selling a lottery product, including scratch cards, to someone under 18 is against the law. The penalty for doing that is more severe than for selling tobacco. I hope the Minister will correct me if I get any of these wrong. I looked at various council, trading standards and Government websites to find this information, but some of those websites, despite being official or council-based, are out of date. I have done my best, and I will be grateful for any correction the Minister can provide.

The penalties I was able to find were an unlimited fine and up to two years in prison. It is also illegal to pay out the prize to someone under 18, so one could argue that buying a ticket in the first place is somewhat futile. This is generally enforced by the lottery operator itself. Underage sales can also lead to termination of contract and removal of the lottery terminal. Not included in the penalties, which the Minister may want to speak about on amendment 57, is a penalty to the licence holder in terms of his or her licence, but we might come to that later.

Butane or lighter fluid are also age-restricted, and selling them to an under-18 carries an unlimited fine or six months in prison. These are more severe penalties than for the tobacco offence. Fireworks have different age restrictions based on their category: for some the threshold is 18, but crackers, which have a small spark in them, have an age restriction of 12, which I did not know. I could have inadvertently breached that had I worked in a shop that sold such things.

Films in the cinema have age restrictions. When I was younger, I used to think that the higher restrictions meant that the film was cool, and therefore movie producers wanted to get the highest rating possible to make the film seem as cool as possible. Fortunately, I have gained a little bit more understanding since then. There is an unlimited fine for the cinema offence but, again, this is not a fine on the individual who sells the cinema ticket; it is a fine on the cinema itself as a business. That is why who pays these fines is important. There can also be six months’ imprisonment for the person running the cinema.

Alcohol is another example of an age-restricted product where there are fines and penalties. Selling alcohol to someone under 18 can lead to an on-the-spot fine of £90, a criminal caution, or formal prosecution with an unlimited fine. With alcohol, there is a different approach for offending persistently. If someone persistently sells alcohol to under-18s, they can be given an immediate closure order for their shop of up to 14 days or an unlimited fine. Also, shops need a licence to sell alcohol. Petrol or diesel from a petrol station cannot be sold to anyone under 16. That risk is mitigated using the licencing process, and again, there is a penalty of an unlimited fine and up to 12 months in prison. Selling a blade or a knife to someone under the age of 18 is illegal and carries an unlimited fine and up to six months in prison, as is the case for solvents too.

A challenge with the fines for the different age-restricted products is that they vary from product to product without a clear explanation necessarily being given. It is also worth considering the age of the customer, because this is not a law that applies to children. Most of these other examples I described are there to protect children. As a society, we have a job to protect children.

--- Later in debate ---

[Dr Johnson]

Thank you, Mr Dowd, for the guidance, and I thank my hon. Friend the Member for Windsor for his intervention.

The age of the customer is important. The principle of existing tobacco legislation is that it protects children under the age of 18 from tobacco. This legislation will protect some adults from tobacco as well.

I have a question for the Minister about the offence. If we get 10 years down the line and we cannot sell tobacco to people under the age of 28 or 26, depending on when legislation takes effect—people in their 20s—we will have one group made up of children, who are not allowed to buy tobacco, and another group made up of adults who are not allowed to buy tobacco. I care deeply about the protection of children, but I believe that adults have a right to choose risk to an extent, where it does not harm others within society. Does the Minister think that, when we get to that point, selling tobacco to a child is a more serious and aggravating factor than selling it, perhaps inadvertently, to a 25-year-old when the age limit is 26? It is being sold to an adult who has the capacity to make a choice—although an illegal choice—about risk, but for the shopkeeper, at that point, selling to a 15-year-old would be a more serious offence.

[Andrew Gwynne]

I am grateful to the hon. Lady for putting that question, because proportionality is key here to how trading standards will approach the fines regime. The reality, however, is that the law will be clear as to what the age of sale will be. If a retailer has knowingly sold tobacco products—against the law—to someone who it is clear should not have been sold to, trading standards may take a different view than they would were the retailer’s defence that they had every reason to believe that the person was the age they claimed to be.

[Dr Johnson]

That is not quite what I meant. I guess the question is this: if someone has sold tobacco products to a person of 45 who should not have them because they are now illegal, that is an offence—it is breaking the law as set out in the clause—and would see a penalty applied—[Interruption.] Well, it may see them liable for a penalty—let us put it that way. If the retailer sold that same tobacco to a 14-year-old, would the Minister not agree about the difference? Selling it to a 45-year-old and a 14-year-old might be illegal—the same crime on the face of the Bill—but the penalties for selling tobacco to a minor should be greater than those for selling it to an adult.

[Andrew Gwynne]

We have heard very clearly from trading standards. The current practice is that trading standards officers across the four jurisdictions of the United Kingdom, which have different penalty regimes in place, apply a degree of proportionality. There is nothing in the Bill that changes that situation. Trading standards will always approach this in a proportionate and responsible way. However, as legislators setting out a clear desire to have a smoke-free generation across the UK, we must be clear that there is a borderline where one side is legal and the other is illegal, and that there are maximum penalties for breaking the law, as there are for a whole range of things. I do not want to differentiate within the smoke-free generation by saying, “Well, you can be a little bit smoke-free because you’re an adult now, but you should be absolutely smoke-free because you are kids.” From 1 January 2009, smoke-free is smoke-free.

[Dr Johnson]

I understand the Minister’s point. However, my point was that even in a world where things are illegal, we do have aggravating and mitigating circumstances in law. I suggest that, particularly as the rolling generations get older, selling to a child becomes an aggravating offence. I ask the Government to consider that.

[Sarah Bool]

Obviously, if someone is liable for a conviction or a fine, the defence is that they took all reasonable steps to avoid the commission. Given that in this instance we are talking about perhaps a fleeting look at a passport or something, will companies or shops now actually have to take scans or register that they have seen it?

[Dr Johnson]

My hon. Friend makes a valid point. I suggest, so that I do not try the patience of the Chair, that we discuss that when we get to clause 1 stand part, because it speaks to the substance of the clause rather than the substance of these amendments.

[Andrew Gwynne]

To be very clear, the answer is no. But I will explain why later.

[Dr Johnson]

As the Minister is in the mood for answering questions, would he like to intervene to say whether the guidance on who specifically will be liable for the fines has been written and published?

[Andrew Gwynne]

I will happily get back to the shadow Minister on that. On tobacco fines for under-age sales, it is up to trading standards to make a sensible decision—I emphasise the word “sensible”—about whom it seeks to fine. It depends on the circumstances behind the offence. When it is proxy sales, it is the person who buys the product on behalf of the minor who will be fined, rather than the shopkeeper or the business.

[The Chair]

Order. For the smooth running of the Committee, it would be helpful—rather than having the table tennis that is going on—if Members could ask questions and the Minister answered them when he winds up, and not on this individual level, if possible.

[Dr Johnson]

Thank you, Mr Dowd. That concludes my remarks on this group of amendments.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing these amendments before the Committee. That allows us to have a genuine debate on the nitty-gritty of the Bill and on the enforcement and implementation of the measures that the Government are bringing forward.

As the shadow Minister outlined, the amendments would create a more lenient penalty regime for the offence of selling tobacco, herbal smoking products or cigarette papers to someone who is under age in England and Wales, Scotland and Northern Ireland. They would create an exception to the maximum penalty a person can face for committing one of these offences—if it is the person’s first offence, that is. They would also 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—that is £1,000—or it would instead provide for a discretionary caution in England and Wales, a recorded police warning in Scotland and a conditional caution in Northern Ireland. That is one level lower than the level of fine that someone who commits this offence is liable to under current legislation in England and Wales and Scotland, which is level 4—£2,500 pounds. It is two levels lower than is currently the case in Northern Ireland, which is level 5—£5,000.

I appreciate that the intention of the hon. Member for Sleaford and North Hykeham is to establish greater leniency for first-time offenders, but the amendment is not necessary. My hon. Friend the Member for Cardiff West rightly pointed out that National Trading Standards told the Committee only two days ago, on 7 January, that when enforcing tobacco and vape legislation as it currently stands in England and Wales, it takes an entirely proportionate approach, taking the appropriate action to achieve compliance. Typically, that starts with the issuing of warning letters, which is entirely proportionate for first-time offences. As we heard only two days ago, sending warning letters is often incredibly effective in ensuring future compliance without the need to escalate to harsher penalties such as prosecution and the associated criminal fines, which are subsequently issued by a court on conviction. That proportionate approach is also taken by trading standards officers in Scotland and by district councils in Northern Ireland when enforcing tobacco and vape legislation.

There is absolutely nothing in the Bill or in what we heard from trading standards officers to suggest that anything will change. Trading standards will continue to do the job it is currently doing. It will use the proportionality it is currently using—nothing will change. The approach it takes to decide who to fine will continue. That will be entirely dependent on the case and the evidence in front of trading standards officers, as well as the circumstances. If, as is currently the case for most retailers, it is their first offence, they will get a warning letter. Only if the issue continues will that not be the case. The measures in the Bill do not change one iota how trading standards enforces tobacco control in the four nations of the United Kingdom. That is why it is right that we debate this issue and clarify it not just for the Committee but for the House and those following these proceedings. However, the amendments are not needed, because nothing will change.

As a Government, we have a smoke-free ambition. We take the view that tobacco is uniquely harmful. We want to ensure that the message gets out there loudly and clearly that we are serious about this smoke-free generation policy, so we do not want to weaken the existing penalty regime for tobacco and vape offences. What message would it send out if we watered down the measures as they are today? That would say that we are not taking smoke-free seriously.

I want to make sure that we carry on with the measures in the Bill. Offences must be taken seriously, and it is important that existing consequences are not weakened for first-time offenders or anyone else who commits these offences. We trust trading standards officers—the professionals—to do their job, as they do it day in, day out, week in, week out, and year in, year out, and to apply common sense, proportionality and, ultimately, the law of the land. Therefore, we do not want to remove the ability of the court to issue higher-level fines, where that is viewed as a proportionate penalty. The courts may well view fining certain rogue traders as a proportionate penalty in a particular case. For that reason, I ask the shadow Minister to withdraw the amendment.

[Dr Caroline Johnson]

The Minister’s response was very interesting. However, could he respond further to a couple of the questions that were asked? First, is it intentional that there is a difference in the level of the fines?

[Andrew Gwynne]

There are differences across the four nations of the United Kingdom, and those differences are a consequence of the devolution settlement that this Parliament agreed a quarter of a century ago. Of course there are divergences across the jurisdictions, because the four jurisdictions are able to legislate their own penalty regimes and have done so. The measures in the Bill do not change that situation.

We have crafted the Bill after full consultation, and with full agreement and full consent, across the three devolved jurisdictions and the UK Government, which legislates for England in this matter. That is why we do not seek to have a common penalty regime across the UK; we allow the Welsh, the Scots and the Northern Irish to develop their own penalty regimes. However, the law is common across the United Kingdom, and it will be for the trading standards authorities in those jurisdictions to apply the law. It will be for the courts in those jurisdictions to apply the penalty regime that appertains to those jurisdictions.

[Dr Johnson]

The Minister has somewhat contradicted himself. On the one hand he says that he does not agree with the amendments because he wants to leave the courts free to issue a bigger fine to a rogue trader, and I have sympathy with that argument. But why, in Northern Ireland, should a rogue trader be subject to a higher fine?

[Andrew Gwynne]

Because that is what Northern Ireland has decided.

[Dr Johnson]

If Northern Ireland has decided that it wants higher fines and if, as the Minister has said, he wants to take the idea of a smoke-free generation seriously, why, given that the law as it stands in England and Wales is for him to decide—certainly in England, as he is the Minister with responsibility for public health—does he not want the fines in England to be as high as they are in Northern Ireland?

[Andrew Gwynne]

We are in the bizarre situation where the shadow Minister has gone from wanting to water down the penalties to now wanting to make them higher, in line with Northern Ireland. We have been very clear that we are continuing the existing fine regime for tobacco control in England. We want trading standards officers to continue the proportionality they currently display when they enforce breaches of tobacco control. The Bill changes nothing in the current situation, beyond the fact that there will be a different age of sale that determines whether the law has been broken.

The measures in the Bill have been crafted in a way that suits the desires and the ambitions of the four nations of the United Kingdom, recognising that, in some parts of it, measures are already in place and that, in some parts, the penalties will be different from those in other parts. However, the underlying aim is the same: we expect law enforcement to continue in the way it does, and we expect the situation regarding fines to be as it is set out in current legislation.

[Dr Johnson]

If I understand the Minister correctly—he can correct me if I am wrong—he is saying that the reason why the fines are different between England, Wales and Northern Ireland is that that is the way they are at the moment.

[Andrew Gwynne]

indicated assent.

[Dr Johnson]

Would he like to see the fines in England rise to the same level as those in Northern Ireland, or is he content with them where they are?

[Andrew Gwynne]

This is becoming a question and answer session—it is all slightly like an evidence session. That is a decision for future Governments; it is not what we intend in this Bill, which is clear on what the penalty regime will be. I cannot guarantee that some future Government will not decide to alter the penalty regime. That may be a Liberal Democrat Government, a future Labour Government or even a future Conservative Government, when the Conservatives get their act in order, although the differences in the Committee suggest that may be way after the next generation are affected by the Bill to a considerable extent. They will be free to do that, because nothing done by this Parliament can bind future Governments. The Bill sets out the penalty regimes as they are for England, Wales, Scotland and Northern Ireland—and yes, there are differences, because that is devolution.

[Dr Johnson]

I am grateful to the Minister for his clear answers. The purpose of the amendments is to provoke debate on the proportionality of the punishments in place and to encourage the Minister to provide further guidance on who he expects to be punished—the shopkeeper or the shop—and to consider the levels of penalty across the UK. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 3—Age verification policy—

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

(a) carries on a tobacco, herbal smoking product, vaping product or nicotine product business, and

(b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco, herbal smoking product, vaping product or nicotine product business.

(2) Subsection (1) does not apply to premises (“the business premises”) from which—

(a) tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products are, in pursuance of a sale, despatched for delivery to different premises, and

(b) no other tobacco, herbal smoking product, vaping product or nicotine product business is carried on from the business premises.

(3) Before the specified date, an “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, a vaping product or a nicotine product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, vaping product or nicotine product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(4) After the specified date, an “age verification policy”—

(a) in relation to a tobacco business or herbal smoking product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, herbal smoking product or cigarette papers on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, herbal smoking product or cigarette papers that the customer may have been born on or after 1 January 2009 (or such earlier date as may be specified in the policy);

(b) in relation to a vaping product business or nicotine product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a vaping product, or a nicotine product, on the premises (the “customer”) if it appears to the person selling the product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(5) In relation to times before the end of 2033, the reference in subsection (4)(a) to the customer being born on or after 1 January 2009 (or such earlier date as may be specified in the policy) has effect as a reference to the customer being under the age of 25 (or such older age as may be specified in the policy).

(6) The appropriate national authority may by regulations amend the age specified in subsection (3) or (4)(b).

(7) 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 shown to the person selling a tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product as evidence of a customer’s age,

(c) training that should be undertaken by the person selling the tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product,

(d) the form and content of notices that should be displayed in the premises,

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

(8) A person who carries on a tobacco, herbal smoking product, vaping product or nicotine product business must have regard to guidance published under subsection (7) when operating an age verification policy.

(9) 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.

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

(11) 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,

“herbal smoking product business” means a business involving the sale of herbal smoking products by retail,

“nicotine product business” means a business involving the sale of nicotine products by retail,

“the specified date” is 1 January 2027,

“tobacco business” means a business involving the sale of tobacco products by retail,

“tobacco, herbal smoking product or vaping product business” means a business which involves any one or more of the following—

(a) a tobacco business,

(b) a herbal smoking product business, or

(c) a vaping product business,

“vaping product business” means a business involving the sale of vaping products by retail.”

This new clause introduces a requirement on businesses to operate an age verification policy covering steps to be taken to establish the age of persons attempting to buy tobacco, herbal smoking, vaping/ nicotine products, or cigarette papers. It reflects provisions in place in Scotland to be amended by the Bill.

Amendment 68, in clause 50, page 25, line 38, at end insert—

“(2A) In section 4A (Sale of nicotine vapour products to persons under 18) insert—

(a) in subsection (5), at end insert “, save if it is a first offence.”

(b) after subsection (5) insert—

“(5A) A person who has admitted guilt of a first offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a recorded police warning.””

This amendment prevents penalties for a first offence pertaining to the sale of nicotine vapour products to persons under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.

Amendment 69, in clause 50, page 26, line 26, at end insert—

“(ba) in subsection (7), at end insert “, save if it is a first offence.”

(bb) after subsection (7) insert—

“(7A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 2 on the standard scale or a recorded police warning.””

This amendment prevents penalties for a first offence pertaining to a failure to operate an age verification policy in Scotland being a fine not beyond level 2 and provides for a discretionary recorded police warning.

Clause 50 stand part.

Clause 68 stand part.

--- Later in debate ---

The Bill will be the biggest public health intervention in a generation. I and other Government Members—and, indeed, some Opposition Members—are determined and delighted to take it through, because it will break the cycle of addiction and disadvantage across our country and put us on track towards a smoke-free UK. I therefore commend clause 1 to the Committee.

[Dr Johnson]

It is a pleasure to discuss the substantive portion of the Bill, starting with clause 1. This Bill is vital health legislation. It takes a much-needed regulatory approach to vaping, as well as phasing out the sale of tobacco for the next generation. I am proud that, as the Minister has said, it was the last Conservative Government who first introduced the legislation. I pay tribute to the former Prime Minister, my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak), for championing this issue, and to Dr Javed Khan for his comprehensive 2022 review, “Making smoking obsolete”, which is where I first saw the suggestion of a rolling ban. I am pleased that this iteration of the Bill continues to have strong cross-party and cross-national support. I also pay tribute to my hon. Friend the Member for Harrow East (Bob Blackman) for his long-standing and tireless campaigning on nicotine and tobacco, and to Dame Andrea Leadsom, the Minister in the previous Bill Committee, whose proceedings began in April 2024.

It is now a truth universally acknowledged that smoking is bad for health. It is the leading cause of preventable death in this country. It is responsible for about 80,000 deaths a year. When we say that number, it is easy for us to let it trip off the tongue without realising just how many people it represents. For each of them, there is a personal story.

My own Nana Burton, my dad’s mother, smoked all her life—she smoked Woodbines—and she died of lung cancer. When she was diagnosed, her response was to buy herself some filters and start smoking filter cigarettes because they might be better for her, but it did not do any good. She used to smoke in the living room, and the ceiling had to be repainted annually for Christmas because there used to be an orange-yellow stain above her chair where the smoke had gone up. Perhaps not surprisingly, two of her children also smoked. My Uncle Alan died of emphysema following a lifetime of smoking, and my Aunty Chrissie died of oesophageal cancer following a lifetime of smoking. We do see—it has been discussed already—the pattern of generations. One benefit of the clause is that by breaking that cycle, we can stop generational smoking. We know that people are more likely to smoke if their parents do. My dad does not and never has, and perhaps that is why I do not, either.

As we come to what I hope will be the end of tobacco in many ways, it is worth casting our mind back to its history. Tobacco is actually not that old a product. It was first brought to England on 27 July 1586 by Sir Walter Raleigh, as the story goes. He brought it to England from Virginia, along with potatoes and maize—perhaps he should have stuck with potatoes and maize. It is said that his servants, seeing him smoking a pipe, threw water on him because they thought he was on fire. It was held at the time to be excellent for your health, whereas potatoes were viewed with great suspicion. Tobacco was touted as a relief for toothache, worms, halitosis—well, it certainly changes the smell of people’s breath—falling fingernails and even cancer. It is also said that in 1600 he tempted Queen Elizabeth to try smoking, and it was then copied by the rest of the population.

By the turn of the 17th century, tobacco was very commonplace and starting to cause concern. Sir Francis Bacon noted:

“The use of tobacco has immensely increased in our time”,

and that it gave men

“a kind of secret pleasure, so that persons once accustomed to it can scarce leave it off”—

an early description of the addiction that the chief medical officer described in evidence earlier in the week. If that period was when smoking first became popular, it is also when we find the very first anti-tobacco campaigning and regulation in this country. King James I, who was perhaps before his time in some respects, in 1604 produced a pamphlet called “A Counterblaste to Tobacco”, one of the earliest anti-smoking and anti-tobacco publications known. He reckoned that tobacco caused serious social problems and serious health issues; he described it as

“hatefull to the Nose, harmefull to the braine, dangerous to the Lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stigian smoke of the pit that is bottomelesse.”

Although that pamphlet was published 400 years ago, James I was not far off, and his words ring true today. He also, recognising the dangers, put an import tax on tobacco to try to reduce its use, and he noticed what the doctors in this Committee will have seen in their anatomy classes—I think there are pictures now on cigarette packets too—of black scarring in the lungs of people who smoked. Of course, that was not enough to put people off; during the great plague of 1665-66, at Eton College it was made compulsory for all the boys to smoke tobacco to protect them, which I thought was interesting.

Fast forward, though, to the 20th century and we begin to see tobacco being mass produced rather than sold as a luxury item. There had been some strides in regulation, such as the Children Act 1908, which forbade the sale of tobacco for those under the age of 16. It is interesting that it took from 1908 to almost modern times for that age limit to change.

After the conclusion of the war, tobacco companies had a captive audience, with lots of male soldiers wanting more, so they turned their attention to women. Recognising the strides that women had made during the suffrage movement, they cleverly used the equality angle as a basis for their mass marketing campaign to “light up for freedom”. They were also sold light or “Mild as May” cigarettes, which were supposed to be a more feminine version but were no doubt just as harmful.

As the chief medical officer said in evidence on Tuesday, big tobacco is very clever. As reports began to emerge suggesting a link between smoking, cancer and a whole host of other issues, tobacco advertising began to change tack. Cigarettes were no longer sold as being “Mild as May”, but focused on a male audience once again, promoting rugged individualism and stoicism. The Marlboro Man became a regular feature of motorsport events such as Formula 1 and featured on ski jackets and other clothing.

At that stage, to be pro-smoking was to be pro-choice, a rationale that amounted to “Die like a man, die free”. It is interesting that it was promoted as a form of choice—the argument being used against clause 1 today—when actually, as has been described to us in evidence, the only choice people make is that first cigarette. Once they have taken their first cigarette, they can become addicted to it, so the next cigarette is not the choice it is set out to be.

[Jack Rankin]

I take the point my hon. Friend is quite eloquently making, but might I suggest to her that times have very much changed: the advertising that she has talked about has long since been restricted, the idea that smoking is seen in that same way and is prevalent throughout society is no longer true, and perhaps the arguments she is making are not as relevant today as they might have been in the past?

[Dr Johnson]

My hon. Friend is right that the advertising restrictions have changed, because the Governments of different colours over the period have changed them. That has reduced tobacco smoking, which for people’s health is a good thing, as I am sure he agrees.

I am advised that the five men who appeared as the Marlboro Man all died of smoking-related illnesses, which is very sad to hear. In the 1950s, we started to see reports in the British Medical Journal that suggested a link between smoking and lung cancer, and by 1962 the Royal College of Physicians had enough evidence to push for a ban on advertising. Tobacco advertising has been banned on television since 1965, and a national warning sign saying, “SMOKING CAN DAMAGE YOUR HEALTH” was imposed in 1971.

--- Later in debate ---

[Andrew Gwynne]

The hon. Lady makes an important point. This is not speculation; we have seen it in action. In the period immediately after the indoor smoking ban, for example, the levels of cardiovascular disease in this country plummeted, so we know that tobacco control has almost immediate beneficial health outcomes for those who are at risk from smoking related illness.

[Dr Johnson]

I thank the Minister for supporting the view that clause 1 will reduce the number of people who smoke. We can argue about how it will reduce the number of smokers and how many people will stop, but either way we know that there will be a significant reduction in the number of smokers. That will significantly benefit people’s health—particularly young people, thanks to the rolling age process. As I have mentioned, it will benefit the health of children—even those as yet not conceived, never mind born—which is important.

The Minister talked about the effect on the NHS and social care. Smokers are likely to need social care 10 years earlier than their non-smoking counterparts. He gave figures in the billions of pounds for the cost to the NHS. Nearly half a million appointments a year are caused by smoking. If we were able to stop that, not only would we have a healthier and happier population who are not miserably addicted and unwell, but we would be able to concentrate NHS resources on other conditions and perhaps reduce waiting lists and waiting times.

The other key benefit of clause 1 relates the economy. Smokers are more likely to die early, which has an economic effect. They are more likely to take time off work as they experience chronic illness. It is estimated that smoking-related absenteeism costs the economy £5 billion annually. When smokers are hospitalised or have illness, they tend to have longer recovery times and more prolonged periods off work than their non-smoking counterparts.

Nicotine is an addictive substance. Nicotine cravings can be experienced by smokers and, as we heard in our discussion with teachers about children and vaping earlier this week, it can disrupt their work day and lead to lack of concentration and reduced focus.

Turning to the environmental impact, smoking is bad for the environment in several ways. Everywhere outside, we can see cigarette butts lying on the floor; that is pollution. The tobacco industry has an effect on the environment right from the get-go, including through deforestation, use of fossil fuels, and pollution caused by waste disposal. Tobacco cultivation requires large amounts of land and water, and the waste of cigarette butts contributes to hazardous litter that harms the ecosystem. Clause 1 will reduce the amount of tobacco consumed, which will reduce the number of cigarette butts and the amount of deforestation, and will therefore reduce waste.

The cultivation process is of particular concern. Tobacco is cultivated in around 125 countries, particularly in low-income regions and places such as Brazil, India and China. It is resource intensive and requires chemicals and pesticides that endanger the environment and public health. It is often grown through monoculture farming, which reduces biodiversity and increases the need for chemicals. It also uses up vast quantities of water, with some estimates suggesting that one smoker’s habit for 50 years could deplete almost 1,400 cubic metres of water, the equivalent of—

[The Chair]

Order. I am trying to give as much latitude as I can, but we do need to stick to the issues in this grouping as best we can. I have tried to give Members the opportunity to talk about the inadequacies and the unhealthy nature of tobacco, but we need to move on to talk about the particular issues in the grouping. I just want to bring that to your attention.

[Dr Johnson]

Thank you, Mr Dowd. My intention was merely to illustrate to the Committee the benefits of clause 1, rather than the risks, and the effect that reducing tobacco consumption will have on the environment and the public.

Early on in this Committee, the hon. Member for Winchester raised the issue of pets. We have a much-loved cocker spaniel. We do not smoke in our house, or at all, but it had not occurred to me that animals would be affected by smoking, too—it is obvious, when I think about it. Every day is a school day.

The number of smokers is falling, with only 12.9% of the English population smoking—I say “only”, but that is still 6.4 million people—which is a significant drop. However, there is still more to do, and this legislation is an effort, in part, to do that.

So what does clause 1 do? Essentially, it changes the age of sale for tobacco products, herbal smoking products and cigarette papers so that those born on or after 1 January 2009 will never be legally sold these products in England, Wales, Scotland or Northern Ireland, replacing the existing legislation, which sets the age of sale at 18. I appreciate that 1 January 2009 was the date set by the previous Government, but I wonder whether that was the reason the Minister chose it, or whether there was a more special reason. Given that we want to get children and adults not smoking as quickly as possible, why did he not choose to bring it forward a year? Why that date, specifically? Does he think it needs time to bed in, or does he think that leaves enough time to bed in?

I want to talk about subsection (1)(a) on tobacco products. There is a huge variety of tobacco products. We have talked mostly today about cigarettes, because they are the most common tobacco products, although they come in various different forms. There are also cigars, as my hon. Friend the Member for Windsor talked about earlier.

[Jack Rankin]

I will just expand the point a little bit. My understanding of heated tobacco, for example—my hon. Friend is a medical professional, so she may take a different view—is that where it has been introduced en masse, such as in Japan, there has been a 70% fall in cigarette sales. If we are talking about a smoke-free generation, and the health benefits that she and Government Members are talking about, is banning all tobacco products necessarily the right way to go about that?

[Dr Johnson]

Some people talk about celebrating special events with a cigar. My hon. Friend talked about new year’s eve, birthdays, the birth of a child or weddings—people might celebrate those sort of events with a cigar, although it is not as popular as it once was. It is possibly most famously associated with Winston Churchill. I think the expression “close, but no cigar” comes from the practice of giving away cigars as prizes at fairground games, which is thankfully not something we encourage today. Intriguingly, cigars have often evaded smoking bans, as a special exemption remains in place that allows customers of cigar shops to smoke on the premises, the idea being that smokers sample a product before committing to buying an entire box. Just a few hundred metres from where we stand, Members can stroll down St James’s Street and then smoke a cigar indoors, entirely legally, at the establishments that sell them. I think cigars have been given special treatment in the in the past for that reason. The Minister may consider that people who find themselves banned from tobacco, but addicted to it, may decide that they are going to smoke lots of cigars, but I would be interested to understand his thought processes on that.

--- Later in debate ---

[Andrew Gwynne]

indicated dissent.

[Dr Johnson]

The Minister is shaking his head. So what is a reasonable step? Unless one is to ask everyone for ID, the first step will be to decide whether to ask the customer in front of them for ID. That step will be, in essence, that shopkeeper or shop worker assess the person’s age.

Research shows that people are usually off by about eight years in their estimates of people’s ages by face alone. In fact, some research shows that if groups of people are shown a face, and the face that they are shown immediately before was a younger face, they will pick a younger age for that second person. If they are first shown an older face, they will pick an older age for that same person. That suggests that who the customer came in with, or who the previous customer was, may have an effect.

At the moment, we are asked to conduct a Challenge 25 check on a customer, but is it as easy to check the age of a 40 or 41-year-old as it is to check the age of someone under 25, or to tell whether someone is young or relatively young? The evidence seems to suggest that people who are close to 25 are quite good at telling whether people are under or over 25, and people who are close to 41 are apparently better at telling whether people are 40 or 41. It depends on age, and there is also an effect of sex and ethnicity.

Given that the Minister rejects new clause 3 tabled by the hon. Member for City of Durham on a policy on checking ID, he does not want people to have a policy on when to check, he does not want people to check everybody and he just indicated that he does not want people to rely on what they think based on looking at people, what reasonable steps would he expect to take place? The Government need to provide further guidance on that.

In the last Parliament, the hon. Member for York Central (Rachael Maskell) tabled an amendment for a nicotine-free generation. She made the point that we have a rolling age of tobacco products, herbal smoking products and cigarette papers, so why not have one for all nicotine products? We know that nicotine is addictive and that the industry will evolve to try to get people hooked to a different form of nicotine product—that may be less or more harmful than tobacco, but it will still be addictive. Their choices will still be taken away, and they will still be having something that they do not want, which costs them money and potentially makes them poorer as a result. If it were to become apparent later that these items were particularly harmful, and one wished to do another rolling ban, one could end up in a situation where there is an age for sale of alcohol, fireworks and all sorts of other things, and two rolling ages with two different dates—one for tobacco, herbal products and cigarette papers, and another for vaping and other nicotine products such as nicotine pouches.

Many of the amendments to the Conservative Government’s very similar Bill were included by this Government in their Bill, so I wonder whether the Minister could comment on why that particular amendment from a Government Member was not included.

[Sarah Bool]

To take a step back, I am still not satisfied that I understand, in practice, what the defence for someone to prove that they were shown ID means in practice? Perhaps that will form part of the guidance. If one is to suggest that CCTV is required, is that in the GDPR? In some circumstances, it would be quite difficult to prove. Given the seriousness of the offence and the repercussions, I just want some reassurance.

[Dr Johnson]

I thank my hon. Friend for that very helpful intervention. I, too, am not entirely clear what the Bill means by reasonable steps. We seem to have established what some reasonable steps might not be, but I am still not clear what they might be. It would be helpful if the Government elucidated that point further.

--- Later in debate ---

[Dr Johnson]

I thank my hon. Friend for that intervention, which builds on the point I was trying to make.

The issue of managing individuals addicted to smoking who come to the UK is an important one. On my last foray through Heathrow, I met a gentleman who was unhappy to find himself there; I think he had been supposed to land in Paris but weather had intervened, and he was not happy at Heathrow because there was nowhere for him to smoke. I think he was travelling back to South Africa, having watched the rugby.

How we manage smokers who come here to visit as tourists or as migrants is an important economic question. If people come here permanently, what investment will the Minister make to promote awareness among such individuals of the various nicotine replacement therapies that might be available to them, in order to help them to quit smoking and improve their own health, which is obviously very important?

[Jack Rankin]

I will just expand on that point a little. The United Kingdom is something like the third biggest tourist destination in the world. Forgive my ignorance—there is a lot of paperwork here—but obviously we are trying to make the sale of tobacco and the distribution to others of tobacco illegal in the UK, and I have not seen a clause in the Bill that would make bringing cigarettes into the country for one’s own use illegal. Maybe the Minister will correct me on that.

We obviously have a tourism issue in that regard, but I was also thinking about when G7 leaders come to the UK. President Obama was famously a smoker. Will the United Kingdom not be able to host a G7 event, which is obviously of massive significance, if there is a leader of the free world who smokes? Their attendance might be vetoed. There are lots of things that have just not been thought about.

[Dr Johnson]

I thank my hon. Friend for his intervention. I have not seen a clause in the Bill that prevents tobacco from being imported. The Minister will no doubt correct me if I am wrong about that; however, it does not look as if he is going to. If the leader of another G7 nation is coming to a conference in the UK, he will be bound by the same laws as everybody else. If that means he cannot buy cigarettes, then he cannot buy cigarettes, although I suspect that the current leader of the Bahamas was probably born before 1 January 2009, so we are safe for a little while.

However, it is right that my hon. Friend raised the point. After all, the purpose of this Committee is to ensure that someone has gone through the Bill line by line and thought about all the various different esoteric concerns that might be raised, and to ensure that they are brought to the fore. I am sure that the Minister will be able to reassure us that the volume of tobacco that can be brought into the UK for personal use will exceed the amount that the average president might wish to use while they were here attending a conference. Who knows? The final point was about employers. Will they be required to train people in age estimation? Given that the evidence for that does not exist—we were told in evidence to the Committee earlier in the week that such training does not exist—would that form part of the reasonable steps? It would be reassuring to me if it does not, in particular for small businesses, which already bear a number of burdens in tax at the moment.

Amendment 68 is an Opposition amendment, in my name. It would prevent the imposition of penalties for a first offence pertaining to the sale of nicotine vape products to individuals under 18. It would modify section 4A of the Tobacco and Primary Medical Services (Scotland) Act 2010, which regulates the sale of nicotine vapour products to a person under 18, by introducing lenient penalties for first-time offenders. The amendment stipulates that the penalties typically applied for selling such products to minors will not apply for the first offence. The new provision would allow first-time offenders who admit guilt either to receive a fine not exceeding level 3 on the standard scale, or to be issued a discretionary recorded police warning—similar to a caution—instead of facing more severe penalties.

The change aims to provide a less punitive approach for first-time violations, offering flexibility in enforcement while still holding offenders accountable. It comes back to the point that we made about proportionality in relation to the group of amendments that included amendment 56, and to the Minister’s comments on who exactly will be responsible for the fine—whether that is the shopkeeper or shop worker, or indeed whether it can be both.

Amendment 69 would add to section 4B(7) of the Tobacco and Primary Medical Services (Scotland) Act 2010 the phrase

“save if it is a first offence”,

and insert a new subsection (7A) after subsection (7). The provisions would ensure that individuals who commit a first offence under the age verification policy in relation to the sale of tobacco, and herbal smoking, vaping and nicotine products, are treated more leniently than repeat offenders. That goes back to the difference between a rogue trader and a young Saturday worker who mistakes the age of an older person.

The first change made by amendment 69 would limit the application of harsher penalties to those who have already been convicted, meaning that first-time offenders will not face the same level of penalty as those who have a history of non-compliance. The second change—the addition of the new subsection (7A)—would establish a graduated response for first-time offenders. It specifies that anyone who admits guilt for the first time, for their first offence, would be subject to a much lower fine of no more than level 2 on the standard scale, or a recorded police warning.

That is a significant reduction, compared with the penalties that may apply to repeat offenders, so it would offer more lenient consequences for a first offence. The recorded police warning would serve as an official notice, preventing the individual from avoiding further legal consequences if they do not comply with the conditions of the warning. That is similar to our earlier discussions about proportionality, and the Minister may want to comment further on that in relation to these amendments.

Finally, new clause 3 seeks to amend clause 1 to introduce a prohibition on the sale of tobacco products to individuals born on or after 1 January 2009. The new clause would require businesses to offer an age verification policy to establish the age of persons who attempt to buy tobacco products. The policy must include the steps that are needed to verify the age of a person who attempts to purchase any of those products, if it appears that they may be under the age of 25 or any other age specified in the policy—in this case, the age of a person born on or after 1 January 2009.

New clause 3 outlines certain exemptions, specifying that businesses from which tobacco, herbal smoking products, vaping products or nicotine products are dispatched for delivery to other premises do not need to operate an age verification policy, to help with trade and providing them to retailers. It would avoid problems with businesses and delivery services that do not interact directly with the customer or end user in person. The new clause would allow the appropriate national authority in England or Wales to regulate the details of those policies, including by providing guidance on the steps that businesses need to take to verify age, the type of identification that can be accepted and the training requirements for staff.

I note that the Minister suggested that he would reject new clause 3. I am interested to understand which of the steps taken to verify age, to train people in identification and to set out training requirements for staff he does not want. The implementation of this age verification policy would reflect similar measures that are already in place in Scotland, which are included specifically in this Bill and are designed to ensure that individuals who are under the legal age are not sold these products. The Scottish legislation provides legal underpinning to the Challenge 25 scheme, which operates voluntarily in the rest of the UK.

There is an argument that customers in the rest of the UK are uncertain whether they will need to provide ID, whereas customers in Scotland under the age of 25 are certain that they will need to provide their ID. I am not sure that that holds water in some respects, because if one is close to the age of 18 or fortunate enough to look it, one is expecting it—although, as I said before, I was 38 the last time I was carded, and I did not expect it. I did not have my ID with me, and I was not able to buy the product, though I was amply old enough.

I note that in new clause 3, the fine is set at level 2, which is obviously lower than the level 3 fine. When she speaks to her new clause, can the hon. Member for City of Durham explain why she has chosen a level 2 fine? For the purpose of the new clause, the fine is applied to a business for not adequately training its staff to assess people’s age and putting them at risk of non-compliance with the law. Does she think that a level 2 fine, for which a young Saturday worker could be liable if they were to sell those products, is proportionate, or set at the right price point? We are trying to get businesses to comply, and a rogue business may be unlikely to be deterred by such a low amount.

Subsection (7) of new clause 3 stipulates that individuals selling tobacco products, cigarette papers, herbal smoking products, vaping products and nicotine products must undergo training. However, the practical implementation of age verification policies poses significant challenges, and businesses, especially small retailers, may lack the resources and training to effectively enforce them.

[Jack Rankin]

One thing that will be particularly operationally difficult is the period of time during which those on the shop floor may not be able to use cigarettes themselves, but they will not be prohibited from selling cigarettes. An 18-year-old shop worker might be asked to adjudicate whether someone is 33 or 34. In such instances, training might be really quite important.

--- Later in debate ---

[Dr Johnson]

My hon. Friend raises two points there, one of which is that the age at which someone can sell a product may not correlate with the age at which they can buy it. That is true for some products already, and I will go back to my story. When I could not get my bottle of champagne, because I looked too young, the young man at the cash desk had to be supervised by an older person in order to sell such products, so he was selling them with permission. Other age-restricted products can be sold—without supervision, in some cases—by people aged 16 to 18 with a specific form of training and when a particular form of paperwork is completed, so this is not unprecedented.

I also agree with my hon. Friend’s second point that this is a bit odd and clunky. If one were to make tobacco illegal, however, one would be criminalising people, and if one were to bring in an age limit of 25, suddenly there would be a cohort of criminalised addicts. The rolling pattern helps with that.

--- Later in debate ---

[Sarah Bool]

Drawing on the point that my hon. Friend is making, one issue with the drafting of subsection (7) of new clause 3 is that businesses will need to have this age verification policy, but the national authority may—and it is only a “may”—publish guidance, so there is not clarity. Some form of template would be needed to make the provision effective. The intention is obviously to have a full policy in place, but the guidance could be just a piece of paper with three bullet points, and that would not meet the intention. Also, do we really need two fines in place when there is already a fine, as the Minister said, for selling? I do not think there needs to be a fine for not having a piece of paper with a policy.

[Dr Johnson]

If one is expected to have a policy, guidance on what that policy should contain is certainly important. If one is going to be held accountable for not having such a policy in law, it is clearly not sufficient to say, “You must have a policy but we are not going to tell you what it must say or do.” It comes back to the point that I have been making throughout the day. Who will face this fine? How will it be decided who the fine applies to? Will it be applied to the retailer as well as to shop workers, shop supervisors, shift supervisors or CEOs, and under what circumstances? I think there needs to be guidance on that so we have a clear pathway.

Clause 1 states that it is a defence if someone has taken “all reasonable steps”. If having a policy is not to be a reasonable step—there are arguments for why we might not want it to be, because it is an extra regulatory burden on business, and some very small businesses could struggle with that—and neither is looking at someone and making one’s own mind up, it is important to understand what is. I do not think we have got to the bottom of that yet.

My final question for the hon. Member for City of Durham, who tabled new clause 3, is: why not Northern Ireland? I think one reason why she has chosen to introduce this is because there is such a policy for Scotland, but not for England and Wales. I do not believe there is such a policy for Northern Ireland either, and I wonder why she did not seek to correct that in her new clause. It may be something that she wants to consider in refining such a new clause before Report.

[Mary Kelly Foy (City of Durham) (Lab)]

I wish to speak to new clause 3, which is in my name. I do not intend to press it to a vote, and I will be very brief because there has been a lot of discussion—about three and a half hours—on this part of the Bill already, and I hope it will answer some of those points. I am introducing it because I think it would enhance the Bill’s consistency with the Government’s four-nations approach. New clause 3 would apply to all the nations of the United Kingdom mandatory age verification for purchasing tobacco, vapes and non-medicinal nicotine products, in line with the provisions set out for Scotland in the Bill.

Scotland has had mandatory age verification for anyone who looks under 20 as a legal requirement for purchasing tobacco and vapes since 2017. In lay terms, there is a legal underpinning for Challenge 25, which is voluntary in the rest of the UK. The Bill amends the Scottish system so that from 2033, it will be a legal requirement to verify the age of anyone trying to purchase tobacco who looks like they were born on or after 1 January 2009. My new clause would simply extend that beyond Scotland to ensure consistency for retailers, customers and enforcement agencies.

[Mary Kelly Foy]

The new clause will make the policy consistent across the nations and simplify the process. If I can carry on, I will expand on those points. The new clause will extend the policy further than Scotland and simplify the process for retailers, customers and enforcement agencies. There has already been a lot of discussion about the implementation of a smoke-free generation, and about trying to make it simple and easy to understand. We heard in oral evidence concerns about the difficulty, when the policy has been in place for some decades, in telling the difference between two individuals in their forties who fall on either side of the policy. While that is likely to be a marginal issue in practice, the new clause will further help to resolve it.

Mandatory age verification currently exists in Scotland and is supported by retailers here. In response to the Minister’s point about it possibly being a burden on businesses, a survey of independent UK tobacco retailers by Action on Smoking and Health in 2024 found that more than seven out of 10 retailers—71%—in England and Wales supported this.

[Dr Johnson]

We have heard dreadful stories of retailers who have experienced nasty abuse and, in some cases, violence when they have asked for someone’s age. If somebody knew for certain that they would have their ID checked, it would no longer be an evaluation by the shopkeeper of their age, but merely a simple, expected transaction.

[Mary Kelly Foy]

I agree. We heard concerns on Tuesday in evidence about the aggression towards retailers, and the impact that the Bill might have on that. I would argue that providing consistency about identification is a potential mitigation of those risks. It takes away the guesswork.

[Dr Johnson]

May I ask the hon. Lady if there is any evidence that in Scotland, it has reduced aggression towards retailers?

[Mary Kelly Foy]

I cannot point to any evidence in statistics, but retailers welcome it. I think 90% of retailers in Scotland are in favour of it. In England, 83% of small retailers agree with it, and I am sure that is because it takes away those cloudy grey areas. It means that once someone shows their ID, that is the end of it.

On the point about this being a slippery slope towards mandatory ID cards, young people now are used to carrying ID. In fact, the Bill provides a list of different forms of ID that people can provide, including passports and driving licences. I believe the Government are talking about introducing digital ID checks for the purchase of alcohol. If this were applied to tobacco, individuals would not need to carry a physical ID with them. The measure is supported by retailers and by seven out of 10 members of the public, as well as by the Local Government Association and trading standards, which both believe it would help with enforcing the legislation and aid prosecution.

I have tabled the new clause to simplify things. This has already happened in Scotland, and it would make the Bill consistent with the Government's four-nation approach. Given the issues that we have been discussing today, having mandatory ID would make things so much easier and simpler. Just to be clear, I will not be pushing it to a vote.

--- Later in debate ---

[Gregory Stafford]

My hon. Friend makes a good point. We in this Committee want to ensure that nobody who does not have to dies of smoking or tobacco-related issues, but we do not want to make the regulations so tight that they make things more complicated than necessary for business.

[Dr Johnson]

I do not want to put words into the mouth of the hon. Member for City of Durham, but I think she is trying to fill a gap with her new clause. The Government have said that businesses need to take reasonable steps and people need to take reasonable steps, but they have not defined those reasonable steps. Even today, it does not seem clear what they might be, although we know what they are not.

[Gregory Stafford]

I thank the shadow Minister for her intervention. She made that point powerfully during her speech. It is vital that we in this Committee, people listening to at home and those who will have to implement or abide by this legislation are really clear what those steps are. I hope the Minister is able to give us some surety on that.

We must ensure that we expand the acceptable forms of identification as much as possible, especially in clause 1, as the shadow Minister said. We have seen this in all sorts of walks of life, and she made the reasonable comparison with voter ID laws. Even if it is not something that the Minister can guarantee today, I hope that further forms of ID, such as veterans’ cards, will be inserted on Report, because as the age of people who are still allowed to smoke increases, they will have different forms of ID from younger people.

I will finish with a personal comment, if you will indulge me, Mr Dowd. I have two daughters, one of whom is nearly seven and one who is eight, and I find it fascinating that they find the idea of people smoking both bizarre and abhorrent. When we drive along in the car or walk along the street and they spot someone who is smoking, they rather loudly, and perhaps slightly to my embarrassment, point it out and say, “Daddy, that man”—or woman—“is smoking. Isn’t it awful?” Although the steps in the Bill are necessary and useful, I think that we as a nation, and Governments of all different colours, have done a good job in dealing with this. What worries me more for our young children is vapes, which we will discuss in future sittings. I will be happy to support clause 1 if it comes to a vote.

--- Later in debate ---

[Jack Rankin]

I take the Minister’s point that in a society in which we are looked after by our NHS, to which we all contribute, which is free at the point of use and which I am sure all of us across the House support, when someone smokes and creates a burden on society through health or social care, that is the responsibility of us all.

Where I think the difference lies is where we make a moral choice. I have heard different figures for the cost from cigarettes. There are different studies. I have heard numbers as low as £20 billion, but I think that today the Minister used £80 billion when talking about productivity. I think that should be calculated properly and appropriately with evidence, but if that is the cost, that is what we should levy in excise duty, at which point the people who impose that burden are the people paying it. That is where I would go, in principle. I think that if we go beyond that point, we are starting to make a moral decision on behalf of others.

[Dr Johnson]

I understand the “polluter pays” concept that my hon. Friend is raising, but he is also talking about the morality of the situation. What does he think of the morality of producing a product that we know, more than on the balance of probabilities, will kill the person who uses it and will make them an addict and remove their choice of whether to purchase any more?

[Jack Rankin]

My hon. Friend makes a very reasonable point, but there is not a single adult in this country who does not know how bad cigarettes are for them. It is an important function of Government to make that educational point. Governments of all colours have made it systematically, and it has massively changed the way people, including the new generation, perceive cigarettes. That education battle has been won. Once we have won that game, which I think we have, and once we have no longer socialised the healthcare cost to others, which is what I suggest cigarette duty should be doing, we are starting to make moral choices on behalf of others.

--- Later in debate ---

[Jack Rankin]

Does the Minister perhaps not see the difficulty with the fact that we will be out of international lockstep with everybody? My understanding is that both New Zealand and Malaysia introduced a generational ban policy, and both have been repealed.

[Dr Johnson]

My understanding—I am sure I will be corrected if I am wrong—is that New Zealand introduced the ban, but it had not come into force, at which point the Government changed. When the Government changed, the political views of the Government changed—as we have seen happen in our country. Sadly, as a result, the law was rescinded before it came into force in New Zealand.

[Jack Rankin]

I am well aware that that is the case. Part of the reason for that change in Government—although I do not want to overplay the significance of this singular issue—was that the incoming Government made an argument about the practicalities of enforcing such a law. Frankly, that is a significant concern of mine.

--- Later in debate ---

[Jack Rankin]

I might make some headway, because I think that was more of a slap-down than a question for me.

[Dr Johnson]

It might be good to get on record some of the figures that appear in the Government’s impact assessment regarding the association between smoking and poverty. My hon. Friend is absolutely right that people who are poor or rich have the same agency and intellectual capacity to make decisions, but the figures show that the number of people in poorer areas who smoke is greater.

Figures produced in the Government’s impact assessment show that, in 2023, 20.2% of those in routine and manual work smoked, compared with 7.9% in managerial and professional populations. For those who owned their home outright, smoking rates were only 7%, but for those who rented local authority or housing association properties, smoking prevalence was 25.7%, which shows there is a marked inequality in smoking rates between rich and poor. The health inequalities we see across the population in other forms of ill health will be improved by clause 1, because smoking rates will fall in all populations. The change will be seen most in the poor.

[The Chair]

Order. The principle was already agreed on Second Reading, so we do not need to rehearse all the arguments. I am sorry to have to say that, but that is my job as the Chair. Some may accuse me of being lax in this regard, but I am not—I want the debate to go on, but I want it to be about the clauses we are supposed to be debating.

--- Later in debate ---

[Andrew Gwynne]

Thank you, Mr Dowd. At least, in taking your deep breath, you will not be passive smoking—it is a healthier deep breath than it might otherwise be. I thank all hon. Members for their input into the debate on these amendments and new clauses, as well as clause stand part. I will try to address the points that have been made.

First, I will clarify my previous contribution. The police do of course enforce the law on smoking in cars with children; we were talking about the retail side of things, and the police do not have a role in enforcement in retail—I just wanted to make that clarification.

[Dr Johnson]

Will the Minister therefore clarify something for the record or for anyone listening to proceedings? If one is suspicious that a particular retailer is selling tobacco products to children or, in the fullness of time, to those who should not be receiving it, to whom do they report it?

[Andrew Gwynne]

These are matters for trading standards. Trading standards is the enforcement authority. If people have a concern today about a retailer in their area that is potentially selling tobacco or alcohol products to people who are under age, they should report it to trading standards. Trading standards will investigate, and may even do test purchasing as one of the tools at its disposal. As we discussed previously, should that test purchase unfortunately show that someone was sold a particular product under the legal age, appropriate action can be taken within the framework of law, and that will continue to be the case under the Bill. For a first offence, that might be a written letter, or it might be amplified through the court process, depending on the severity and the particular situation.

I want to dwell briefly on the comments of the hon. Member for Farnham and Bordon. He is right that many young people now do not smoke; certainly, they do not smoke in the numbers they did when I was a young lad, when my peers took up smoking. That is a good thing, and as a consequence of the past two decades of tobacco control measures, we have got to the place we are in, but let us not be complacent. The hon. Member for Windsor is keen on international comparisons, and we have seen increases in youth smoking in the USA and Australia because there has not necessarily been the concerted tobacco control that we want to see. I do not want to see smoking prevalence increase in the United Kingdom as an unintended consequence of saying, “Well, we have sorted it with the kids. It’s all right.”

I had the privilege of being interviewed by LADbible. I did not even know what LADbible was, but now I am aware, because I ended up with not one story, but a set of four stories off the back of this Bill. It is incredibly keen on reporting on this Bill—no doubt it is listening in to the proceedings. One of the questions I was asked was whether I was concerned that young people are again being bombarded with images on social media of film stars and influencers—whatever the trendy term is for the great and the good these days—smoking. As in the images that we used to see in magazines and newspapers, it looks sexy again, and I am concerned about that. My answer was that it is often best for politicians not to give advice to kids, because they think, “Yeah, whatever—you would say that,” but, as a father and a grandfather, my advice to the next generation is that there is nothing sexy about having yellow fingertips. There is nothing sexy about having a cough. There is nothing sexy about clothes stinking. There is nothing sexy about bad breath.

Cigarettes and tobacco are not sexy, but we cannot be complacent that we have fixed the problem. That is why we need to stop that conveyor belt so that the tobacco industry of today knows that the customer base of today is it. We are coming after the industry, because I want to beat the addiction that the hon. Member for Windsor talks about. I want to ensure that those millions of smokers in the United Kingdom, whether in Scotland, Wales, Northern Ireland or England, have every opportunity to give up, to break that addiction and to be free. That is real liberty.

[Dr Johnson]

In the impact assessment, it says that 95% of people cannot give up through willpower alone. Will the Minister congratulate my right hon. Friend the Member for Basildon and Billericay (Mr Holden), who told me that over Christmas he has managed to give up smoking using willpower alone? This is the first time that he has not been smoking.

[Andrew Gwynne]

I do not want to tempt fate or for the right hon. Gentleman to end up smoking again, but that is great. Anybody who manages to break free of that addiction and to do so on their own—through willpower alone—is incredibly tough. That is why the previous Government committed to funding for smoking cessation services and introduced things such as swap to stop. This Government are continuing that investment into stop smoking services, and we are determined that anybody who wants to give up will have everything that we can throw at them to help them off their addiction. However, for the next generation, that is it—we have stopped that conveyor belt, because we know that the tobacco industry will target them wherever we put the borders. The measures in clause 1 are so important.

The shadow Minister asked why 2009. I will let the cat out of the bag: not everything that the right hon. Member for Richmond and Northallerton (Rishi Sunak) did was bad. The previous Tobacco and Vapes Bill showed real leadership by him. Announcing it at the Conservative party conference did not just take Conservatives such as the hon. Member for Windsor by surprise; it took a lot of us by surprise, because we had been calling for precisely the New Zealand model after Javed Khan had reported back. We think that 2009 is appropriate.

I get the urgency of this issue, and I share the urgency outlined by the shadow Minister to bring the date forward, but we have to be real here. As the hon. Member for South Northamptonshire said, we want these measures to be workable and we want this Bill to be a success. The lead-in time is slightly shortened, because the Bill was parked due to the general election and had to be reintroduced, but it gives us an appropriate lead-in time for these big changes, particularly in our engagement with the retail sector and in getting some of these measures right for the retail sector. We are working with the sector on guidance and on how we allay some of the concerns that have rightly been raised in the course of this debate. Subject to Royal Assent, the measures in the Bill will come into force on 1 January 2027. That is an appropriate, proportionate and measured way of reaching our ambition of getting to smoke-free and working with industry to get us there. That is why we have gone for 2009.

The shadow Minister mentioned bongs and other paraphernalia. This is an issue that really gets on my nerves, because it is possible to walk down Strutton Ground, the street just at the side of the Department of Health and Social Care, and see vape shops there that not only have all the colourful packages of vapes, but what I consider to be drug paraphernalia, in their windows. That is the result of a loophole. Under drugs legislation, which of course is the remit of the Home Office, such paraphernalia can be displayed by shops so long as it is not sold for the use of drugs consumption.

We all know what bongs are for, and I have raised this issue with the Minister for Policing, Fire and Crime Prevention, who shares my view that we need to crack down on it. I asked my officials whether we could end up with a perverse situation, whereby the measures in the Bill mean that, subject to consultation, the display of vapes—all those colourful packages—would be replaced by vapes in plain packages and in cabinets locked away, not to be seen and with the shop window bare of them, but instead the shop window could be full of bongs. That would be a real perversity, where it would not be possible—rightly—to see tobacco or vape products in the windows of these establishments, but it would be possible to see drugs paraphernalia in them instead.

My officials assure me that the only reason that such shops can sell bongs, rather than display them, is because bongs can also be used to smoke tobacco products. That is the loophole. Given that we are bringing within the scope of the Bill a number of things that can be used to smoke tobacco and banning their display, that means—thank God—that the measures in the Bill will get rid of that awful loophole. That will mean that shops around the country, including shops just around the corner from the Department of Health and Social Care, will no longer be able to show drugs paraphernalia in their windows.

[Dr Caroline Johnson]

The Minister is making a very powerful and impassioned speech; I get the impression that he finds this situation frustrating. I wonder whether he will put a clause in the Bill that specifies bongs and other such paraphernalia, because, although a bong may be a product for using tobacco with, it is not a tobacco product, is it? So which clause will ban them?

[Andrew Gwynne]

We believe that a bong is a tobacco product, because the only reason shops are able to treat bongs as not being drugs paraphernalia and therefore to sell them is for the consumption of tobacco. There are all the other things that are addressed in the Bill, such as pipes and so on, and bongs are no different. Therefore, we will make sure that the loophole that currently exists when it comes to drugs paraphernalia is closed.

Bongs are not explicitly dealt with in the Bill, but the hon. Lady raised them as an issue and they are a real bugbear of mine. As I am sure she can tell, dealing with them is something that I have been championing, both with officials in the Department of Health and Social Care and with my colleague the police Minister. I am assured—indeed, I am reassured—that a consequence of the measures in the Bill will be that bongs will no longer be able to be displayed for sale in shops.

[Dr Johnson]

The Minister is making a very impassioned point and I am grateful to him for doing so. Given his great passion for this area and the fact that, as the Minister for Public Health, he has his hands on the levers of power, so it is up to him—to govern is to choose—why has he not chosen to put in a specific mention of these products? It is up to him to do so if he wishes.

[Andrew Gwynne]

Because we do not need to. The measures in the Bill cover these bongs. For example, although it is not a direct tobacco product, clause 45 gives Ministers the power to cover devices used to consume tobacco, which is the power to say, “Well, you’re selling these bongs. We know it’s for drugs, but you’re selling these bongs on the basis that it is to consume tobacco.” Therefore, they are no longer covered because clause 45 gives Ministers the power to do that.

I will try to rattle through because I know Members are very keen to get to other parts of the United Kingdom for which transport is not easily available. Apologies if I miss anything. I will try not to take interventions as a consequence—I hope Members will forgive me for that. On whether the rules apply to snuff in Parliament, I do not know the answer off the top of my head; perhaps I should. I have been around here for such a long time that I remember the implementation of the indoor smoking ban. My recollection is that Parliament was not covered because it is a royal palace, and we got a bit of flak for that. Rightly, the parliamentary authorities decided that they would apply the law within the Palace of Westminster, even though the law did not apply to it, and that is why the Smoking Room is smoke-free. It may well be that snuff goes the same way, but I imagine those will be matters for the House authorities.

On reasonable steps and what they are, retailers may check other forms of ID, not just the forms outlined in the Bill—for example, that may include veterans ID cards. We are very clear that other forms of ID can be shown, as long as the retailer can show that they have taken all reasonable steps to avoid selling to a person under age, and that is the important thing.

On tourists and the potential for the President of the United States not to be able to attend a G7 if he wants to have a cigarette, the duty-free rules are not changing. Those coming into Great Britain from outside the UK are allowed to bring an amount of tobacco for personal use, which is 200 cigarettes or 250 g of tobacco, although there is no personal allowance for those under 17. The President of the USA can bring 200 cigarettes with him to a future G7—that is not an issue.

On enforceability, as I have said, trading standards is responsible for enforcing tobacco and vape sales, and district councils are responsible for regulations at a local level in England, Wales and Scotland. In Northern Ireland, Border Force and HMRC also have an important role to stamp out opportunities for criminals in the illicit tobacco trade. We are working closely with retail associations and will develop guidance with them to support the successful implementation of the enforcement measures in the Bill. That is a really important point, and it leads into the point made by the shadow Minister on why we are not bringing the measures of the Bill further forward. We want that lead-in time to get these measures right so that retailers are clear on both what those measures are and how we can work with them to get it right.

The Bill introduces a new defence in England, Wales and Northern Ireland for retailers accused of selling to someone under age, if the retailer can prove that they were shown an identity document that shows the customer was above the age of sale. The Bill sets that out, but as I have said, other forms of ID are not unreasonable.

On protecting retail staff from abuse, we are working really closely with retailers and will use the long lead-in time to support them in preparing for and implementing these changes. We will not stand for violence and abuse against any shop workers. Everybody has the right to feel safe on the job and this Government will introduce a new offence of assaulting a retail worker to protect the hard-working and dedicated staff who work in the stores.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.”

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[Andrew Gwynne]

I thank Members for their contributions.

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

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

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

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

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

[Dr Caroline Johnson]

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

[Andrew Gwynne]

I will come to Scotland in due course.

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

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

[Dr Johnson]

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

--- Later in debate ---

[Andrew Gwynne]

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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—

Tobacco and Vapes Bill (Tenth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 21st January 2025 Public Bill Committees

Question (this day) again proposed, That the clause stand part of the Bill.

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

It is a pleasure to serve under your chairmanship this afternoon, Mr Dowd.

As we discussed before the adjournment, clause 89 forms part of part 4 of the Bill. It provides the power to Revenue and Customs officers to seize and detain snus. We talked briefly about the time of detention being 48 hours. I was about to ask how one would decide that the amount was suitable to seize.

Clauses 7, 8 and 9 already provide for snus. Clause 7 bans UK manufacture. Clause 8 bans sales in the UK, but not where people buy it abroad or online and import it. Clause 9 covers the possession of snus with intent to supply, but does not give any indication of what sort of volume one would anticipate could lead to supply.

I am aware that when it comes to some illegal drugs, there is a rough and ready reckoning of how much would be considered as being possession with intent to supply and how much as being for personal use. It may be more complicated in this case, however, because the personal use of this product, which it is legal to import, will affect how often one wishes to import it.

For example, it is unlikely that someone who is importing snus for their own personal use would need to make an import on a daily or perhaps even weekly basis. Some people may decide that they are going to do it monthly or annually, which may mean that they are importing quite a sizeable amount that some customs officials may consider as not for personal use, but for supply.

Could the Minister indicate how it will be decided what counts as personal use and how people can prove that? We do not want a loophole that allows people to use this dangerous product.

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

It is a pleasure to serve under your chairmanship once more, Mr Dowd.

These are of course operational matters for customs officials who already utilise the powers that they have been given in a variety of different forms of legislation. It is common practice for customs officials to seize illicit goods at the border, irrespective of what those illicit goods are. That will now apply to snus.

Border Force officials will decide on a case-by-case basis—on the evidence in front of them in any particular case and on the intelligence that they might have—whether the goods that they have seized are likely to be for personal use. I imagine that given the quantities that would likely be needed, in the case of seizing illicit goods, we would be talking about large quantities of a product that clearly would not be for personal consumption. It would therefore not be unreasonable for Border Force officials to come to the conclusion that the illicit goods that they have seized may well be sold on, which is illegal.

[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

I will not. That is pretty clear.

Question put and agreed to.

Clause 89 accordingly ordered to stand part of the Bill.

Clause 90

Retail packaging

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

[Andrew Gwynne]

The clause provides the Secretary of State with powers to make regulations about the retail packaging of vaping, tobacco and nicotine products, as well as cigarette papers and herbal smoking products. It also covers tobacco-related devices. For instance, regulations made under this power could restrict the appearance of packaging, as well as what information is provided on it, its shape and its texture.

Although vapes can be an effective quit aid for adult smokers, vaping is never recommended for children. It risks addiction and unknown long-term health impacts while their lungs and brain are still developing. Despite that clear health advice, there has been a significant and alarming rise in the number of children vaping. There are also reports of increased use of nicotine pouches among children and adolescents. That increased use is partly due to the blatant marketing of vapes to children through brightly coloured packaging and the use of child-friendly images such as cartoons. That is an unacceptable practice that the Government intend to stop.

We have seen the effectiveness of standardising tobacco packaging for youth smoking rates, and the evidence tells us that reduced brand imagery can decrease the appeal of products to children. This clause will allow us to make changes such as banning the use of cartoon characters on packaging and regulating the colours that can be used. The clause also replaces existing regulation-making powers for tobacco packaging, so that the power to regulate all the relevant products is in a single piece of legislation. I therefore commend this clause to the Committee.

[Dr Johnson]

Clause 90 is in part 5, on product and information requirements, and deals with the retail packaging of various products. Clause 90(1) grants the Secretary of State the authority to make regulations concerning the retail packaging of tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. This is one provision where tobacco-related devices are included; they have not been previously, in most clauses. The packaging is of the device, which may be supplied separately from a refill, so that is an important addition.

Clause 90(2) specifies that the regulations may include

“prohibitions, requirements or limitations in relation to the production, importation or supply of such products in the course of business.”

That is relevant because a quick search on the internet reveals that although quite a lot of things are prohibited in the UK, including different forms of cigarettes—those with branded packaging, coloured cigarettes and the like—and they may not be legal to sell in this country, it is perfectly possible to go on to a website, buy them in British pounds and have them supplied to one’s home, so there is a clear loophole that needs to be considered.

Subsection (3) outlines particular aspects that the regulations may cover, including the markings on packaging, such as the use of branding, trademarks and logos. I think the use of the word “logo” is key, because if I were to draw a pair of golden arches, people would know what I meant without my needing to write “McDonald’s” next to them, or if I did a little tick, people would know what I meant before I said that it was for Nike. The same is true of various logos, such as for Amazon and others, where the picture has become so well known that the name of the brand is not required to identify it. There is actually a board game that people can buy for their kids to test how good they are at identifying logos. Clearly, brand marketers are very aware of the use of shapes—as well as just the name—for identifying their products.

It is also possible to regulate the information provided on packaging or otherwise supplied with a product and the appearance of packaging. We have seen pretty coloured packaging and packaging designed to entice children with its texture, size and shape. I have seen vape holders that are teddy bear-shaped, so that while someone is not using their vape, they can put it in a teddy bear that comes in a range of colours. They are available on Etsy. It is even possible to regulate the means by which packaging is opened.

Those are useful powers for the Secretary of State to take, but only if he uses them. If he takes them and does not provide any regulations at all, they are worse than useless. Can the Minister explain the timescale in which he expects to perform any consultation required to introduce regulations to the House?

In addition, subsection (3) allows the Secretary of State to address in his or her regulations any packaging features that could distinguish between different brands, the number of individual products in a packet or the quantity of a product in a packet. Products then become standardised items that are less attractive, particularly to children. Subsection (4) specifies that any regulations made under the clause will be subject to the affirmative resolution procedure, meaning that they must be approved by Parliament before coming into force.

The regulations proposed as a result of the Secretary of State’s powers under the clause will build on previous regulations on shape and packaging. We are all aware that the shape, size and appearance of packaging has changed over our lifetimes. Indeed, on 20 May 2016 the UK implemented the Tobacco and Related Products Regulations 2016—the TRPRs—following the European Union’s tobacco products directive 2014/40/EU. The TRPRs form part of the current regulations retained as EU law after Brexit, and they contain a comprehensive set of rules for the regulation of nicotine-containing e-cigarettes and related products, often referred to as vapes.

The TRPRs introduced several important product standards for nicotine-containing vapes, which marked a turning point in how those products are perceived and controlled. Notably, they placed limits on the nicotine strength allowed in e-liquids, restricted the size of refill bottles and tanks, and mandated specific health warnings on the packaging. The packaging requirements were introduced to ensure that customers were fully informed of the risks associated with using nicotine products.

Again, placing the new regulations on top of the old ones will work only if they are properly enforced, and we have all seen examples of them not being properly enforced or followed. Under the current Tobacco and Related Products Regulations, nicotine-containing products such as e-cigarettes and e-liquids are required to carry a mandatory health warning on their packaging. However, the law allows significant flexibility on the colour, shape, style and types of branding used on those products, as we can see in the adverts when we walk down the street. Some of them are smooth-shaped, some are sharp, and some are shaped like SpongeBob SquarePants or teddy bears. There are also various flavours, although we will come to flavours later. The colours, branding and shapes are all part of the advertising to try to make the products attractive to users, and in some cases particularly to children.

The approach to vapes under the current regulations is in stark contrast to the stringent requirements already in place for tobacco packaging, which is covered by the Standardised Packaging of Tobacco Products Regulations 2015. The regulations maintain that cigarettes and hand-rolling tobacco packaging must be plain, with no branding, logos or colours that could attract potential smokers. The stark difference between tobacco and vape packaging raises important questions about how best to protect young people from the growing appeal of vaping products, which are still seen by many as a safer alternative to traditional cigarettes. We must be clear that they may be safer for smokers, but not for children or people who do not smoke.

It is important to understand the context behind clause 90. Before we had formal packaging regulations, cigarettes were sold with little to no concern for public health. Tobacco companies focused primarily on branding and advertising to create an appealing and recognisable product. The early 20th century saw the rise of the iconic cigarette brands, each seeking to distinguish itself through distinctive packaging designs. Often vibrant, colourful and glamorous—as we are seeing with vapes—they were designed to entice new customers, including young people, and to create a sense of status or sophistication.

Cigarette packaging became a key component of the advertising strategy, with slogans, logos and images intended to convey a lifestyle associated with smoking. Of course, a young person attracted to them would have bought that packet, carried it and shown it to their friends. The packaging would form part of the attraction of the product, and encouraged people to take on a product that we would not have wanted them to. There were no health warnings at that time, and little was done to inform the public of the dangers associated with smoking. That persisted for many years until the latter half of the 20th century. As Members will be aware, throughout the history of tobacco advertising, characters and mascots have played a significant role. These often colourful, friendly and appealing figures, designed to make smoking appear safe, desirable and even fun, were found on the packets.

--- Later in debate ---

[Dr Danny Chambers (Winchester) (LD)]

It is about not just the attractiveness of the packaging, but where products are located in the store. They are often near the sweets, so young people can go and grab some chocolate or sweets and a vape and then head out. One big benefit of changing the regulations is that vapes, like cigarettes, now have to be not only plain packaged, but kept behind the counter, where people have to ask for them. The culture of seeing them as something recreational, almost like junk food or a treat, would also be removed.

[Dr Johnson]

The hon. Gentleman is absolutely right. The aim of the regulations that were introduced to remove sweets from immediately adjacent to tills was to discourage children from taking sweets and pestering their parents at the till. That was part of a drive to reduce obesity levels, but the sad thing is that in many places those products have been replaced by vapes, which are more harmful to youngsters than sweets were.

To the hon. Gentleman’s point, we have seen that putting tobacco displays out of sight of children can help to reduce products’ attractiveness. Clauses 13 and 14 provide for display regulations in England and Wales—I cannot remember the clause numbers for Scotland and Northern Ireland, but those clauses also exist in the Bill. The clauses provide for displays to do exactly what the hon. Gentleman says: to ensure that children are not enticed through the display of these brightly coloured products.

To return to packaging, research has shown that graphic health warnings—particularly some of the graphic pictures—on cigarette packs can increase smokers’ awareness of the health risks and motivate some to quit. The larger and more vivid the warning, the more likely it is to have an impact, with some studies suggesting that plain packaging, combined with graphic warnings, can lead to higher levels of cessation. That is the effect of tobacco packaging, but we now need to look at vapes.

Now that vapes are so commonly used by children, the question is, what effect will vape packaging have? In recent years, research and public opinion surveys have shed light on the potential harm caused by the packaging of e-cigarettes and related products. The Government call for evidence on youth vaping published in 2023 found that many children were drawn to vaping products due to the bright colours, eye-catching designs and child-friendly images on the packaging. Those designs, which included cartoon characters and fun and vibrant logos, have led to concerns about vaping becoming mainstream and appealing to younger audiences who have never smoked.

We need to remember that, in theory, vaping is a stop-smoking device. The industry also tells us that it is—at least in theory—not trying to market vapes to non-smokers and children. However, that appears to be the effect of the marketing that it has done, and the use of packaging to target, or seemingly target, young people has become a concern for many health professionals and lawmakers and for the public and parents alike.

Research published by the Journal of the American Medical Association Network has reinforced those concerns. It showed that standardised packaging for vaping products, which reduces or eliminates brand imagery, could significantly decrease their appeal to young people. Interestingly, it did not seem to reduce the appeal of e-cigarettes to adult smokers. That suggests that although branding might attract young non-smokers, it does not play a critical role in attracting those who are already smokers or who are trying to quit—I did wonder whether that is because a plain packet is more enticing for those who are used to a packet with pictures of diseased lungs on it. It would also seem that colours are not necessary for adult smokers. Therefore, according to that research, we can bring in clause 90, without any concern that it will deter smokers from quitting, and in the knowledge that it may prevent children from starting to vape.

One study, which was particularly revealing, was designed to explore the association between different types of e-cigarette packaging—fully branded versus standardised—and the level of interest in trying e-cigarettes among youth and adults in Great Britain. Specifically, the researchers sought to determine whether standard packaging that removes brand imagery and uses a plain colour scheme could reduce the appeal of e-cigarettes to young people without diminishing the appeal to adults who may be using them as a smoking cessation aid.

That research is particularly relevant in the context of public health policy, because the Government have been considering measures to reduce the attractiveness of e-cigarettes to young people, while encouraging their use as a cessation tool among adult smokers. The study focused on young people aged 11 to 18 and on adults aged 18 or over. It was conducted in 2021 and involved 2,469 young people and 12,046 adults. They were randomly assigned to view one of three kinds of packaging: fully branded e-cigarette packaging, for control; white standardised packaging with brand names; or green standard packaging with brand names. The experimental design allowed the researchers to compare the level of interest in trying e-cigarettes under those different conditions.

The colour of the packets, and the fact that the researchers chose a white one and a green one, are interesting. The Committee was given evidence about which colour should be chosen. Some people suggested that black or a very drab colour, as is used for cigarettes, might give the message that vapes are as dangerous as cigarettes, which may not be the case for current smokers.

--- Later in debate ---

[Andrew Gwynne]

The shadow Minister is making a really compelling argument, but it would be best saved for the Delegated Legislation Committee following the consultation, so that we know exactly what the Government are proposing. She is setting out a resounding argument for different measures, but that is not of course what the clause sets out. It gives Ministers the power to consult and to bring secondary legislation to a future Delegated Legislation Committee. That is where the shadow Minister should be making these absolutely superb arguments, but we need the powers first.

[Dr Johnson]

With respect, it is unwise to give someone the power to do something you do not want them to do.

[Andrew Gwynne]

But you do want us to do it.

[The Chair]

Order. The Minister should address Members through the Chair.

[Dr Johnson]

Thank you, Mr Dowd—I am sure you have no opinion on this matter, as you are impartial.

Before giving powers under clause 90 to change packaging and make packaging regulations, it is important that we understand the Minister’s intention. Is it to strengthen or to weaken?

[Andrew Gwynne]

If the shadow Minister is seriously saying that the Government are bringing forward measures to weaken existing provision, she is living in cloud cuckoo land. She does not need to ask me or, through me, the Secretary of State whether it is our intention to weaken the provisions; it absolutely is not. It is in our manifesto that we would bring them in. We want to strengthen the measures. The shadow Minister actually needs to ask Opposition Members whether they would use the powers to weaken those measures. That is not a question for me; it is one on which she has to tussle with the Leader of the Opposition and with Opposition Back Benchers on the Committee.

[Dr Johnson]

I thank the Minister for his intervention, but the Labour manifesto is not necessarily a document on which one can rely. I do not seem to recall its saying that the Government were going to take the winter fuel allowance from old people. I will not test your patience, Mr Dowd, by giving other examples of where the Labour manifesto did not reflect what the Government went on to do, but the point has been made.

One of the key issues from the public consultation on the Bill, which is therefore relevant to clause 90, is the growing concern and mounting evidence about vape packaging and the need to prevent products from appealing to children. The consultation paper issued by the Government expressed a clear desire to ensure that no vape packaging or vape devices should target young people. The Khan review, which was done under the last Government, recommended that restrictions be placed on packaging images and descriptions to ensure that vapes did not appeal to children.

In that vein, the Government have suggested that they will ban the use of cartoon characters, animal images, images of inanimate objects and other child- friendly visuals used on packaging and devices, recalling the infamous tobacco mascots of times gone by. By implementing such a measure, I believe that the Government aim to reduce the attractiveness of such products to children, acknowledging that current marketing practices may be encouraging the use of such products among young people who have never smoked.

A quick online search can dig up all sorts of vapes and vape paraphernalia clearly targeted at children. Vape packets with SpongeBob SquarePants, Mario Kart characters and other cartoon characters can be found online. I have listened to children who have said that they have discussed which vape they should have to match the outfit they are wearing at a particular event.

There is significant public support for stricter regulation of vape packaging. A 2023 public opinion survey commissioned by Action on Smoking and Health found that 76% of adults in England are in favour of limiting the use of sweet names, cartoons and bright colours on vape packaging. That shows that there is widespread concern among the public about the need for stronger safeguards to protect young people from becoming regular users of nicotine products.

The call for limiting the appeal of vape products to children is in line with broader efforts to tackle young vaping, which has become a growing public health issue in recent years, but public opinion is not the only factor that should drive the changes to packaging. The Government’s concern over youth vaping is also reflected in their efforts to develop a comprehensive regulatory approach. In addition to restricting the use of child-friendly images on packaging, there are other, broader changes, which I will not go into now.

The packaging of vaping products is not just a cosmetic issue. The clause talks about cosmetic things such as what materials can be used, what packages can look like, how big they are or what shape they can be, but those have real implications for public health. By regulating the appearance and branding of these products, we can significantly influence how they are perceived by the public and, most importantly, younger audiences. The goal of the regulatory measures has to be to strike a balance between ensuring that vaping remains available as a harm-reduction tool for adults trying to quit and reducing the risks associated with its increasing appeal to young people.

That delicate balance requires careful consideration and ongoing dialogue between health experts, industry stakeholders and the public. As the Minister pursues such consultation—if he is given the powers under clause 90—I hope that he will consider the matter of flexibility and the way in which the businesses tend to evolve, and that he will future-proof the regulations. The UK Government have taken an important step in recognising the potential risks posed by packaging and are actively working to mitigate those risks through public consultations, policy papers and regulatory changes. However, that is only the beginning. To effectively address the challenges posed by vaping, further measures will need to be introduced not just on packaging, but in relation to other matters, which we will come to later.

We have made the case for why we should consider giving the Secretary of State or Ministers the powers to regulate retail packaging. However, the question is what impact that will have. Will it have a big or small impact, and will we be putting a large amount of regulation on to businesses for minimal effect and increased cost? Will this make a big difference? The Government have produced an impact assessment of the measures in clause 90 and their desired outcome. It says that the appeal of vapes to children, and the subsequent number who go on to vape, is expected to reduce with the restriction of packaging presentation. Such restriction would therefore result in overall health benefits to our young people due to a reduction in vaping uptake and associated harms.

Moreover, such a decrease in vaping uptake and associated usage among young people is recognised in the impact assessment as also being potentially beneficial for the environment because of a reduction in the anticipated litter from vape-related packaging. Indeed, a litter pick with volunteers from Sleaford a little while ago drew my attention to the harm that vape-related waste is having on our environment. Again, in considering the material of packaging, the Minister may want to think about any environmental hazard posed, which is something that he can mandate under clause 90(3)(d) to ensure that the packaging is to a standard that helps to reduce the effect on the environment.

Furthermore, the impact assessment highlights that the illicit vape market has been increasing and suggests that it could be exacerbated if these powers were implemented. However, it could also be argued that more appropriate packaging restrictions could assist in distinguishing between compliant and illicit vape products, depending on how the regulations were brought forward. They could make it arguably more difficult to discretely stock, advertise or sell such illicit products, and easier to identify and tackle illegality in the sector. It is recognised that packaging-related restrictions are expected to reduce the number of children and adults vaping, thus reducing the profits for manufacturers and stockers because of packaging presentation.

The impact assessment also sets out that such measures are not expected to prohibit or affect the abilities of vape consumers themselves in making choices based on their own preferences or in purchasing the products they wish to consume. If one is already a vape customer, or one is a smoker wishing to stop, packaging will not have an effect, but it may well reduce the likelihood that children start vaping, which is a good thing. Consumers are free to engage in purchasing and consuming such products as they wish, albeit that by being in different packaging, it is less appealing to children and young people.

Although no studies have shown the real-world impact of standardised packaging for vaping products, evidence from experimental studies suggests that plain packaging may reduce the appeal of vaping products among young people. There is research in the impact assessment about standard olive-coloured packaging—I am not sure whether that is a green olive or a darker olive—in comparison with branded packaging. It found that young people aged 11 to 18 had a lower interest in trying vapes in standard packaging but there was no difference among adult respondents between the branded and plain standardised products. Research from King’s College London and Action on Smoking and Health shows that different effect, with young people being more likely to attracted by the packaging than adults.

A recent study also looked at a cross-sectional online survey to explore interest in the perceived harms of vaping products when it comes to packaging. The study found that not only did young people aged 16 to 19 in England, Canada and the US find e-liquids in white or olive-coloured standardised packaging less appealing compared with those in branded vape packaging, but that they inaccurately perceived e-liquids in that standardised packaging as being equally or more harmful than smoking, compared with e-liquids in branded packaging. Again, there is evidence that packaging influences children’s decisions. If they look at something in a plain packet, they are more likely to think it is not good for them than if they see it in a packet with Mario Kart or a teddy bear on it. I know that is instinctive, but the evidence also bears it out, as seen in the Government’s impact assessment.

I am interested to know how clause 90 differs from existing legislation, particularly on tobacco products. It is my understanding that under the Standardised Packaging of Tobacco Products Regulations 2015, which came into effect on 20 May 2017, all products—including cigarettes, rolling tobacco and snuff—must be sold in standard packaging. The use of logos, trademarks and branding has been severely restricted and tobacco packaging must display the product name in standard font and size without any distinctive logos, colours or images.

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

It is a pleasure to serve under your chairmanship, Mr Dowd. Focusing on clause 90, my view is that the Government are taking the right step. Some on the Back Benches of my party may not agree, but I think the clause plays a vital role in shaping the future of tobacco control in the UK. The debate surrounding retail packaging regulations is, however, complex and the Minister clearly has to juggle the balance of public health interests, consumer rights, and industry and legal concerns. I believe that clause 90 is a significant legislative step that aims to standardise packaging to reduce the appeal of tobacco and vaping products, and to ensure that consumers are better informed about the health risks while restricting marketing strategies that encourage nicotine use.

The primary aim of clause 90 is to safeguard public health. Research from Public Health England and the World Health Organisation has consistently demonstrated that standardised tobacco packaging, free from branding and marketing embellishments, reduces the attractiveness of the products—particularly, as the shadow Minister said, among young people. By extending the regulations to vaping and nicotine products, clause 90 takes a proactive stance in preventing nicotine addiction. I welcome that.

Marketing tactics and eye-catching packaging clearly play a crucial role in enticing young people to experiment with tobacco and vaping products. As has been mentioned, studies indicate that standardised packaging reduces the appeal of smoking among young people, reinforcing the message that these products are harmful. Like us, Australia, which implemented plain packaging laws in 2012, has seen a significant decline in smoking rates, particularly among young people.

Clause 90 mandates clearer health warnings and restrictions on misleading information on packaging. Research shows that graphic health warnings, as we already have on cigarette packets, and standardised packaging improve consumer understanding of the risks associated with smoking and vaping. That also aligns with international best practices, as seen in places such as Canada and France, where strong packaging regulations have contributed to reduced smoking rates.

Although cigarettes are currently subject to strict packaging regulations here, the vaping and nicotine products listed exploit the regulatory gaps used to make attractive branding and misleading claims. Clause 90 ensures that similar restrictions apply to all tobacco-related products, creating a much more consistent regulatory framework. That has the public health benefits I have mentioned but also makes it easier for the consumer to see a standardised product that they understand has implications for their health.

Many countries have likewise already introduced stringent packaging laws to curb tobacco and vaping consumption. We should be proud that the UK has long been a leader in tobacco control. Clause 90 reinforces that leadership by adopting global best practices, ensuring that our laws remain in line with international commitments such as the WHO framework convention on tobacco control.

Plain packaging has also been shown to reduce the likelihood of relapse among former smokers, by minimising the branding cues that trigger cravings. By eliminating marketing strategies that glamorise tobacco use, clause 90 strengthens the UK’s efforts to support smoking cessation initiatives. Standardised packaging could include sophisticated track and trace systems to help to identify illicit products. Will the Minister be considering that as part of the new regulations he puts forward? These systems reduce counterfeiting and smuggling, ensuring that any tax revenues are protected and that illegal sales do not undermine the well outlined public health efforts.

However, clause 90 raises issues that we need to consider. Although it has a number of advantages, it is essential to address some of the concerns that could arise from its implementation. I suspect that I am pre-empting comments that may be made by my hon. Friend the Member for Windsor. There is clearly an impact on consumer choice. Some argue that standardised packaging restricts consumer choice by making it harder to distinguish between products. Although health concerns clearly must take precedence, policymakers must ensure that consumers can still access product information without ambiguity.

[Dr Johnson]

Can my hon. Friend illustrate whether there is any evidence suggesting that, as the result of plain packaging, consumers are less able to identify whether they have the right product in their hand as they leave the shop?

[Gregory Stafford]

I have not seen any evidence of that, but I want to ensure through the regulations that the consumer understands, from a health benefit point of view, what is in the product that they are taking away with them.

Unlike tobacco, vaping products are often promoted as a harm reduction tool for smokers who are trying to quit. Some argue that overly restrictive packaging rules could deter smokers from switching to less harmful alternatives, and I urge the Minister to assess how clause 90 affects vaping uptake among smokers seeking cessation tools.

As we have heard previously, the tobacco and vaping industries have historically opposed packaging regulations, often challenging them through legal means. Many countries have seen lengthy lawsuits after implementing plain packaging laws. I urge the Minister to ensure that the UK is prepared to defend clause 90 against potential challenges and ensure that the regulations that might come through are legally sound and enforceable. Some critics also warn that overly stringent packaging laws could drive consumers towards the illicit markets, where unregulated products may pose greater health risks. Again, the Government must complement clause 90 with robust enforcement mechanisms to prevent black market proliferation.

[Dr Johnson]

Is it not right that in the past, when increased tobacco regulations have been made, the black market has shrunk with the overall market?

[Gregory Stafford]

Absolutely, and we heard that clearly in the evidence sessions before we began examining the Bill in detail. However, as Members on both sides have mentioned, the tobacco and vaping industries are extraordinarily innovative in getting around regulations; that is really what I was referring to. That brings me to my next point. The effective implementation of clause 90 will require strict monitoring and enforcement, so local authorities, through their teams, must be equipped with sufficient resource to ensure compliance and tackle any attempts to circumvent the regulations.

My final point is about what I call the potential stigmatisation of vapers. We clearly do not want anyone to start vaping, but those who are already vaping or those who may be trying to use vapes as a smoking cessation tool must be taken into account. Although discouraging nicotine use is a priority, the Minister must avoid unintended consequences, such as stigmatising vapers using e-cigarettes as a smoking cessation tool. The regulatory framework should differentiate between the combustible tobacco products and reduced-risk alternatives where appropriate.

To ensure that clause 90 achieves its intended objectives while addressing the concerns that I have raised, I ask the Minister the following questions. Will he consider differentiated regulations for vaping products, ensuring that the public health messaging does not inadvertently deter smokers from switching to the less harmful alternatives? We need clear guidelines for implementation, so comprehensive guidance should be issued to businesses, law enforcement and regulatory agencies to ensure smooth implementation. There needs to be a public awareness campaign that complements that to educate consumers about the changes of packaging and reinforce the risks of tobacco and nicotine addiction, and we must have certain timelines for producers so that they understand what the new requirements are and how they will be implemented.

We need to ensure that the Government conduct regular evaluation of the effectiveness of clause 90 using data-driven analysis to assess its impact on the smoking and vaping rates, and we need strong law enforcement and border control agencies to prevent the illicit trade and ensure compliance with the regulations. Perhaps this does not need to be said, but the Minister should engage with public health experts and harm reduction advocates to refine the regulations and address any emerging concerns as they come in the future.

[Jack Rankin (Windsor) (Con)]

It is a pleasure to serve under your chairmanship, Mr Dowd. It seems to me, both from the text of the clause and from his introductory remarks, that the Minister aims to do two things. He aims to bring regulations on packaging to apply more widely to vaping and nicotine products, and to consolidate the law so that tobacco and nicotine products are all dealt with in one place.

My hon. Friend the shadow Minister asked the Minister to commit, with these powers, not to undermine the regulation on cigarettes thus far. Unlike the shadow Minister, I have no concern that the Minister might water down any such remarks. I trust the Labour manifesto in that regard.

[Dr Johnson]

This may be the first aspect of the Labour manifesto that we can trust, so perhaps there is something to celebrate.

[Jack Rankin]

Indeed. In fairness, I also share both the Minister’s and the shadow Minister’s concern. It is very clear that the incremental changes to tobacco retail packaging are one of the public health interventions that have diminished cigarette use, which is desirable.

However, I also ask the Minister to make assurances that, despite the consolidation of the law, he will treat vaping and nicotine products in quite a different way. I echo some of the thoughts that my hon. Friend the Member for Farnham and Bordon expressed. It seems to me that, certainly when it comes to vaping, we should have proportionate and targeted regulation of vaping and nicotine products. In particular, we should be cracking down on anything that is particularly or unduly appealing to those who are under age, whether that is toys, cartoons or sweet-type imagery. That view would be shared right across the House. In the Minister’s introductory remarks, he called vaping an effective quit aid. Yes, we do not recommend it to children, but we do want to maintain that.

My concern about these quite sweeping regulations is this. I take the Minister’s point that delegated legislation will have to come forward in the future and will buff out how exactly the Minister plans to take this matter forward, but to me, moving towards, for example, plain packaging is likely to undermine the effectiveness of vaping as a cessation tool, which would undermine the objective that the Bill is trying to arrive at: in my understanding, a smoke-free generation by 2030. I ask the Minister to give us some assurances that he will treat vaping and nicotine products in quite a different way from tobacco products. After all, vaping is the fastest growing—I think this is uncontentious—smoking cessation method, and I think that here there is scope for quite wide-ranging powers.

I also urge the Minister to accept this point. I do not know how he considers this, but in my view there are responsible vape businesses and I think he should work with them to understand how they think they could change things so that people are directly using vaping as a smoking cessation tool and it is not appealing to people who would be new smokers. It is my understanding, from some of my research ahead of coming on to this Committee, that a Cochrane review said that vaping is twice as effective as any other stop-smoking tool. I do not think the Minister should be seeking to under- mine that.

I know that we do not get on to the issue of flavours until clause 92, so I will keep my comments brief on this, but it does seem to me to be legitimate to advertise flavours, perhaps in a delimited way. The shadow Minister talked about candy floss flavours, which should not be allowed, but it seems to me that people could legitimately advertise to adults various factual flavours that show vaping as something we can progress on smoking cessation with.

I would also oppose the cancer-type warnings that we see on cigarette packs in relation to vaping. I do not believe the evidence is quite there yet. The research on vaping is in its infancy, so it is too early to say whether that is appropriate.

[Dr Johnson]

I understand that my hon. Friend does not believe that there is evidence at the moment on particular health disbenefits of vaping, but would he agree to be guided by the chief medical officer and other experts in this field when making that decision? At one time, medical professionals did not think smoking was bad. Things change and evidence comes out over time.

--- Later in debate ---

[Sarah Bool (South Northamptonshire) (Con)]

It is a pleasure to serve under your chairmanship, Mr Dowd. I will focus on two main points from two different organisations.

The first point, which builds on the points made by my hon. Friends, was made by Cancer Research UK when discussing packaging for vapes. The organisation is obviously in support of placing some restrictions on packaging to reduce youth vaping, but it believes that the right balance must be struck between dissuasive and neutral packaging. Interestingly, it said that it does not believe that vape packaging should be made to resemble tobacco packaging in order to reduce worsening harm misperceptions, which builds on the point made by my hon. Friend the Member for Windsor.

Cancer Research UK said that more evidence is needed to determine which colours would reduce the appeal for young people, but it is important that in doing so, we do not reduce access to vapes for adults who use them to quit smoking. It said that it wants to avoid worsening misperceptions that vapes are as harmful as, or more harmful than, tobacco, so it would make sense to choose a neutral colour for vaping packs rather than the same drab green colour of tobacco packs.

The organisation went on to talk about displays, which was a point raised earlier, but it is also interesting in this wider piece. Cancer Research UK said that, to make vapes less appealing to young people, they could be behind the counter but still on display. In its view, if the UK Government change the packaging of vapes through the powers in the Bill, that will go a long way to reducing the appeal of vapes overall, and therefore they might not need to go as far when restricting the display itself. It argued that the balance would help to ensure that vapes are still visible and accessible to adults who wish to use them to quit. It would also create a differential from tobacco, so that vapes would be behind the counter with less appealing packaging, but still visible to adults who smoke and want to quit.

[Dr Johnson]

Does my hon. Friend agree that when the Minister is considering the regulations under clause 90, he needs to consider not just what the packaging would look like in a real-world shop, but how he can ensure that the same product will not simply be available online in the original packaging?

[Sarah Bool]

My hon. Friend makes a very powerful and valid point. I would like the Minister to address how we are going to tackle the issue online. If someone cannot go into a physical shop, going online is the next alternative, and we want to ensure that we protect our young ones as much as possible.

I want to highlight one other point from Cancer Research. It said that it is also important that the legislation future-proofs against the use of bright coloured lights or similar displays that could appeal to young people. Again, we need to be careful of that. As has been said, manufacturers are often very good at finding their way around these regulations, so we do not want to make the products attractive in another vein.

My second point focuses on clause 90(3)(b), which says that provisions may be made about

“the information provided on packaging or otherwise supplied with a product”.

We had some evidence submitted from the North East Public Protection Partnership, which is a regional partner-ship that brings together chief officers of 12 local authorities in the north-east, representing environmental health, trading standards and licensing services. The partner- ship is in support of the measure, but believes that certain requirements should be put on packaging itself—it thinks that inserts in the packaging should be regulated. I have learnt, as I have not come across them often before, that inserts are used internationally, in Canada and Israel. They are proven to encourage people to give up smoking when they are placed inside the packaging. They usually contain positive messages to encourage people to quit—for example, by going into detail about improved breathing within a matter of days of quitting or the 50% reduction in the risk of heart attacks within a year, or by detailing how much money a smoker is likely to save.

The North East Public Protection Partnership believes that there should be specific regulations around the inserts and the packaging, setting out the type and size of font, the colour, the layout, and dimensions. It thinks that the specific information to use on packaging should be defined and that the information provided on where to seek more help to quit should also be included. It also says it is essential to set a date for suppliers for when packaging must appear on the UK market and that the penalties on manufacturers for non-compliance should be set out.

The partnership also said:

“The Government will need to liaise with Trading Standards in order to ensure that the appropriate offence, or offences, are included in regulations on pack inserts. We would recommend an offence is included which relates to the sale or supply of a tobacco product without the correct insert, so that Trading Standards can take enforcement action against the person selling. An example of this includes the Tobacco and Related Products Regulations 2016 where there is an offence to produce as well as supply product in breach of regulations.”

Finally, it adds:

“Health messaging should be on the outside of all tobacco, nicotine and vape products.”

My final question to the Minister is: have he and his Department turned their mind to inserts, what they might contain, and the role they could play in future?

[Andrew Gwynne]

We have had a good debate on clause 90—that is all we are up to.

To answer why this is an issue, unlike standardised cigarette packaging, vape packaging can—as we have already heard—come in many different colours, styles, and shapes. The previous call for evidence that the shadow Minister referred to showed that this increases the appeal of vapes to children, and it can encourage them to start vaping. That is what we want to crack down on with this clause.

A number of Members have asked why we are extending the provisions, given that tobacco packaging is already standardised. Only cigarettes and hand-rolled tobacco are subject to the most stringent regulations. This includes standardised packaging, specified packet shape, amount within packs, material, colour and appearance requirements, and so on. In England, around five times more people smoke other tobacco products, such as cigars, than a decade ago. There has been an increase in that consumption and we are committed to addressing this, which is why we are extending the measures to other tobacco products.

In terms of requiring dissuasive messages, of course, these are things that we can look at in the future—it is not something that we are looking at now. We will be mandating pack inserts for cigarettes and hand-rolled tobacco packaging, and we will be running a call for evidence on standardising the packaging of all other products. The shadow Minister, the hon. Member for Sleaford and North Hykeham, asked whether the Secretary of State or Ministers will use the powers. We are coming to Parliament with this landmark Tobacco and Vapes Bill, as we committed to in our manifesto, precisely because we want to use these powers. We are seeking these powers. The Scottish Ministers, the Welsh Ministers, and the Northern Ireland Minister are seeking these powers precisely because we all want to use them to tackle the scourge of youth vaping and move our country to smokefree 2030. Our manifesto committed to stopping vapes being branded to appeal to children, and the Bill provides new regulation-making powers to make this commitment a reality.

As has been alluded to, Members have asked over the course of our deliberations why the restrictions are not on the face of the Bill. In particular, the shadow Minister has gone into the level of detail that we will go into when the regulations are brought before the House, following consultation. My answer is that the technical and detailed nature of the requirements means that they are not suitable to be put on the face of the Bill. We might need to amend the requirements in response to future developments in the market, and scientific knowledge and evidence may change, which means that we will have to react where appropriate. It might also be necessary to gather further evidence post-implementation—this is precisely the point that the hon. Member for Farnham and Bordon made about ensuring that everything is evidence-based, that the data is there and that we scrutinise it, rightly. We may well come to decide that our regulations are the wrong regulations, or that they were the right regulations three years ago, but now need to be changed. That is the why the powers in the Bill are permissive.

It is also important to gather information about the effectiveness of the packaging regulations, to see whether they have indeed discouraged youth vaping. All the evidence from other jurisdictions that do this suggests that they will; however, we need to ensure that the evidence is relevant to the United Kingdom. We will also need to keep a close eye on what happens to adult vapers, particularly those who want to stop smoking, and whether vapes remain accessible to adults who are trying to quit smoking, which is something we need to be clear about.

To be clear, the requirements for vape packaging are yet to be determined, as I said in an intervention on the shadow Minister. The proposed restrictions will be subject to consultation, to ensure that any unintended consequences on adult smoking rates are considered. Research suggests that neutral packaging can remove appeal to youth without being dissuasive to adult smokers—the point made in the information from Cancer Research UK, which the hon. Member for South Northamptonshire rightly raised. Further analysis and consultation will take place before any regulations are made, because we absolutely want to get this right.

It is crucial that we do not rush into this, but have measures that are proportionate and workable, and that there are no unintended consequences. That is why there will be a transition period for businesses before any new regulations come into force, and the length of the transition will be considered as part of the consultation process. This is a balance to be struck between acting quickly to curb youth vaping and carefully considering unintended consequences on smoking rates, in order to ensure the most impactful change possible. That is why we have included a statutory duty to consult, to ensure that the relevant stakeholders are engaged, and to consider their responses and insights as regulations are developed.

Of course, we will provide more information about the timeline for our secondary regulation programme once we have Royal Assent, but let me make it clear to all members of the Committee that it is our intention to move at pace. We want to use these powers, so we want to make sure that, once the Bill becomes law, we start the process of getting the relevant regulations in place, especially for smokefree, because although many of the measures in the Bill will come into force on 1 January 2027, some regulations might be done beyond that date. We will have a lot of work to do in secondary legislation, to get the measures in the Bill—which we hope will all be approved in the course of our deliberations prior to Royal Assent—so that we can hit the ground running and get to 1 January 2027 smoke-free.

[Dr Johnson]

I am glad to hear that the Minister wants to use the regulations and strengthen the regulation around vaping—although I appreciate that that is not the view of the entire Committee—but he is talking about 1 January 2027, which is almost two full years away. Does he anticipate that the packaging regulations will come in before or after the legislation on the smoke-free generation?

--- Later in debate ---

[Mary Kelly Foy]

No, I do not. As I said, the Department is consulting on pack inserts, but that may not capture the people who have or are offered one cigarette. We all know that it takes only one cigarette to become addicted. Does the Minister have a timeframe that the Department is working to for the introduction of pack inserts? Will the Department monitor the effectiveness of that and continue to look at evidence from other countries, such as Canada, where dissuasive cigarettes do have an impact, and potentially use the powers in the Bill to introduce dissuasive individual cigarettes at a later stage?

[Dr Caroline Johnson]

I thank the hon. Member for City of Durham for tabling this amendment, supported by my hon. Friend the Member for Harrow East (Bob Blackman). I suspect that it is a reversal of the process from the last Committee, when my hon. Friend was on that Committee and moved a similar amendment, which was supported by the hon. Lady.

This is not a new suggestion. In fact, looking back at the debate from the last iteration of this Bill—I think it was about new clause 5 at the time—I discovered that it was the noble Lord Young of Cookham who first proposed warnings on cigarettes in 1979. He said:

“The solution to many of today’s medical problems will not be found in the research laboratories of our hospitals, but in our Parliaments. For the prospective patient, the answer may not be cure by incision at the operating table, but prevention by decision at the Cabinet table…Historically, a nation would look to its doctors for better health. Now they should look to their Members of Parliament.”

That is one of the reasons why I am here, standing with you today, and why I see a number of other medical professionals on the Opposition Benches. Parliament offers the opportunity not to look after one’s patients one at a time, but to look after the health of many patients all at the same time. I hope that we will seize that opportunity in relation to the public health measures in much of this Bill. My noble friend in the other House, Lord Young, has now been in Parliament for over 50 years—I hope we will get round to bringing forward some of the things he has proposed before another 50 years go by. The proposal was supported not only by the noble Lord Young, but by Sir Stephen Powis, then director of NHS England, and by the Khan review.

However, I have a couple of questions. I understand the point that my hon. Friend the Member for Windsor is making, which is that if people sell cigarettes only in packages and the packages are, as we have discussed, very thoroughly controlled in terms of what they look like and what they say, is it then necessary to mark the cigarettes that are inside them? I also understand that in clause 4, we as a Committee have chosen to introduce a measure that bans the sale of single cigarettes, but despite that being something people should already not do, it does happen, as we heard from the Royal College of Physicians in its evidence at the beginning of the Committee proceedings on 7 January.

There is some benefit to marking the cigarettes. It is also the case that it does not look terribly cool to have a stick sticking out of one’s mouth that says “Smoking kills”, and I get that. One question I would ask, though—perhaps the hon. Member for City of Durham will know the answer to this—is what they use to dye the papers chemically and what the effect of breathing in the smoke from the dyes is.

We talked about cigarette papers and why they are being banned at the beginning of the Bill; we talked about the chemicals put into cigarette papers to colour the paper, to ensure that the ash is white, to control how fast it burns and so on. If cigarette papers are to be marked with a message, that will require inks of some description, which will then be burned and the smoke from them inhaled. I do not know whether the hon. Lady has information on whether that can be done without adding additional harm to an already harmful product. On the one hand, what is the benefit of adding the message to reduce people’s uptake of cigarettes, and on the other, what harm is added to the cigarette by adding the message?

Cigarette papers already have a lot of pictures on them. I do not know whether the Minister will change that under clause 90, but health warnings on cigarette papers, as opposed to the cigarettes that come pre-rolled, would have the same effect: if one is printing a message on them, what harm is one adding and what risks is one taking away? I suppose he would have to look at both the risks and the benefits.

Clause 91 relates to the features of the products. Subsection (1) authorises the Secretary of State to make regulations on the features of various products, including

“(i) tobacco products,

(ii) tobacco related devices,

(iii) herbal smoking products,

(iv) cigarette papers,

(v) vaping products, or

(vi) nicotine products,”,

covering such aspects as the marking on the products, including branding, trademarks and logos, and the information provided with them. It also includes regulations on the appearance, size and shape of products and any distinguishing features that could differentiate brands.

Subsection (2) states that the regulations may include

“prohibitions, requirements or limitations in relation to the production, importation or supply of such products in the course of business.”

Subsection (3) clarifies that regulations made under this section are also subject to the affirmative resolution procedure, so the Minister is correct that at some point there will be a short delegated legislation meeting to debate them, but there will not be as much time to scrutinise them as there is in this Bill Committee.

The shape and size of packaging and of products have changed over time. Tobacco always used to be sold in bulk or in pouches by weight and wrapped in simple paper packaging. Cigarettes were not very common, and most tobacco products at that stage were loose-leaf cigars or pipe tobacco. The size and shape of the packages was straightforward, and the design at that time was more for preservation than marketing. As the industry grew, they became more standardised and recognisable. The first iconic package designs were rectangular boxes, usually made from cardboard, with a flip-top opening containing 10, 20 or 25 cigarettes.

--- Later in debate ---

[Sarah Bool]

To build on that point, it is interesting that, often, one of the biggest difficulties for those who smoke and want to stop is missing the physical act of holding a cigarette. It would be interesting to see whether these regulations can take that into account and, while not being aimed at children, aim them in a way that would help people who want to move away from smoking, in terms of the physical side of it. Does my hon. Friend have any further thoughts on that?

[Dr Johnson]

I thank my hon. Friend for that important point. She is right: if a smoker is trying to quit cigarettes, why would a device shaped like a highlighter pen be needed or desirable? I can see why that is desirable to children, as I have said, but why would it be desirable to an adult?

Perhaps the Minister is choosing, on balance, to protect children from vapes that they may be able to easily conceal from parents, caregivers and teachers. He may have come across industry suggestions that regulating vape appearance would reduce the appeal of vapes to adult smokers, but I am not sure that is true. In fact, even if there is evidence that it is true, I suspect that the majority of adult smokers will be so keen to protect their children from taking up the habit of being addicted to nicotine—that those smokers have fought so hard to quit themselves—that they would be only too happy to have a standard-shaped vape to ensure that children are not brought into nicotine addiction. Subsection (1)(e) allows the shape to be regulated, and paragraphs (d) and (f) allow the size and other features to be regulated.

The Government have sought to look at the impact of this policy. The mod or tank devices are often wrapped in more neutral packaging. Vape liquids and disposable vapes are regularly sold and marketed with brightly coloured designs, as we have said. In fact, it is not uncommon to see them displayed as a rainbow. Again, I think that is designed for children. The cartoons and flavours—we will come to flavours later, so I will not talk about them now—increase children’s intention to try different vaping products.

In their impact assessment, the previous Government consulted on options that could be implemented using the powers conferred by this clause. Option one was to do nothing. That would have meant that there would continue to be no regulations on the product presentation of nicotine and non-nicotine vapes, which would essentially be a rejection of clause 91. Option two prohibited the use of cartoons, characters, animals, inanimate objects and other child-friendly imagery, including on the vape device, but still allowed colouring and tailored brand designs—35.8% of respondents were in support of that option. Option three prohibited the use of all imagery and colouring on both the vape packaging and the device, still allowing for branding such as logos and names —18.2% of respondents were in support of that option.

The previous Government also consulted on the more stringent option four, which prohibited the use of all imagery, colouring and branding for both the vape packaging and the vape device. That option was somewhat equivalent to the standardised packaging rules on tobacco, and 46.1% of respondents were in support of it, showing that the general public, as consulted by the previous Government on the powers in relation to vape appearances, favour the more stringent regulatory option, which would be open to the Minister should clause 91 go through. When I began my campaign to tackle vaping, I found a number of examples of products shaped in bright, child-friendly cases, some even with cartoon characters.

We know that product presentation, as in clause 91, must be considered separately from the packaging, as we considered previously in the debate on clause 90, because for many vaping products, the small, smooth, colourful cases the vape is enclosed in is part of the attraction for children and for non-smokers.

Paragraph 1101 of the impact assessment states:

“According to ONS data on adult vaping prevalence in Great Britain, 31.6% of adults that currently vape are also current smokers, and 18.7% are ex-smokers. The exact impact on the number of smokers not quitting and ex-smokers relapsing as a result of regulating would depend on what vape packaging and product presentation was regulated.”

It is clear that the difference will depend on which step someone takes, but it is also clear that option 4, which is a more stringent approach to the regulations on offer in clause 91, would be preferable. Action on Smoking and Health provided some evidence to the Committee on how vapes are branded and promoted in shops. It talked about limiting their display, as was described by my hon. Friend the Member for South Northamptonshire earlier.

I now turn to tobacco-related devices, herbal smoking products and cigarette papers, as mentioned in the impact assessment. Although the vaping regulation is much newer than the tobacco regulation, the powers in clause 91 offer the Minister an opportunity to regulate tobacco products, herbal smoking products and cigarette papers further than he has done. Section 94 of the Children and Families Act 2014 already enables the Secretary of State to make regulations on features of tobacco products across the UK. Clause 91 will widen this power so that tobacco-related devices, herbal smoking products and cigarette papers are all within the scope of regulations.

On herbal smoking products, cigarette papers and tobacco-related devices, a simple internet search brings up sites, such as Etsy, advertising papers and rolling trays with cartoon characters. One can get a Hello Kitty grinder. In fact, it is not just a picture of Hello Kitty but a picture in which Hello Kitty appears to be vaping. There are rolling trays with pictures of Princess Jasmine, Cinderella and Snow White. Again, those characters are smoking in the picture—I am sure they are not from any Disney production; I certainly do not recognise them from any of the Disney productions I have watched.

Apart from copyright issues, such images are a clear ploy to entice younger audiences. One questions the legitimacy of the plastering of those brands on the products. Have they given their permission for these images? I very much doubt Disney has given permission for its cartoon characters, such as the Disney princesses designed for younger children, to be used in pictures of smoking or vaping.

[Sarah Bool]

Etsy is a very good company; it enables small businesses to sell their products, which is admirable and laudable, but I agree with my hon. Friend that it is entirely inappropriate for images of Disney characters to be changed. Sometimes the changes involve putting glasses on them, which is good as that makes young children feel that they are not isolated if they look slightly different. However, it is outrageous to make the characters appear to be using smoking products. I hope that the powers under this regulation will prevent that from happening further.

[Dr Johnson]

I thank my hon. Friend for her point. Of course, Etsy is an online marketplace. We have talked already about the difficulties in regulating some of these changes in the online world and about the fact that some of the current regulations on tobacco products can be circumvented by the purchase of online products. People can circumvent regulations on things such as snus by buying them online from overseas. When the Minister brings forward regulations under clause 91, how will he ensure that they are applied and enforced in both the offline and online world, which is so crucial these days, particularly for younger people?

Cancer Research UK provided evidence relating to the change of packets and products. It said it would respond to the consultation. The British Medical Association also provided written evidence. I declare an interest: as well as being a consultant paediatrician, I am a member of the British Medical Association. In relation to clauses 90 and 91, it suggested

“All imagery, colouring and branding should be prohibited”.

--- Later in debate ---

[Gregory Stafford]

That is very helpful. If I have not already seen it in the evidence packs that have been sent to us, then I will look that up.

I move on to clause 91—the features of the product. Implementing the regulations could require significant adjustments from manufacturers. To quote the Minister back to himself, he wants to move “like the clappers” on this. Although I welcome that, there needs to be a period where manufacturers have the opportunity to adapt to the rules.

[Dr Johnson]

“Like the clappers” sounds quick, but it has not been defined any further than that, which leaves us in the dark. There is also a balance to be struck. On the one hand, manufacturers may need time to adapt, but on the other hand every day that these attractive products are available to children is another day when more children will become addicted to them.

[Gregory Stafford]

My hon. Friend makes a key point, and she has been making it throughout our discussions, as have others. Clearly, we want to move as rapidly as possible to ensure that as few children as possible are addicted to cigarettes or ever pick one up. I completely agree that we should move as fast as possible, but we need to do it in a sensible way to ensure that manufacturers can implement what we want them to implement, and that we do not end up in a situation where they are caught out by that.

--- Later in debate ---

[Andrew Gwynne]

I am grateful to the Committee for this discussion. Amendment 5 and new clause 1 require the Secretary of State to consult on regulations to introduce health warnings on cigarettes and cigarette papers. I am sympathetic towards the aim of the amendments, which encourage current smokers to quit by providing them with information on the harms of tobacco.

However, the UK already has some of the most stringent regulations in the world on tobacco packaging, which emphasise the heath harms of tobacco. That includes the requirement for plain packaging and graphic picture warnings on the outside of cigarette packs. A post-implementation review published in 2022 stated that these measures still remain effective in helping smokers to quit and in deterring children from taking up the habit. As set out in our response on 5 November 2024 to the consultation on tobacco pack inserts, we will implement positive quit-themed health messaging into the packaging of cigarettes and hand-rolled tobacco. That could contribute up to 150,000 additional quit attempts and 30,000 successful quits over two years.

We are also going further. We will look to extend the legislation on pack inserts to cover all tobacco products, tobacco-related devices, cigarette papers and herbal smoking products. To do that, we are running a call for evidence on standardised packaging to consider introducing more stringent packaging requirements for the different tobacco-related product types wherever possible.

On pack inserts in particular, my hon. Friend the Member for City of Durham asked about implementation. Of course, we are working to implement that as soon as we can, but only after engagement with relevant stakeholders, as I said in the previous debates. We will consult on the final specifications before laying the legislation before Parliament. There is a lot of clapping going on; this is something else on which we will be working like the clappers to get over the line. I hope that reassures my hon. Friend that pack inserts are a priority for the Government. We will move at pace to get that done.

On a technical note to my hon. Friend’s amendments, the Bill restates the existing power to make regulations on the appearance of tobacco products, including cigarette sticks. Not only that: it goes further and extends that power to other products, including cigarette papers. We therefore do not believe that the amendments are required to bring in dissuasive messages on cigarettes, because the powers already exist in this Bill should Ministers seek to consult in the future and bring forward secondary legislation.

While it is not our plan to introduce dissuasive messages on cigarettes at this time, because we already have strong health warning measures in place, we will continue to monitor the evidence. As has rightly been said, we want to be evidence-led in the measures we seek to introduce. I want to see the success of such measures in Canada and elsewhere so that we can use that evidence at a future stage.

While my hon. Friend the Member for City of Durham has indicated that she will withdraw the amendments, I hope I have given her some reassurance that the amendments are not needed because we have the powers to do precisely what she wants to do. At some stage in the future, a Minister—it may or may not be me—may come forward with secondary legislation following a consultation.

[Dr Johnson]

The Minister has been clear that he believes he has the power under clause 91 to put the messages on the cigarettes if he chooses to, which is interesting to note. Will he clarify whether that remains the case with information inserts? The clause refers to the appearance of the products, the shape and the messaging. Will it include pack inserts?

[Andrew Gwynne]

What the amendments seek to do is to put the messages on cigarettes themselves. Those powers exist in the Bill. I do not understand what the shadow Minister is talking about, because pack insert measures are happening: we will be moving at pace to ensure that they are further consulted on, that legislation is brought to Parliament and that we get the pack inserts in place. As far as dissuasive cigarettes are concerned, that is not our intention at this stage, but powers exist in the Bill for a Minister to consult and bring forward secondary legislation to put health warnings on individual cigarettes should Parliament and Government decide that that is the right thing to do.

Clause 91, included in part 5, provides the Secretary of State with the powers to make regulations about the future of vaping products, tobacco products, tobacco-related devices and nicotine products as well as cigarette papers and herbal smoking products. The clause would allow the Secretary of State to regulate what information should be provided on a product as well as the size, shape and appearance of a product.

It is vital that we reduce the appeal of harmful and addictive products to children. A key part of that is through how these products appear themselves. There are currently no limits whatever on what a vape can look like. As we heard in evidence, there are vapes that look like highlighter pens and computer pen drives. There are vapes that look like mobile phones. There are vapes that are concealed in hoodies so people can vape through the string of the hoodie. These are pernicious attempts to hook young children and adolescents on nicotine products. That is why the measures are so crucial.

--- Later in debate ---

Members have asked questions about online sales, and it was remiss of me not to answer the hon. Member for South Northamptonshire when debating the previous clause. I can answer her in relation to this clause. Regarding cigarettes, no image of a product can be used online if it does not comply with the packaging regulations. Advertising is banned anyway, so any imagery that would appear in advertising cannot appear, right now, and on online marketplaces like Etsy—which we have also discussed in relation to this clause—products that do not meet the requirements of the legislation, including for registration and licensing of products, and for the licence of the person selling, would be in breach of the law. I hope that gives her some reassurance.

[Dr Johnson]

We had a little search at lunch time and found some examples that may contravene the law. Can the Minister advise to where we should refer those for enforcement?

[Andrew Gwynne]

Of course, trading standards enforces the sale of these things, so if the hon. Lady has concerns about particular products being sold in the online sphere, the first port of call is trading standards, which can investigate and take the appropriate action.

Regarding enforcement of online sales, the Bill enables Ministers in England, Wales and Northern Ireland to introduce the licensing scheme that we have already debated for retail sale, including online retail sale, of tobacco, vapes and nicotine products. Penalties will be capable of being brought against retailers who do not adhere to sales regulations. Obviously, as we have discussed —I do not want to tread on old ground—we will consult on the details of the licensing scheme before regulations are laid. Moreover, in the financial year 2025-26, this Government will invest a total of £30 million of new funding for the enforcement agencies, including trading standards, His Majesty’s Revenue and Customs and Border Force, to tackle illicit and under-age sales of tobacco and vapes, supporting the implementation of measures in the Bill.

The hon. Member for Farnham and Bordon rightly raised some concerns about how long manufacturers and retailers will have to implement the changes. There will be a transition period for businesses before any of the new regulations come into force. The length of the transition will be considered as part of the consultation exercise. There is clearly a balance to be struck between acting quickly to curb youth vaping and carefully considering the unintended consequences that we are all worried about. That is why these measures are a proportionate step. However, let me be clear that we will not stand idly by while industry knowingly and deliberately encourages children to use a product that will addict them to nicotine. Industry has failed to self-regulate. The fact that a quarter—25%—of all children aged between 11 and 15 have vaped shows that self-regulation has failed. We must now intervene to ensure that this can no longer happen—or get worse.

We are not banning the sale or manufacture of vapes; rather, we are ensuring that all the measures that we are talking about happen in a proportionate way that seeks to remove the harm and risk to our children and future generations. However, let me be clear that industry self-regulation has failed. That is why I call on hon. Members to support clause 91.

[Andrew Gwynne]

This clause provides the Secretary of State with powers to regulate substances, and the amount of a substance, used in vaping products, tobacco products, tobacco-related devices, nicotine products, cigarette papers and herbal smoking products.

We know that the use of tobacco products and herbal smoking products can increase when they are flavoured or are used alongside flavour accessories. For instance, menthol cigarettes appeal to young people because, compared with non-menthol cigarettes, they make it easier and less harsh to inhale smoke. That is why the sale of menthol-flavoured cigarettes was rightly banned in May 2020 by the previous Government, and I give credit to them for moving on that issue.

It is therefore very concerning that industry has used the same tactics for vaping and nicotine products. Research shows that children are attracted to the fruit and sweet flavours of vapes, both in their taste and smell, as well as how they are described. We have heard a lot over the past few weeks, particularly from the shadow Minister, as well as from others, about flavours such as gummy bear and rainbow burst. Unicorn milkshake was another favourite of the shadow Minister—not that I am suggesting that she vapes, just that it is one of her favourites to refer to.

[Dr Johnson]

I would rather the Minister said that it was a flavour I have commonly referred to than a favourite flavour, because I honestly cannot tell him what a unicorn’s milk tastes like.

[Andrew Gwynne]

I would not have a clue either, because I am one of those boring individuals who has neither smoked nor vaped. I am now 50 years old, and I do not intend to start either in my next half century—now that I have had my liver check, I know that I am going to live for the next half century.

There is no reason why flavours such as gummy bear, rainbow burst or unicorn milkshake should be made available. They clearly target one audience, and one audience only: children. We cannot let industry repeat the same tactics it used to hook a generation of children on cigarettes by enticing the next generation to start and continue vaping.

Furthermore, some specific substances can increase the risk of harm to users and must be properly regulated or banned completely. Equally, any tobacco accessory that imparts flavour should also be banned. The clause will mean that the Secretary of State can close the current loophole.

However, we recognise that vape flavours can be a consideration for some adult smokers, as was mentioned earlier, and particularly those seeking to quit smoking. To avoid any unintended consequences, the scope of future restrictions will have to be carefully considered, with a statutory duty to consult on any proposed restriction, to ensure that we get the balance right.

What we do not want to do is dissuade people for whom vaping is the best stop smoking tool from stopping smoking. The advice of the chief medical officers of the four nations was clear: “If you smoke, it is safer to vape. If you are a child, you should never vape and never smoke. If you are a non-smoker, the same is true: never vape, never smoke.” We have to ensure that we do not throw out the baby with the bathwater and revert those who we wish to stop smoking back to smoking.

That point has to be carefully considered when the consultation and the secondary legislation comes before Parliament, but let me make it clear: we will not allow these child-friendly flavours that are blatantly in existence for one purpose only, which is not to stop adults smoking; it is to hook kids on nicotine. That has to stop, and that will stop.

[Dr Johnson]

Does the Minister want to comment on the range of flavours available, and whether he thinks that has any impact?

[Andrew Gwynne]

It absolutely does. That is why these powers are framed in the way they are. It is something that the Secretary of State and Ministers, when considering the balance that I have just talked about, may well take into consideration. We still want vaping to be accessible and available to people as a stop smoking tool. We recognise that one of the attractions of vapes over cigarettes is that they tend to taste nicer—or so I am told. If cigarettes taste anything like how they smell, I can understand why that is the case.

What we do not want to do is create a loophole that retains the attractiveness of vapes to children. The range of flavours will also have to be considered in any future consultation so that there are no unintended consequences. We must get the balance right and stop these awful products being promoted to kids in the most pernicious way while respecting the fact that for a number of people, vapes are a route out of smoking. With that, I commend the clause to the Committee.

[Dr Johnson]

I am grateful to the Minister for setting out aspects of the clause, and particularly for his passionate speech making clear that he wants to see vaping among children stop. When I first brought forward on the Floor of the House measures on vaping, it was with the intention of protecting children from the rapidly rising trend before they became hooked on a form of nicotine. I am grateful that the Minister seems to share the same passion for protecting children; that is good to see.

Clause 92 deals with the contents and flavour of tobacco, vaping and nicotine products. It provides for the Secretary of State to make regulations on the flavour of relevant products and the substances that may be included and their amount in any relevant tobacco, vape or nicotine product.

--- Later in debate ---

[The Chair]

No, I am quite happy for you to carry on, although I should clarify that if the Division bell goes, I will interrupt you. I am assuming that the Division will be in five minutes or so, so if you wish to carry on you can, or we can suspend now.

[Dr Johnson]

If the Government Whip is happy, we will keep going.

As well as cigars and cigarettes, smokeless tobacco products such as chewing tobacco and snuff became available in various flavours, including mint, apple and peach. These products targeted those who preferred an alternative to smoking while still seeking the satisfaction of nicotine. Flavoured smokeless products, in particular, gained popularity among younger users because of their sweet flavours and more discreet use.

From the 1990s onwards we have seen an acceleration in the marketing of flavoured nicotine products, particularly those aimed at younger people. At this time, the tobacco industry shifted focus towards expanding its consumer base by targeting young people through advertising and product innovation. Flavoured cigarettes, cigars and smokeless tobacco became a key part of the strategy, with marketing campaigns emphasising the fun, sweet flavours. Notable products that emerged were fruit and dessert-flavoured cigarettes, often marketed in coloured packaging designed to appeal to younger, fashion-conscious consumers. Brands such as Marlboro, Camel and Newport produced sweet, fruity flavoured cigarettes including cherry, vanilla and grape varieties. Tobacco companies also started adding candy-like flavours such as sour apple and berry to smokeless products.

The quest for flavoured products is part of a broader marketing effort to make tobacco use more socially acceptable and less intimidating. These products were seen by some as more approachable, less harsh and more in line with consumer taste, whereas sugary and fruity flavours dominated the food and beverage industry. Recognising the role of flavoured cigarettes in widening the appeal of smoking, various countries began outlawing them in the 2010s. In 2016, flavoured cigarettes, including menthol cigarettes, were banned across the European Union and in the UK in response to the European tobacco products directive.

In response to that directive, the tobacco industry sought new ways to circumvent the ban on flavoured products and to continue to appeal to customers. These methods included introducing flavoured filters and flavoured papers for those who hand rolled cigarettes. Menthol papers and filters are widely accessible from retailers across the UK, both in store and online. British shoppers can also access, on websites such as Amazon, a gallery of flavoured cigarette papers including apple, cherry, peaches and cream—including ones with pictures of apples or peaches on them—as well as a few old favourites familiar to those in the vaping industry, such as chocolate, liquorice, bubble gum and cotton candy. One may almost forget they are smoking tobacco—perhaps that is the point.

No discussion of flavours would be complete without mentioning vapes. With the advent of vapes in the 21st century, we have seen an eruption of flavours on to the market, sometimes of the most implausible kind, the unicorn milkshake referred to by the Minister being an example—I have certainly never seen a unicorn or its milk. The standard menthol and fruit flavours are popular, but many more unusual flavours lurk in the dark corners of the vape market, including butter, roast chicken, garlic, tuna, black peppercorn, bacon and Worcestershire sauce. There are websites containing reviews of those flavours—some are not terribly popular, but there are lots of different flavours available.

While some of these are obviously more novel flavours, there has also been a rise in flavours with clear appeal to children and seemingly little appeal to adults, such as candy floss, fruit loops, milkshake and bubble gum. If that sounds too grown up, I understand that the vape market also offers not just unicorn milkshake, but unicorn blood, which sounds very sad, as well as honey bear and rainbow candy. Online, one can easily find vapes flavoured like specific sweets, such as Skittles, Starburst, gummy bears, jelly beans and Sour Patch Kids. It is not clear whether the owners of those brands have given permission for them to be used.

In dealing with an issue as wide-ranging as the flavours of tobacco, nicotine and vaping products, it perhaps worthwhile examining what products like this do to our society on a moral and aesthetic level. With that, the mind is drawn to Edmund Burke’s 1757 pamphlet, whose introduction is entitled “On Taste”, which is apposite to today’s discussion. Burke distinguishes between the rational and emotional elements in our judgment of beauty and taste. He posits that our emotional response to things—what pleases or displeases us—is so deeply tied to our senses and desires, which can sometimes override reason.

Flavoured vapes, with their artificially sweet, intense flavours and bright colours, cater to the immediate emotional pleasure of the consumer—what Burke describes as a “base” or overly indulgent form of aesthetic experience. These excessive and artificial flavours may distort or corrupt the finer faculties of taste. Burke identifies that aesthetics and taste have social and moral implications for society overall. No doubt he would view the proliferation of flavoured vapes as the very debasement of our society, especially if it targets youth or promotes unhealthy habits—as it does. Cotton candy-flavoured vapes, Burke would probably say, are an emotional and sensory indulgence that ultimately contributes to decay, where the immediate gratification of the senses trumps the more enduring experience that shapes a moral society.

That reminds me once again of when headteacher Laranya Caslin told the Health and Social Care Committee about students asking, “Have you tried this flavour? Have you tried that flavour? I prefer this one.” She said that

“if you want…to get involved in a social conversation and you haven’t watched the last episode of ‘Love Island’, you are a bit out of it,”

and explained that the same is true of conversations on vape flavours.

Ms Caslin made a very important point, which is sometimes neglected, that role of flavours—which is why they need regulating in clause 92—in this dynamic is not just about personal preference, but can for some children be about a sense of belonging. It is a powerful form of social currency. It is not just about the product itself, but about what it represents within the broader context of social life.

Some Members—but not the Minister, as he has been clear—may remember smoking cigarettes in their youth in an effort to fit in or look cool. The proliferation of flavours has made vapes more of a trend to be constantly followed and more than just a product; in many ways, they have become a cultural marker, as much the clothes people wear or the media they consume. We have heard examples of students who have chosen their vape for the day on the basis of its colour and flavour, to match what they are wearing.

The Government have looked at impact of clause 92. Paragraph 990 of the impact assessment states:

“In the UK, a 2024 survey by ASH shows that the most frequently used vape flavouring for people that vape under 18 years old is ‘fruit flavour,’ with 59% of people that currently vape under 18 using them, while 16% of children who vape choose sweet flavours such as chocolate or candy, and 5.9% choose to vape energy or soft drink flavours.”

I note the Minister’s comments about energy drinks in last night’s debate on obesity. The impact assessment continues:

“The use of flavoured vapes in adult smokers has also increased. In 2015, most adults who vaped used tobacco flavour. However, in recent years there has been a shift, and in 2023 more adults are choosing fruit flavours (47%), as well as mint and menthol (17%), than tobacco (12%).”

I asked one of the members of the industry very early on, “Why is it that you need the flavours?” [Interruption.]

--- Later in debate ---

On resuming—

[Dr Johnson]

I believe before we were interrupted we were discussing clause 92, which relates to flavouring provisions. The Tobacco and Related Products Regulations currently restrict certain ingredients, including colourings, caffeine and taurine, but do not restrict any combinations of flavour or flavour types. Multiple systematic reviews have found that a majority of young people are more likely to initiate vaping through flavoured vapes. The use of vapes with flavours traditionally not found in tobacco products, such as fruit and coffee, is higher among youths and young adults than older adults, highlighting that restricting flavours in vapes may reduce vaping prevalence among youths by preventing initiation.

The Government’s impact assessment for clause 92 estimates that restricting the flavour of e-liquids to tobacco only would affect a large proportion of people who vape. Among children, just 4.5% of those who vape most frequently choose tobacco or menthol-flavoured liquids. A further 0.5% reported not using flavour at all. That means that around 95% of children who vape could be affected in some way by the option of regulating the flavours of vapes.

The impact assessment goes on to note the relation- ship between a restriction on flavours and littering. Paragraph 1023 states that

“research commissioned by Material Focus found that almost 5 million disposable vapes are either littered or thrown away in general waste every week, equivalent to around 260 million a year. If the estimated reduction in demand for vaping products from Nova Scotia in Canada from restricting flavours of 12.15% is also seen in the UK, we could expect a similar reduction in the amount of vapes that are littered or thrown away in general waste. This would be equivalent to around 600,000 fewer vapes disposed of each week and around 30 million fewer each year.”

I understand that the Government have moved to ban single-use vapes. Nevertheless, the principle stands that having fewer flavours leads to fewer changes of product, and therefore to less litter.

There is also an impact assessment of enforcement of flavour restrictions. Paragraphs 1070 and 1071 of the impact assessment state:

“Any restriction of vape flavours could require additional enforcement activity to ensure that non-compliant vapes do not remain on the market…

There is also evidence from the US that enforcement of any flavour restrictions is important to ensure that it has an impact on the flavours that are used by people that vape. For example, a study based on the impact restricting flavours had on vape use in three US states found that most respondents to the survey continued to use vapes with flavours that had been banned, and out of them, over 45% had purchased them in-state stores.”

That leaves us with a difficulty. If flavours are banned but illicit products are made to look like they have different flavours in them, it will be quite difficult for enforcement officers to work out the contents of any given vape. However, as the Minister has said, the Bill only provides a regulation-making power; there are no enforcement costs arising from this particular measure, and it would be the responsibility of each local authority in England to enforce the regulations made using the powers conferred by the Bill. This matter must therefore be considered further. When writing regulations, the Minister must ensure that they are enforceable and that the necessary resources are made available to local authorities.

In its written evidence, Cancer Research UK highlights the importance of considering the motivations of smokers wanting to quit alongside the clear requirement to steer non-smokers away from beginning to vape. It states:

“It is important that there is a holistic approach to flavours. If the UK Government is changing the packaging and display of vapes (through other powers in the Bill), this will go a long way to reduce the appeal of vapes. Therefore, the Government may not need to go as far when restricting flavours. We believe that restricting the way flavours are described, rather than banning actual flavours could help reduce the appeal to young people with limited negative impact on adults who smoke. At the very least, CRUK believes that mint, menthol and fruit should remain available as there is evidence that these help adults quit smoking.”

One of the challenges the Minister will face if he is to restrict flavours rather than banning them is which he chooses to retain. The evidence that we have heard so far is that different chemicals are used to create different flavours, which seems somewhat obvious, but it is not clear that all companies use the same chemicals to make the same flavour, or the same apparent flavour, and it is not clear which chemicals may be harmful when inhaled over a long period of time. Strawberries are eaten quite safely by most people but inhaling one is very dangerous. We know from the chief medical officer that inhalation, as a vector of bringing a substance into the body, can be more damaging than eating it. How will the Minister choose which flavours to keep, if he is going to do so?

The other reason why I disagree to an extent with Cancer Research UK is that, when I asked people in the industry directly why they need flavours, they said, “Because it helps people to continue using vapes.” I asked them what their purpose is and they said, “If somebody is smoking, their taste buds are affected by the smoking. Therefore, their ability to taste and smell things is not as great as a non-smoker.” That means that when they stop smoking and start vaping, which we want them to do, they realise after a couple of weeks that tobacco vapes taste awful and, as such, they stop using them—and that is a good thing. They decide that they do not like the taste of tobacco and so stop using the product. That is the intention of nicotine replacement therapy: the smoker starts the therapy, they continue for a short period and then they stop, after which point they are not addicted to nicotine or using anything.

It was clear from speaking to the industry representatives that individuals will begin using vapes for the flavour. If they do not like one flavour, they will go on to a different one, but they will then continue to use the product as it is more pleasant than a tobacco-flavoured one. Instead of moving them from being a cigarette smoker, to a vaper, to a non-user of nicotine, flavoured vapes will move them from being a cigarette smoker, to a vaper—and there they will stay. For the industry, they have not swapped to stop; they have swapped to continue paying the money and making the profit. I can see why that is the industry’s intention, but it is clearly not the Government’s intention or the right thing for the individual’s health. I think that is an important consideration and I would be interested to hear the Minister’s views on it.

In its evidence, Action on Smoking and Health talks about flavour descriptors, and it is certainly true that, where flavours are retained, the descriptors will be important. ASH says that gummy bears and unicorn shake are not acceptable, and it goes on:

“In New Zealand they have set out in regulations which words can be used to describe flavours, removing descriptions such as Cotton-Candy and Bubble-Gum and replacing them with more generic flavour descriptions.”

Again, it comes back to the problem of what is in each individual flavour, which ones should be kept—if any at all—and why.

The evidence from ASH continues:

“Manufacturers must choose a maximum of two flavour descriptor words from an approved flavour list. The approved flavour list should limit the descriptors which are most popular among young people. An alternative to the New Zealand approach would be to replace product names with alpha numeric codes…For example, caramel tobacco flavour e-liquid refills can be bought garishly branded with a cartoon character on the front called Momo Salt Caramel Tobacco. Alternatively a very similar tobacco caramel vanilla salt e-liquid can be bought in plain packaging with an alphanumeric code of RY6, with the flavour components in the detail rather than the product name. Such an approach could be mandated.”

Has the Minister considered people who have allergies to all these different flavours? Has he considered whether the details of what each vape liquid contains should be put very clearly on the packaging, so that if anyone has an allergy, which can in some cases be life-threatening, they are aware of what chemicals they are using?

[Gregory Stafford]

We are talking about clause 92, which concerns the restriction on flavours in vapes. Children are born with tastebuds that are more aligned to sweet flavours, so clearly vapes that are flavoured with sweeter content will be more appealing to children than those that are not. I therefore support the Government’s intention to ensure that, as far as possible, children are not tempted to purchase or are not given vapes under age. Children copy what adults do. They think that it is “cool” to copy things that adults can do that children are technically not allowed to do under the law.

[Dr Johnson]

My hon. Friend is probably much younger than me, but does he remember the sweets that were like little cigarettes, from when we were children?

[Gregory Stafford]

I am considerably younger—no, that is not true at all, and I certainly do not look it. I do remember the sugar things that look like cigarettes, and although I have said previously that I have never smoked anything, or smoked tobacco, clearly when we had those, we all pretended that we were smoking stuff, because, again, it looked “cool”.

When we were children, we forced ourselves to ingest things that we did not like the taste of; I am sure that we can all remember the first time we had a cup of coffee or, for most of us, a beer. We did not actually like the taste, but we pretended to like it until our neural pathways developed in such a way that we genuinely started to enjoy the bitterness and mildly caustic sensation that we experienced. It is also true that girls have a greater sensitivity to sugar and sweet flavours than boys do. That said, children crave, and are craving even more so these days, sweet flavours—often because they have a diet of processed foods that contain more sugar and salt, which train their tastebuds to be even more addicted, for want of a better phrase, to those sweet flavours.

Research shows that flavoured tobacco products, especially menthol and fruit-based flavours, make smoking more appealing to young people. We have heard about studies from around the world. The Centres for Disease Control and Prevention in the States found that 80% of young people who use tobacco started with a flavoured product. By regulating the flavours, clause 92 aims to curb that youth smoking initiation and promote healthier choices.

The clause aligns us with international standards. The hon. Member for City of Durham has already mentioned Canada, and the European Union has also implemented bans on flavoured tobacco products. Canada saw a 32% decline in youth smoking rates following a ban on menthol cigarettes, and we have also banned menthol cigarettes in this country.

However, the Minister needs to consider a study— I think it was in The Lancet—that showed that, despite the ban on menthol cigarettes, the number of people who ingest tobacco via menthol-flavoured means has not diminished significantly in the UK. That is not because they are buying menthol cigarettes illegally or through illicit means, but because the manufacturers have found ways of putting that menthol-based flavour into the products. That can include things such as filters and other things. Indeed, I googled this before I came into the Committee, and I can buy cigarettes—it said, “Great news! There are some great menthol cigarette alternatives available to shop for here.” Presumably that is totally legal and I could buy them in the UK.

My point is that the industry will try to get round the Government’s good intentions to ban menthol and other flavours in the vapes market. How does this legislation ensure that any kind of adaptation to a vape that can inject a flavour into it, not just the flavour of the product, is restricted and does not happen?

As I have mentioned, I have some given some consideration to the idea of smoking cessation, which my hon. Friend the shadow Minister mentioned. We obviously need to ensure that where vapes are being used as a smoking cessation aid, they are a “welcome” alternative to smoking tobacco. Beyond the health benefits, given that vapes are less harmful than smoking a cigarette, we must in some way incentivise those people using them as a smoking cessation tool to remain on them and not revert back to cigarettes.

[Dr Johnson]

My hon. Friend is making a very good speech. Does he agree that the Minister will have a huge challenge in working out which flavours to choose, if he is going to choose from some? Perhaps he is deciding whether he has banana or cherry, but if we do not know whether the banana flavour or the cherry flavour is the least harmful to the individual, which do we know to recommend to the smoker who is trying to quit?

[Gregory Stafford]

My hon. Friend makes a good point, which she has already made during her interventions on this clause. It is vital to understand what is in the chemical make-up of the different flavours when the Minister is making those decisions.

That brings me neatly on to my next point, which is about the flavours themselves. I know that the Minister and the shadow Minister have raised unicorn milk, tutti-frutti and bubble gum flavours and all those kinds of things. I suggest to the Minister that it is less the flavour itself that appeals to children—as my hon. Friend the shadow Minister said, I do not know what unicorn milk tastes like, and I doubt any child does either—but that the phraseology “unicorn milk” sounds exciting and appealing to a child, whereas orange or banana may be less exciting.

When the Minister looks at this issue, I suggest that he looks not necessarily to ban a flavour, but to ban the naming and descriptions of those flavours, which are clearly appealing to children. If someone is looking to stop smoking and is using a vape to do so, it is not unreasonable that they should know whether what they are buying is orange, blackberry or strawberry-flavoured, whereas the terminology being used, which we have discussed in this debate already, appeals to children.

I will bring my remarks to a close. I obviously agree with the Government’s intention to target specific flavours that appeal to young people to preserve harm reduction, but we need to monitor and assess the impact of that regulation over time. When the Minister winds up the debate on the clause, will he give some indication of how that analysis and the impact assessment of the bans on specific flavours has impacted on smoking cessation, hopefully stopping children being dragged into vaping?

--- Later in debate ---

[Andrew Gwynne]

Let me start with the point made by the hon. Member for South Northamptonshire on the need for agility. I have argued in respect to a number of clauses that we have to be agile. That is why the Bill is permissive in nature. It grants powers to Ministers to consult and bring forward secondary legislation at further stages. It also allows Ministers to amend the regulations, if set, or to introduce new ones if not at a future date, without having to go back through the primary legislation processes, to make the Bill always fit for purpose and for the future.

That is the case in clause 92. As I said in opening, we recognise that vape flavours are an important consideration for adult smokers seeking to quit smoking. To avoid unintended consequences on adult smoking rates, the scope and impact of any future restrictions will have to be carefully considered by Parliament, following consultation, in secondary legislation. We will consult further on any regulations on flavours before they are laid in Parliament. This is really important—I can assure Members that we are not saying here and now what the changes are likely to be. We want them to be considered based on the evidence and consultation, because we want to get the balance right between preventing youth vaping and not having the unintended consequence of pushing people away from vapes as a smoking cessation tool, thereby missing our ambition for Smokefree 2030.

[Dr Johnson]

Can the Minister give us some timescales for the consultation and explain the various details that it will add to the consultation done by the previous Government?

[Andrew Gwynne]

Again, the shadow Minister is skipping ahead of herself. We have to get these powers through Parliament. I cannot tell her the scope or extent of the consultation, the consultees, or the nature of the restrictions we may seek to bring before Members, because Ministers do not have those powers yet. All I can do is give her assurances that these matters will be looked at, at speed and within good time, to bring a set of regulations before a Delegated Legislation Committee in due course.

We want to get the balance right, as Members across the House have amplified not just in this debate but throughout the course of proceedings on the Bill, because these are big changes, and they are landmark changes. If we get them right, they will do everything we aspire the Bill to do not just in tackling child and youth vaping, but reaching a Smokefree 2030. If we get them wrong, we could end up with smoking rates increasing, which is not what we want to see. We could see children starting to smoke again, which is absolutely not what we want to see. We could see all the work done in recent decades start to be undone. That is not the ambition or aim of the Bill. The aim and ambition of the Bill is to make smoking history and crack down on the scourge of youth vaping. I believe that if we get the regulations right, we will meet that aim. That is a good thing.

--- Later in debate ---

[Dr Johnson]

Clause 93 is somewhat interestingly titled, but what does it do? Subsection (1) allows the Secretary of State to create regulations that concern

“the nature and amount of the substances that may be released into the body of a person”

using the following: tobacco products, tobacco related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. Subsection (2) states that the regulations may impose “prohibitions, requirements or limitations” on the “production, importation or supply” of these products in “the course of business.”

Subsection (3) clarifies that the regulations may specify how

“the nature and amount of substances or emissions released by a product are to be determined”

potentially by an authorised person designated by the Secretary of State. Again, the Minister may have comments on how the Secretary of State would choose such an individual.

Subsection (4) specifies that that these regulations will also be

“subject to the affirmative resolution procedure.”

This means there will be a vote in Parliament. In relation to this, section 13 of the Tobacco and Related Products Regulations 2016 currently sets a maximum permitted emission level for cigarettes that are produced by the manufacturer for export in the UK. Section 36 of that regulation sets out product requirements for e-cigarettes and refill containers, including current maximum nicotine quantities.

Paragraph 1403 of the impact assessment produced by the Government in relation to the Bill states,

“Currently, to supply certain tobacco, herbal, and nicotine vape products on the…market you must first notify your product. Producers must provide data such as the name and contact details of the person who manufactures the product, a list of all ingredients contained in the product, emissions resulting from its use, as well as toxicological data and a declaration that the producer bears full responsibility for the quality and safety of the product when supplied.”

In the UK, the EU tobacco products directive and the UK’s nicotine inhalation system regulations aim to control what substances are present in nicotine products. For example, e-liquids are capped at 20 mg per ml of nicotine strength, and that aims to reduce the addictive potential of vaping products. That said, I am aware of a scandal that broke in 2023 involving the widescale overfilling of vaping products by Elfbar, which required a media investigation to expose. I would be interested to know, first, how the new clause differs from previous legislation in its effect and, secondly, how the Minister intends to enforce it so that misdeeds such as the overfilling of vapes cannot occur again on the scale they have before.

There are also questions about the amount of nicotine in things such as nicotine pouches, and there has been the suggestion of limits to those as well. I ask the Minister, when he is thinking about that in relation to regulations under clause 93, to consider that, although a normal cigarette reportedly contains between 8 mg and 20 mg of nicotine, the individual smoking the cigarette absorbs only a fraction of that—around 1 mg to 2 mg per cigarette. The suggestion that pouches contain 20 mg of nicotine would lead one to believe that the level is extremely high and would add to the addiction and the dependency, but the Minister should consider the limits on how much nicotine is in the nicotine pouch or other nicotine products in accordance with that. We would not wish to push an individual away from a product that is harmful and addictive on to another product that is possibly harmful and more addictive.

I would also be interested to know how, if at all, the Government intend to exercise the powers in clause 93. There are several additives that could be reduced or removed from tobacco products with significant benefit to the smoker. I will give just two examples of chemicals that could be limited under the clause. Ammonia compounds, such as ammonium hydroxide, are used to enhance nicotine delivery to the smoker. Ammonia increases the pH of the smoke, making nicotine more readily absorbed by the lungs. This enhances the addictive properties of cigarettes by increasing the hit of the nicotine. Ammonia and its compounds are toxic, and exposure can cause respiratory problems, as well as irritation to the eyes throat. The use of ammonia compounds also contributes to the overall toxicity of the smoke, as ammonia can form nitrosamines, which are carcinogenic. Reducing or removing the ammonia compounds would not only mitigate these risks, but reduce the addictive potential of cigarettes by reducing the introduction of nicotine without changing their basic function.

Butane is the second substance I want to talk about. Some Members may recall it as a lighter fluid, but it is sometimes used as a chemical accelerant to aid the burn rate of tobacco. Butane helps to maintain an even burn rate throughout the cigarette, ensuring it does not go out prematurely—potentially risky. Butane is toxic, causing particular damage to the lungs and to the nervous system when inhaled. The removal of butane or its replacement with less harmful alternatives would likely not change the cigarette’s function significantly; the burn rate can still be controlled, but the risk of exposure to toxic gases will be reduced. I urge the Minister, as we look to create a smoke-free generation, not to forget those individuals in society who are already addicted to this dreadful habit, and to do what he can to ameliorate the risks to them, either by reducing the harm of the cigarette itself or by encouraging people to quit the habit.

The other question I have for the Minister with regard to clause 93 is: what are the penalties? If someone breaks the rules, if a business is found to be breaching the regulations for how much nicotine is allowed in a product or the concentration, or for how big the tank is or what the components are, what will be the penalties? Companies, largely, will be incurring the penalties, as we have talked about before. The deterrent may need to be quite a large fine in order to make a breach not worth their while.

[Gregory Stafford]

The clause in essence allows the Secretary of State to regulate emissions from tobacco and nicotine products, ensuring that harmful substances released during use are controlled. This is a vital measure to protect smokers and non-smokers from hazardous emissions. My first question is on that last point: can the Minister confirm that the regulations will be designed to protect those who suffer from second-hand smoke? The evidence on vaping is weak, and the evidence on the effects of second-hand inhalation of vapour from vapes is even weaker, but some studies suggest that it is dangerous, especially given that, according to Public Health England, while cigarette smoke contains more than 7,000 chemicals, 70 of which are known to be carcinogens, there are significant problems—as my hon. Friend the shadow Minister said—from the chemicals that are, and potentially could be, in the vapes.

The clause ensures that the regulations can limit the release of those toxic substances and therefore reduce health risks for the users and those exposed to the second-hand smoke. We know that second-hand smoke causes serious health issues, including heart disease and lung cancer. Studies from the World Health Organisation suggest that exposure to second-hand smoke is responsible for 1.2 million deaths globally each year; I suppose, in the world’s population, that does not sound like a vast number, but given the fact that those people have done absolutely nothing wrong and are often, unfortunately, children and young people who suffer smoke from their parents and carers, I think it is worth controlling and regulating. Stronger emission controls would definitely reduce those deaths. As my hon. Friend the shadow Minister said, while vaping has been deemed less harmful than smoking, concerns remain about long-term exposure to certain chemicals in the e-liquids. The clause allows regulators continually to assess and update guidelines on vaping emissions—I welcome that—to reflect the latest scientific advice.

I am certain that the industry will push back on this measure, as they have done on many other points, but I hope that the Government are ready for any possible legal challenges on the regulations when they are brought in. Unlike traditional cigarettes, e-cigarettes or vapes have a vast array of formulations, and therefore creating effective regulatory standards that balance the harm reduction with the safety will be complex. Will the Minister outline how he intends to go about that once the regulations are in place?

--- Later in debate ---

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

[Dr Johnson]

The clause deals with non-compliant images, and subsection (1) grants the Secretary of State the power to make regulations. There is a theme here—the Secretary of State is gaining a lot of powers to make regulations, but it is not clear to what extent he will use them. We could end up with a very effective piece of legislation or not, depending on how effectively these clauses are used.

The clause states:

“(1) The Secretary of State may by regulations prohibit a person from doing the following in the course of business—

(a) publishing an image of the retail packaging of a relevant product”

—that includes tobacco products, herbal smoking products, cigarettes, vapes and nicotine products—

“from which it is possible to tell that the requirements of regulations under section 90 have not been complied with;”.

Essentially, this is a packet that does not follow the rules. The clause continues:

“(b) publishing an image of a relevant product from which it is possible to tell that the requirements of regulations under section 91 have not been complied with;”.

That might be publishing a picture of a vape shaped like SpongeBob SquarePants—assuming that the Minister decides that that is not a suitable form for a vape to take—or

“causing the publication of an image of the kind mentioned in paragraph (a) or (b).”

Subsection (3) states:

“Regulations…are subject to the affirmative resolution procedure.”

The explanatory notes set out that the clause means that an online retailer would not be able to display images of non-compliant products. As we discussed earlier, it is important that we ensure that online retailers are subject to the same regulations as in-person retailers about what they can and cannot sell. Otherwise, the rule will be ineffective, because people will still access these things by simply moving online to buy them, rather than buying them in stores. From my perspective, that is welcome.

I will make a couple of other points. Although the clause authorises the Secretary of State to regulate non-compliant images, it leaves the process of enforcement somewhat open-ended. There may be inconsistencies in how regulations are applied or enforced across different sectors or different regions, especially as the clause refers broadly to various product categories.

More widely, I would be interested to know how the clause might relate to clothing. The clothing brand MCS, formerly known as Marlboro Classics, made extensive use of Marlboro branding, employing the iconic lettering and colouring on its clothes. I understand that MCS has since distanced itself from its roots and rebranded under a new parent company. Many of its older clothes can still be found in vintage clothes shops. Many of them display tobacco product branding, as might old football or Formula One merchandise from the times when those sports received sponsorship from tobacco firms. I would be grateful if the Minister could elaborate on how such products might be affected by the regulations.

Finally, does the Minister intend the regulations to confer an exemption on law enforcement officers who may wish to produce such images to demonstrate and educate retailers about what sort of images they may or may not be allowed to publish?

[Sarah Bool]

Thinking about the more modern age, I want to explore how the clause would apply to social media and television.

The clause states:

“The Secretary of State may by regulations prohibit a person from…publishing an image of the retail packaging”

and from

“publishing an image of a relevant product”.

There is not really a definition of image. My first question is this: does the clause apply to moving images, such as those on television?

I almost cannot believe that I am saying this in the House of Commons, but the “Gavin and Stacey” Christmas special was very popular and contained a scene where a main character, Nessa, was smoking and vaping simultaneously. I wondered about the wider implication for the arts. How will it work in practice when we are trying to prohibit things? How will the BBC deal with it—perhaps it will come under licensing—and how will other media outlets deal with it?

I have a further point about younger children and young adults, given that we are in the social media age. The clause will

“prohibit a person from doing”

certain things

“in the course of business”.

On Instagram, there are influencers. Obviously, their work is monetised; they will be paid for promoting products, or just for general clicks and likes. I wonder how the provisions will work in practice for social media, if they apply to videos as well. A very popular trend is videos in which people unwrap products with the sound up, for the ASMR—autonomous sensory meridian response—qualities. Basically, the sounds of unwrapping can be very relaxing for followers to listen to. Such videos are incredibly popular, and there are thousands of them. I wonder how the measures will impact them. If influencers are making videos for that purpose, will they be caught by the clause? If so, how will we prohibit such activity, especially on social media?

[Sarah Bool]

I was going to ask that as well, because around the concept of publishing there is a big debate about social media—is X a publishing platform or a form of conversation? There is no definition that I can see of what publish means, nor a specific definition of what image means. I am trying to work it through and find out whether there are loopholes, and how they will play out in the modern age. I want to make sure the provisions are at their most effective. I can understand that if an influencer posts a picture, they have to make sure it complies with the rules, but how does that apply in the wider context? Perhaps I am over-examining, but I can imagine where this could go, and some clarity around from the Minister that would be interesting.

[Dr Caroline Johnson]

Can I ask a question?

[The Chair]

Perhaps we can have the Minister respond first.

--- Later in debate ---

[Andrew Gwynne]

Again, that is the beauty of the permissive nature of this Bill. Where loopholes are being exploited, Ministers will be able to come back to Parliament with a simple piece of secondary legislation, through a Delegated Legislation Committee. The shadow Minister said that secondary legislation does not quite get the scrutiny of a Bill, but it does get up to 90 minutes —I am sure she would find it easy enough to fill that. There is therefore scrutiny of secondary legislation.

We are very aware of this issue, which is why I have signed off the anti-youth vaping campaign on TikTok, which will hopefully be going out fairly soon.

[Dr Johnson]

I welcome the steps that the Minister is taking on social media platforms to discourage young people from vaping; that is a very welcome intervention. Given that he has appeared in LADbible articles, I am curious to know whether he will appear in the TikTok videos. I do not have a TikTok account, but it might almost be worth joining to watch them—I think that would be great.

How does clause 94 relate to the advertising clauses, which we have not discussed yet but will discuss later? Presumably, if an influencer is receiving revenue, they are effectively advertising a product.

[Andrew Gwynne]

I am not sure whether my social media clips from this Committee or any other parliamentary proceedings are quite made for TikTok, but who knows?

--- Later in debate ---

[Andrew Gwynne]

The clause allows the Secretary of State to make regulations to establish a register for tobacco, vaping and nicotine products for their permitted supply in the UK. That will improve the existing regime, which has separate notification processes for tobacco products and nicotine vapes. Non-nicotine vapes and other nicotine products are not currently required to be notified. The clause will give the Government the power to establish a registration scheme covering all these products.

Currently, before they can sell nicotine vapes and tobacco products on the UK market, producers must notify their products to the relevant authority. For nicotine vapes, that is the Medicines and Healthcare products Regulatory Agency, or MHRA, and for tobacco products it is the Department of Health and Social Care. That is meant to help to ensure that products comply with our regulations and that retailers are confident that they are selling notified and regulated products. However, there are weaknesses with those systems, and both fail to support enforcement agencies adequately. The clause allows us to establish a more robust scheme for the registration of products. The details of the scheme will be set out in regulations and subject to consultation.

However, in future, if a trading standards officer found a product to be different from its registration details, that product could be eligible for removal from the register until the information is updated. That will greatly improve the confidence of enforcement agencies in addressing issues with non-compliance. Unless they are well regulated, these products can be harmful, particularly for young people. Establishing a new registration system will play an important part in compliance to make sure that products meet the regulatory requirements and are safe for consumers, and it will improve retailer confidence in the products they are selling. I therefore commend the clause to the Committee.

[Dr Johnson]

Clause 95 relates to the registration and information requirements of the relevant products. The Tobacco and Related Products Regulations 2016 require producers to notify the Government when they place or intend to place nicotine-containing vapes in refill containers and tobacco products in the UK market. Regulation 31 deals with refill containers and regulation 22 deals with tobacco products. Producers must make their submissions to DHSC for products to be sold in England, whereas in Scotland, the Medicine and Healthcare products Regulatory Agency is responsible for publishing these notifications.

Is the MHRA the right organisation for this? We heard in evidence that when some consumers see that a product has been regulated by the Medicine and Healthcare products Regulatory Agency, they believe the product to have been medically tested for safety, which is not the case. They are not tested to the same standard as the other products that the MHRA tests, such as medicines to be prescribed by the doctor or chemist. It is misleading; I wonder whether the Minister also thinks it is misleading. In her evidence, Dr Laura Squire said that it concerned her. For Northern Ireland, the EU common entry gate for producers can be used to place products on the Northern Ireland market. The notification does not currently apply to nicotine-containing vapes and refill containers, so this clause is an improvement.

Clause 95(1) allows the Secretary of State to make regulations to establish a register for products such as tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. Subsection (2) provides that these regulations

“may impose prohibitions or limitations on the supply of an unregistered product in the course of business.”

Subsection (3) outlines the matters that the regulations may address, including who will maintain the register, who will be eligible to be registered, and the need for producers to provide information to the registrar. Regulations may also cover the content of the register, the expiry, renewal, cancellation or suspension of a product’s registration, and the publication of the register. Furthermore, the regulations may set fees for registration or continued registration, which could be used to cover the cost of administering the provisions.

We heard in evidence that although products are registered, there is no ongoing monitoring of those registered products. We have seen examples where even supermarkets have been selling products that did not meet the requirements of notification. What will the Minister do to ensure that the regulations he produces can be adequately adhered to and enforced?

Subsection (4) specifies that regulations made under the clause may require producers to provide various types of information, such as reasons for including ingredients in a product, images of the product or its packaging, information about the risks, details about substances released into the body, information about the producer’s operations, and details about any nominated responsible person. That all sounds sensible, but we are asking the industry to mark its own homework. I wonder if the Minister has any comments on how reliable industry-provided information might be on some of these, particularly in relation to risk, because the history of the industry is not strong in that area.

Subsection (5) clarifies that the regulations may allow the retention of payment of register fees into the Consolidated Fund, which we discussed last week. Subsection (6) reiterates that the regulations made under the clause will be subject to the affirmative resolution procedure, which we have also talked about.

What is the rationale for the intervention in this clause? As I understand it, to support a compliant market, it is important that we have products that are registered and can be shown to meet the regulations. This clause will help to ensure that legitimate products are available to sale and will let retailers know what the products are.

[Gregory Stafford]

It is not currently clear to me what this clause means by a “product”. Does the shadow Minister feel that it is a specific product, potentially with a brand name, or a product that fits within a set of standards or regulations? For example, is this regulating precisely “Bob Smith’s vape”, and somebody else’s vape? Or do the regulations provide that a vape with a certain length, with a certain number of milligrams of nicotine in it, with a certain dispensing unit, will be compliant and therefore anybody who produces a vape that fits within those specifications will be compliant? Or is it that every single producer of every single vape and product will have to register with the relevant authorities?

[Dr Johnson]

I thank my hon. Friend for his question. I guess that some of that will come under the regulations that the Minister would produce under this clause. The products are defined as tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products, so I guess anything that falls into those categories would need to be registered. However, as we have seen already, simply registering a product does not necessarily say that it is safe, or even necessarily guarantee that it contains what it says it contains. It is potentially helpful to have the ingredients, to know what people have consumed, but having something registered with the MHRA may suggest to some consumers that there is a safety check that has not been done here.

[Tristan Osborne]

In relation to the MHRA, we know from our brief look at the data that one in three products contains impurities. That is data that is currently provided. We absolutely accept that we need a robust regulatory environment. Is the shadow Minister suggesting that the regulator should, or should not, be the MHRA, in this case?

[Dr Johnson]

I am suggesting that there is a difference between regulating a product as a medicine, which requires stringent steps, and a statement of what the product does, the effect it is going to have on the body, the claims made about it, and why it is safe, or safer than having the problem that it is treating. Some drugs make people quite unwell but people are willing to trade off being unwell for being cured. For example, cancer drugs make people very poorly at times, but it is considered better to have chemotherapy than cancer, because cancer leads to fatality. That process lets a consumer know that the product has been robustly tested and that the quality is there. On an ongoing basis, someone is checking that the paracetamol bought from a supermarket contains the ingredients that it says it contains on the packet. This notification process does not do that. It says to a company, “Come along and tell us what’s in it. We’ll believe you. Thank you very much. We’re not going to check and we’ll hope it’s all right.” That is a weak process.

It is not surprising that there is a weaker process for a consumer product than for a medical product. However, having it also done by the MHRA could lead consumers to believe that the vapes have gone through the first process and not the second process. I think that is misleading—some of the Minister’s hon. Friends are nodding vigorously—and was something brought up by the MHRA itself in response to, I think, my question. The MHRA answered that this could mislead consumers to think that it is medical regulation of vapes when it is not. There is only a point in having a register if it will be used to achieve something. Having a list of stuff does not make a great deal of difference if no one is going to check that the list is accurate, and I cannot see that there is any great step to say that the list is accurate. What comes with a register is important, as well as the register itself.

The rationale, as I understand it, of the register is to support the compliant market by having products registered and shown to be meeting the regulations. Again, I understand that this registers that a company has said that it complies with the regulations but I cannot see where the provisions say that there is anyone checking. That may be something that the Minister will add, maybe in relation to later clauses.

The aim of the register is to help to ensure legitimate products are available for sale, and to let retailers know what they are. When a retailer—a chap running a corner shop—wants to buy some of these products to sell, and he has a licence, and he has checked people’s ages under the provisions of the earlier clauses, and he wants to sell the product, he wants reassurance that the product is genuine and not illicit. Checking this register for that product would be a step that a reasonable retailer can take to check the product is legit, or at least said to be legit.

Both industry and enforcement agencies have asked the Government to update the current notification systems. Although that was not part of the consultation process, I understand—and the Minister can perhaps clarify this—that subsequent consultation will be required to better inform the new registration system and its implementation.

The Government would like to ensure that non-nicotine vapes and other nicotine products being sold in the UK market are subject to the current notification requirements of nicotine vapes. That is in line with the consultation undertaken by the previous Government in 2023, when the majority of responses were in favour of regulating all non-nicotine vapes and other nicotine products under a similar regulatory framework as nicotine vapes. Again, I ask the Minister to consider whether the MHRA is the best organisation to be providing that service if it is not doing what most of the public may consider it is doing?

At the moment, if enforcement agencies find that the product is notified as not being compliant with regulations, they are unable to update the notification accordingly. The new powers will ensure that the register of products can be updated, and therefore that items can be removed if they are not meeting requirements. To ensure that we can effectively monitor the products and support enforcement, it is necessary for the Government to have the power to introduce the registration regime. I am not against the principle of that, but I think it needs to be well thought through. Perhaps it will be when it comes to the regulations in the statutory instrument—when we no doubt meet again. Adding regulations in general is not necessarily a welcome thing, but in that case it may be useful.

There will be some costs to industry, due to measures including product registration requirements, particularly on non-nicotine vapes and other nicotine products. That may put off producers with lower standards and may improve the general safety standard of the industry, but it is also possible that those with lower standards will not bother, so the Minister needs to explain what the plan is for that—and also the plans for factories.

The registration requirements will also mean that consumers can access more information on non-nicotine vapes and other nicotine products. I ask the Minister: will consumers have access to the information on what all the ingredients are? Will there be thought given to people with allergies who wish to use those products? There may be a cost to companies that have to request information from their suppliers and gather existing data on non-nicotine vapes and other nicotine products. Companies will also have to spend resources on completing the required paperwork.

Based on the impact assessment for the Tobacco and Related Products Regulations, I understand that the Government expect those tasks to take between 10 and 15 hours per notification, plus or minus any translations or translation costs that may be required. Given that any companies notifying the UK will be selling or operating in the UK, translation costs should be negligible. Therefore, it will be 10 to 15 hours work, plus currently a small fee of £150 to notify of a nicotine-containing vape product. There is also a fee for tobacco and herbal products set at £200, a fee for any modifications at £100, and a further annual reporting fee of £100.

A new fee will be imposed to register products, which will likely be in line with the current fees for tobacco, herbal and nicotine-vape products. Non-nicotine vape products and other nicotine products that were not subject to notification of fees will be charged a fee to register, with the amount to be determined through further consultation. That is another case where essentially what is happening is that the Government are taking a lot of power to do things, but not being terribly explicit about what they intend to do with them. While the Minister said that he is going to go like the clappers, we still have no clear indication of how fast those clappers are clapping away.

For potential new information requirements, there may be additional costs with acquiring that information. Some manufacturers may already collect new information, in which case there will be no additional costs other than staff time spent collating and submitting. Those costs may be more burdensome for smaller companies. The changes will be achieved through secondary legislation, which will be subject to consultation to determine what information should be notified, how the registration will operate, the process for any non-publication of notification and the level of fees associated with costs administering the system.

The impact assessment says that the Bill will also give the industry enough time for businesses to make any changes before the future regulations come into force. Again, the Government are saying that they are going to give enough time, and they are going to go like the clappers. But how fast are the clappers going and how much time is enough for industry? I still do not think we have any idea.

I have a couple of questions. In subsection (3)(a), where the regulations make a provision about who is to keep the register, will the Government clarify what that Government body or third-party private entity will be? Will it be the MHRA, or will it be something else?

Subsection (3)(b) gives the Secretary of State power to regulate eligibility for registration. There is room for debate about what constitutes eligibility and whether small businesses or new entrants will face excessive regulatory hurdles. The power may also raise concerns about what happens if a product or business fails to meet the requirements. Will they be shut out of the market? Will they be forced to make changes? How will that work?

Paragraphs (c) and (d) of subsection (4) require producers to provide information about potential risks to human health and substances released by products, but the wording is relatively broad and could raise questions about how tobacco and nicotine product manufacturers will assess and report risks. What level of scientific evidence will be required? How will they balance transparency with proprietary information or concerns about trade secrets? What will happen if the product risk assessment is disputed, and how will disputes be resolved?

We may have a situation where the vape manufacturer says that their product and the flavourings are safe but the evidence from medical professionals suggests otherwise. Will they provide the information themselves or will they fund other people to do it? Will that be done under a general pool, or will it be specific to that product at that time? How much influence will the industry have over the results? If we ask a specific question, we will get closer to the answer we want.

In the case of vaping products specifically, the health risks are not yet fully known. It is fair to say that there is some debate on the matter, even among respected authorities. The American Lung Association claims that vaping is linked to a condition called popcorn lung, and the Harvard Medical School lists popcorn lung under the risks of vaping. However, the NHS and Cancer Research assert that vaping does not cause popcorn lung, so there is a dispute. Clearly, more research is needed, but in the meantime how will the regulations in the clause address an issue like this?

Subsection (5) introduces the idea of fees for registration, including provisions that allow the fees collected to reflect the cost of regulation. It raises issues about how the fees may affect small and independent producers in a market that is taxed. Do we have any indication about what the fees may be? Could the cost of registration become prohibitive for small companies and push them out of the market? Will there be mechanisms to ensure that the fees are not too burdensome for newer and small businesses, or is the intention to limit the number of products on the market by making the fees higher so that we get a smaller number of products and are therefore more able to regulate and assess what is in each of them?

[Andrew Gwynne]

I welcome this debate because it raises some important questions. First, we have had a long discussion about the MHRA, and under the existing legislation it is the appropriate body. I want to make one thing very clear by emphasising the point that the shadow Minister rightly made and that the MHRA also made in giving evidence to us on the first day of the Committee: no medically approved vape is available. Vapes being registered through the MHRA does not make them medically approved for health purposes. It is really important to keep emphasising that no vape currently available in shops in any part of the United Kingdom is medically approved for health purposes by the MHRA.

I take very seriously the point the shadow Minister makes about whether the MHRA is the appropriate body going forward for this aspect of the registration scheme. We are considering how a more rigorous registration scheme can best be delivered given the nature of these products, which I again emphasise are not healthcare products. We are scoping a potential new home for the registration scheme. Officials at DHSC and the Office for Product Safety and Standards have already met to discuss learning and best practice from other product registration schemes. I hope that gives some hope to Members. While the MHRA is currently the appropriate body, at some stage we might well decide that it is not necessarily the best place for this new registration scheme to sit.

[Dr Johnson]

I thank the Minister for that. I am grateful that he is looking for a new home for the regulation that more accurately reflects what is being done.

--- Later in debate ---

[Andrew Gwynne]

Yes, that is absolutely the case.

On the shadow Minister’s question about the ingredients in the vape—or any other product, for that matter—if those turn out to be different from those in the register, I reiterate that the product could be eligible for complete removal from the register until the information is updated. That is precisely the measure that enforcement agencies have asked for to give them the greater clout that they need when it comes to non-compliance: once those products are removed from the register, they would not be permitted for sale—end of.

[Dr Johnson]

Let us look back to the issues of the Elfbar items that had, as I understand it, a higher number of milligrams per millilitre—certainly a higher nicotine content—than they were supposed to. If there is no penalty other than being removed from the register until the information is updated, could not someone less reputable say, “Well, I’ll put on what I want to put on; if I get caught, I will at that point say what is really in it and go straight back on the market”? Is a period of not being able to sell the product envisaged? Is a stiff fine envisaged? What is the penalty envisaged or will the register simply have to be updated?

[Andrew Gwynne]

As the clause stands, the product would be removed from the register and could not be sold. Alongside that, we aim to establish a testing regime to check regularly that products on the shelves are what they say they are. That will help to support overall enforcement and ensure that all registered products are safe for consumers. As with other matters, all will be set out in regulations, subject to consultation. Ultimately, all this is down to the regulation-making powers. All of part 5 basically sets out the framework for what can be done in future, subject to regulations.

On the point about ingredients—the shadow Minister made this point twice, in particular about people who may be allergic to certain aspects of the ingredients in a product—under the TRPR, products already need to list the ingredients. We have sought to introduce powers, which we covered during our debates on the earlier clauses, whereby Ministers would be able to request even more information on packets or products, should that be deemed necessary. We have the measures already in place through the TRPR on publishing the ingredients. Were Ministers in future to decide that a particular compound was highly allergic to certain people so there needed to be further warnings on packets, they would have the power to make the necessary alteration through the usual processes of consultation and secondary legislation.

[Dr Johnson]

Will the Minister clarify whether the regulations require someone to print the ingredients in full on the vape packet, on the vape itself, on a website or on all three?

[Andrew Gwynne]

I will get back to the shadow Minister on that because I suspect that the House is about to divide, and I need a bit of inspiration from the box on the exact answer. I would not want to mislead the Committee inadvertently.

Clause 103 covers offences to provide false or misleading information. It will allow for the punishment of imprisonment or a fine, or both. I hope that covers the concern.

Question put and agreed to.

Clause 95 accordingly ordered to stand part of the Bill.

--- Later in debate ---

[The Chair]

I remind colleagues that thus far we have done eight clauses and amendments. Before the end of today, I understand, in effect we have another 50 clauses, schedules and amendments to go. Everyone should be on the same page with regards to that.

[Dr Johnson]

On a point of order, Mr Dowd. Did you say 50 or 15? The reason I ask is that about 50 clauses remain to be discussed and about three days are still allocated to that purpose.

[The Chair]

I make no comment on the scheduling; I am just bringing people’s attention to the fact that that is the proposal for today, so that people are aware. I am not making any comment on it other than for people to be aware that that is what I understand the intention to be.

[Dr Johnson]

Further to that point of order, Mr Dowd. To make the Committee aware, that proposal has not been shared.

--- Later in debate ---

[Taiwo Owatemi]

Further to that point of order, Mr Dowd. I made it very clear that I was not going to accept that proposal, and I explained last week why not. Again, I outlined the Government proposal. The counteroffer did not meet halfway; in essence, it stuck to the Opposition proposals. At the end of the day, I decided that we had a clear target of what we are trying to achieve, and we wanted to give Members reasonable time to discuss the Bill.

[Dr Johnson]

Further to that point of order, Mr Dowd. I am confused about what the Opposition wish to achieve—[Interruption.] Sorry, the Government. It was the Government’s programme motion, which the Government produced and in which the Government suggested that we had a certain number of days and sittings. The Government had the numbers to decide how many sittings were allocated. Having allocated all those sittings, why have the Government suddenly decided that they want to complete the Bill in Committee three days early?

[Taiwo Owatemi]

Further to that point of order, Mr Dowd. We want the Committee to be able to discuss the new clauses. We are not finishing today; we are just trying to get to the new clauses, which will still need to be debated.

[Dr Johnson]

Further to that point of order, Mr Dowd. Will the Chair clarify how many new clauses there are, and how many of the new clauses have already been debated?

[The Chair]

May I get this absolutely clear? My intention was simply to tell Members what I understood the situation to be. It is not for me to make any judgments at all. It was just to give an indication, in effect, that we are moving on to amendment 6 and that I understand that the intention for today is to get to schedule 21. That is all. Frankly, I do not know how many new clauses we will be dealing with in due course. Tonight, I am focused on, for Members’ benefit, everyone’s understanding that that is the intention. I do that purely for Members to get the gist of what is going on. I make no judgment on it at all. It is not a matter for the Chair to make any such judgment. That is how I understand the position.

--- Later in debate ---

[Dr Johnson]

On a point of order, Mr Dowd. To clarify, there are 10 new clauses and we have already debated: new clause 1, when we were debating clause 91 earlier today; new clause 3, which we debated with clause 1; and new clause 10, which we debated with clause 10. That means that the Government have made a decision —I am sure that the Minister will correct me if I am wrong—that they will need to do seven new clauses over a period of three days, and all the remaining 50 clauses this evening. I am not sure that that is a reasonable expectation of civil service and House staff.

[Taiwo Owatemi]

Further to that point of order, Mr Dowd—

--- Later in debate ---

[Jim Dickson]

It is a pleasure to serve under your chairship, Mr Dowd.

Amendments 6 to 9 stand in my name and I will endeavour to speak to them quickly in the light of the discussion we have just had. The amendments would require the Secretary of State to make regulations that, in turn, require the producers of tobacco products and other related products to provide sales data by geographical area, and require the publication of such data.

Tobacco companies collect rich data on the sales of their products, which is used for commercial purposes. Many times in Committee, we have heard how smoking is now spread unequally across our communities, with people in deprived areas being far more likely to smoke. Data is collected by companies on their sales and distribution, and could be put to better use to inform public health responses. In my case, as cabinet member for health in a London borough, I know my director of public health would have found that data incredibly useful to shape local policy.

Such data could also help researchers get better insights into tactics used by the industry to subvert price policies, thereby informing tax policy in the area and consultations on a “polluter pays” levy, which the Committee will be considering with new clause 2. The data would enable local authorities to get better insights into what is happening with sales in their area and to identify possible upticks in illicit tobacco use. There may be National Trading Standards’ uses for such data to support enforcement activity and improve the intelligence that local authorities have available to assess local problems with illicit sales.

We know that manufacturers change their sales tactics regularly. In a written submission to the Committee, Action on Smoking and Health provided an example of how access to the data could aid policy. It states in its submission that it has recently identified that cigarillos—small cigars—

“are increasing in use among young people. With timely access to industry sales data public health agencies and researchers could have identified this trend far more quickly”

and acted to do something about it. It continues:

“These products have fewer restrictions on them than other tobacco products, something that will be addressed”

by the Bill,

“but lack of knowledge has inhibited swift public health response.”

A lot of this data is shrouded in secrecy, and I hope that the Committee agrees that requiring the industry to make it public could support public health endeavours. I am sure that Philip Morris International, which submitted evidence to us, would agree that the company is committed to delivering a smoke-free future. This is one way the industry could help, but the Government should require it to do so.

[Dr Johnson]

May I clarify, Mr Dowd, that you wish amendments 6 to 9 and clauses 96 to 98 stand part to be debated together?

[The Chair]

Yes.

[Dr Johnson]

Thank you. I also point out that last Thursday the Opposition Whip put forward sensible proposals, and we finished to time on the clauses that were required to be assessed, so we can act very reasonably when we are asked to.

Amendments 6 to 9, tabled by the hon. Member for Dartford, would require the Secretary of State to make regulations requiring producers of tobacco products and other products covered by the Bill to provide sales data by geographical area, and would require the publication of such data. I am not clear how widely the hon. Gentleman wants the data to be published. Does he want it to be published and available on the internet, or does he want it to be provided just to the Government? Perhaps he could clarify his intentions.

I am not sure how helpful the hon. Gentleman thinks this measure will be, because people do not necessarily consume where they purchase. The figures for a major service station, for example—perhaps where the M1 meets the M25—could really skew the data that he intends to be collected. Data from around King’s Cross may reflect people having a cigarette before they leave on a long journey, and the same may be true at airports. Does he have a view on the effect of that, or how it would be mitigated?

[Jim Dickson]

Of course, occasionally there would be outlets for which the data is less useful, but if we looked at outlets in deprived areas—shops on estates, for example—and saw an uptick in a particular type of product being bought in the area, I think we could make a reasonable assumption that those products were being consumed pretty close to the place of purchase, and that would tell us something about trends in product use. That might tell us something very useful for public health purposes, if we were trying to promote smoking cessation or a decline in the use of particular products in the area.

[Dr Johnson]

I understand and support what the hon. Gentleman is trying to achieve. He seeks to ensure that individuals who smoke can be encouraged to quit, and to look at where products are sold more frequently as a way of trying to do that, but I wonder whether this data is, in effect, already collected by survey, and whether it would be a burden on businesses to require them to provide sales data. Does he envisage that the tobacco and vape companies themselves would provide data on which retailers they have supplied? Depending on how much stock a retailer is holding, that will not necessarily tell him how much has been sold. Or does he envisage that every corner shop would submit data to the Government? How much would it cost to process that data, and would it really tell us things we do not already know?

[Jim Dickson]

I can deal with that very quickly. We would be looking for the companies to publish the data they collect, broken down geographically, and to give us an idea of the volume of their sales, including of particular products. That is all information they hold already; we are merely suggesting that the Government should require them to publish it in that form, which would be particularly useful to public health professionals and, we think, for trading standards enforcement.

[Dr Johnson]

I support the hon. Gentleman’s aims, but can he clarify whether he intends the data to be published widely or just shared with the Government for the purposes of health? Will it be available to competitors, for example?

[Jim Dickson]

The data will be available publicly to anyone who wishes to look at the information. The companies may feel that that is a competition issue and try to make that case, but publishing the information for everyone to use, particularly public health authorities and trading standards, will be helpful in contributing to our objective of a smoke-free generation by supporting cessation efforts and enabling public health to shape policy around trends in the tobacco industry.

[Dr Johnson]

My support for the hon. Gentleman diminished slightly when he said that the data will be available for everyone to see. There is a point to saying that if the data is available, sharing it with Government, public health officials and those who treat it confidentially to try to improve the public’s health, and to trading standards to assist enforcement, may be useful, but providing data to competitors is the wrong thing to do.

First, that is unfair in a free market. Secondly, might not this data be used by companies in this industry, which we know is adaptable and agile, to increase sales in areas where they presumed a competitor was selling but have found out they are not? I am not sure that the data is required to be published for the public interest. The Minister could tell us whether there are any other instances where we expect private companies to tell us who they are selling to and where and to publish quantities of sale online for other companies to see. I cannot think of an example, but the Committee may be able to. Perhaps the hon. Member for North Somerset who is a pharmacist may be able to help, because he has more experience—

[Sadik Al-Hassan]

indicated dissent.

[Dr Johnson]

The hon. Gentleman is shaking his head.

Clause 96(1) grants the Secretary of State the authority to make regulations requiring producers or importers of products including tobacco products, tobacco related devices, herbal smoking products, cigarette papers, vaping products and nicotine products to provide information about these products to specified persons. The regulations may also govern the publication of this information. Subsection (2) outlines specific types of information that may be required, including details about the ingredients, the risks posed by the product, the emissions or substances released by the product, the producer’s operations and any individual nominated by the producer to be responsible for the product. Subsection (2) also specifies that the regulations may also require sales data or market research relevant to the product. If subsection (3) already requires this, I do not think that providing that data to the general public is necessarily something there is precedent for, but I may be corrected on that. Subsection (4) affirms that the regulations will be subject to the affirmative procedure, meaning that they will go to a vote of a Committee of the House.

The provisions in subsection (2)(b) on sales data go back to the point by the hon. Member for Dartford and raise questions about how the data will be used. Could the information be used to unfairly favour certain companies or enable them to gain an advantage over competitors? There are privacy concerns to consider. How will sensitive business information such as sales strategies, pricing models or consumer preferences be protected? While the Government want to limit the number of people who smoke and deter smokers from smoking, by not banning cigarettes outright they have given their indication that cigarettes are a lawful product to be bought by those who smoke already and who are over the age of 18 and anyone who chooses to smoke who was born on or before 1 January 2009. Having allowed businesses lawfully to exist, they should be allowed lawfully to get on with their job.

Subsection (3) suggests that the regulations will detail when and how information must be provided. That raises questions about the practicalities of the process. How frequently will the information need to be submitted? Will it be annually—in which case, how useful will it be? Or will it be quarterly, or more often—in which case, how burdensome will it be? Will there be specific deadlines? What penalties might businesses face if they fail to comply? Moreover, the process by which businesses submit their data and the verification of the information provided will need to be transparent to ensure that businesses are adhering to the rules consistently. Will there be regular audits or checks to ensure that the data is accurate and truthful?

The information required under this clause could provide valuable data for public health officials, researchers and policymakers to monitor trends in product composition, usage pattern and health impacts. However, a critical question is how effectively this information will be used to achieve tangible health outcomes. In other words, is it collecting information for the sake of collecting information, or is it collecting information that will actually be beneficial and useful? Will it help regulators to identify new risks or trends in the market? Will it support more targeted interventions to reduce smoking and vaping-related harm?

It is worth considering how information related to new products such as novel vaping devices or alternative nicotine delivery systems will be evaluated and whether the data will be used to inform better regulations in future. I suppose there is an argument that if particular flavours, for example, are prevalent in a particular area and there is an immediate harm in that area that correlates with a particular flavouring, that is a sign that there is a problem with that flavouring. But in practice, since we have been given medical evidence that suggests that any changes are usually over a period of time and fashions change over time, it will be very difficult to weed that out of a huge amount of information. It is therefore difficult to understand exactly how the information will be used. I am sure the Minister will be able to provide further information in that regard.

Clause 97 looks at studies that might be required. Subsection (1) authorises the Secretary of State to make regulations that require a producer of a relevant product to conduct a study on a product or an ingredient within it. The producer may be required to submit a report on the study’s findings to a specific person. That may be helpful, but if a company is asked to provide information on a product that it sells and the information is detrimental to the prospect of further sales, how impartial can that be considered, how much will the consumer trust that information and how much point is there in doing it?

Will the Minister consider whether the study should be done independently rather than by the producer? If so, how does he envisage that working? If the producer of the product commissions the report, the way in which the question is phrased, the way in which the study is designed and other things can influence the result that is achieved. That may lead to a bias in the study so that the Government will not get the information they really want.

Subsection (2) defines a relevant product as a tobacco product, a tobacco-related device, a herbal smoking product, cigarette papers, a vaping product or a nicotine product. Subsection (3) outlines the specific provisions that may be included in the regulations. They include determining when and how the study should be conducted and the report submitted, specifying the questions that the study must address and defining the content and structure of the report. Subsection (4) specifies that the regulations made under this clause will be subject to the affirmative resolution procedure, meaning that they must be approved by Parliament.

The impact of the studies is assessed in paragraphs 1418 to 1426 of the Government’s impact assessment. The background to that is that the TRPR currently requires nicotine vape manufacturers to submit toxicological data regarding the product’s ingredients, including its ingredients in printed form, when the chemical composition may change, and emissions, referring to the effects on the health of customers when inhaled and considering things such as the addictive nature of the product.

Currently, producers of non-nicotine containing vapes and other nicotine products such as nicotine pouches are not required to test their products or the ingredients contained within. Those products fall under the General Product Safety Regulations 2005, under which the only obligation is that a producer must supply a generally safe product. Therefore, manufacturers of vaping products should carry out tests on their products to determine how the device works, how it delivers nicotine and how the ingredients react with each other to produce certain emissions—that is important to protect consumers.

In some instances, we will see the use of new chemicals and ingredients that are not well researched or well tested. If a manufacturer wishes to put such an ingredient in its products, it could be required to perform studies on its safety. As I said before, it may be that the industry does that itself initially, but there must be a provision to allow the Government to commission independent research to avoid biases in that information.

Manufactured cigarettes are the most thoroughly researched tobacco product and also the most uniform. We know much less about other products, such as novel tobacco products, non-nicotine products and smokeless tobacco. They are a hugely diverse range of products and much less well studied. We currently depend entirely on manufacturers and lack the capacity to verify industry claims. Smokeless products are of particular concern; they are often produced by small and medium-sized enterprises in low and middle-income states and then imported.

There will be an impact to industry from the cost of carrying out a study of their products and ingredients and submit the study to the relevant body. If the test for menthol was added to the standard routine testing for tar, nicotine and carbon monoxide—TNCO—currently conducted on all cigarette brands, it would be expected to impose only a small additional cost. However, any additional tests that regulations require manufacturers to conduct would also have additional costs. If manufacturers have that product safety information for all the chemicals in their products, including for vapes, which have lots of different flavours—the long-term effects of vaping those chemicals are in many cases unknown, but suspected in some cases to be harmful—how will the Minister decide which chemicals to test? Will he require independent testing of all chemicals that are used in the vapes? That would take time: it is very difficult to work out what something will do over 20 years without waiting 20 years to find out.

I remember that when mobile phones were new there was a rumour that they might cause types of brain cancer. Around 20 years ago, I entered the cohort study of mobile phone use and health, or COSMOS, in which data was—and may still be—collected on my telephone usage and provided to university researchers in London. They measure my usage and periodically ask where I keep my telephone—whether in my front or back pocket, in a bag, or wherever—and whether I hold my phone to my ear when I am talking or hold it in front of me, on speaker. They also look at my medical records to see whether that usage has had any effect on my brain, and how many people who are in the study have subsequently got cancer. Does the Minister envisage encouraging the setting up of such long-term studies to check on the outcomes from vaping, for example?

There would also be a cost to developing the body that is required to review the studies that the producers of these products submit. For context, the extra cost of testing 12 tobacco products for menthol was around £50,000 per year. The cost to the relevant body of additional tests required by the regulations may be in a similar region. Those regulations would be subject to consultation, but has the Minister considered that the fewer flavours there are, the fewer chemicals that he needs to pay to have tested, or that he needs to encourage business to pay to have tested? The range of flavours means that there are more chemicals out there potentially needing investigation.

Clause 97 does not refer to conflicts of interest and does not require independent, objective experts—perhaps the Minister intends to include those in regulation. In instances in the past when tobacco companies conducted studies through their own research groups, they provided—perhaps unsurprisingly—remarkably optimistic conclusions about the hazards of smoking. I hope the Minister is not expecting such companies to mark their own homework again. The regulations should specify the qualifications of those conducting the studies and the methodologies that they should follow to help ensure that studies are scientifically valid and unbiased.

Subsection (3)(c) allows regulations to define the content and structure of reports that producers must submit. Although that provides flexibility to the regulators, it could also lead to confusion if the requirements for report structure and content were not clearly defined. Will there be a standardised format for reports, and how detailed will they need to be? Should the reports be publicly accessible? Will they remain confidential to the producers and regulatory bodies, or will they be more widely published, as the hon. Member for Dartford suggested other data should be?

These questions are important and the Minister’s intentions are important, as unclear guidance could result in inconsistent reporting across producers or even incomplete or misleading reports. The primary goal of requiring studies and reports is to provide regulators with information that could be used to improve public health outcomes, such as understanding the health risks associated with smoking, vaping or nicotine products. It is essential to question how this information will be used once submitted. Will it be analysed promptly and used to update product regulations to inform public health campaigns? If studies highlight emerging risks or issues, how quickly will regulators be able to act on the findings? The impact of those studies will largely depend on how efficiently the regulatory system uses that data to protect public health and respond to new threats. Are we collecting data for the sake of collecting data, so that the information is there, or are the resources going to be provided to look at the data, analyse it and act upon it? Otherwise, we may end up in a situation where we knew the answer but we did not see the wood for the trees.

Finally, clause 98 talks about the responsible person. Subsection (1) allows the Secretary of State to make regulations that require producers of tobacco products, tobacco related devices, herbal smoking products, cigarette papers, vaping products or nicotine products to nominate an individual who will be responsible for the information that must be provided under the regulations we have discussed under clauses 95 and 97.

Subsection (2) provides that the regulations may include provisions on who is eligible to be nominated as a responsible person. That could include requirements for the nominee to be a resident of the United Kingdom, or to have another connection to the country. Subsection (3) mandates that the regulations must prohibit a producer from nominating an individual without first obtaining consent, which seems to me very clear and straightforward. Subsection (4) clarifies that regulations made under this section are subject to the affirmative resolution procedure, requiring Parliamentary approval before becoming law.

The clause allows the Secretary of State to define who is eligible to be nominated as a responsible person. It is essential to ask whether there are any clear criteria for that eligibility. For instance, must the individual be a senior company representative, public health expert or legal representative? The definition of eligibility could significantly impact the effectiveness and accountability of the regulation. Subsection (2) of the clause mentions that the regulations may require the nominated responsible person to be

“resident in, or to have another connection to, the United Kingdom.”

What exactly constitutes a connection to the UK? One of my aunts moved to the States when she got married and she lived there and had her family there. Although she has sadly passed on, I have cousins in the States. Is that enough of a connection? What counts as a connection? Is it enough for the person to have a business address in the UK, or do they need to be a UK citizen or a UK taxpayer? Do they need to live in the UK for a certain period?

This is particularly important when considering that many of the largest players in the vape industry, such as Elfbar and Lost Mary, are Chinese companies and are headquartered abroad. To my understanding, Elfbar has used its geographical distance from the UK to stay at arm’s length from a range of controversies caused by their products, not least the selling of vapes with illegally high levels of nicotine and the use of TikTok influencers with large followings among children to promote their products, which I am pleased to hear the Minister will be countering with his own adverts.

The clause specifies that the regulations prohibit a producer from nominating an individual without their consent. What process will be put in place to ensure that consent is genuinely obtained and documented? Will there be a formal registration or reporting system for nominees, and how will we ensure that the nominee knows—and that we know that the nominee knows—that they have been nominated? Will the person responsible be held personally liable for product safety or compliance failure if the product manufacturer fails to meet certain standards? Will it be the responsible person facing the fine, penalty or other consequences, the company, or both? That is an important consideration given both the nature of the penalties and also the person’s willingness to be nominated.

The clause covers a broad range of products, including tobacco products, tobacco-related devices, vaping products, herbal smoking products and nicotine products. Will the nominated responsible person be expected to oversee compliance with specific regulations for each product category, or will there be a single standard compliance regulation for all? I think primarily of cases where large companies have major stakes in both the tobacco and vaping industries.

[Gregory Stafford]

We are debating a number of clauses and the amendments to them. I will first touch on amendments 6 to 9 in the name of the hon. Member for Dartford. I completely understand where he is coming from in trying to use data collected by companies producing such products and by retail outlets. It could have a significant health benefit. The hon. Member for Worthing West is a public health consultant and will, therefore, sympathise with the ambitions in the amendments.

Where there is a problem, however, is in the sharing of such data. Clearly, to make that effective from a public health point of view, the information needs to be shared with the Department of Health and Social Care and with relevant public health authorities at a local level, whether that be combined authority mayors—or whatever comes in the Government’s reorganisation— or local authorities. My concern is that the data will be publicly available to everyone, including competitors in that market. That is an extremely dangerous precedent to set.

We would not do something similar with alcohol, although we must agree that alcohol also harms, or with fatty foods or sweets. I am sure the Minister will tell me later, and I completely agree with him, that tobacco and vape products are not in the same scale as fatty foods and alcohol, but I still think that there is an anti-competitive nature to some of the measures in the Bill, especially in the amendments, in particular when it comes to different sizes of companies. My hon. Friend the shadow Minister mentioned the big players in this market. Let us remember that we are not banning vapes—we are just banning them for those under the age of 18, and rightly so—but by using this data, the big competitors in the market could squeeze out smaller retailers and smaller companies that produce vapes.

Perhaps that was the hon. Member for Dartford’s intention, but giving succour to the big beasts in this game is probably not the way we want to go. I am not sure whether he will press his amendments to a vote, but, if the Minister and the Government accept the proposals, in this form or another, we should look at a way of ensuring that we can use this data for public health benefit without the unintended consequences that might come about from sharing it with competitors.

Clauses 96 to 98, as drafted, all include a lot of positives. Clause 96 empowers the Secretary of State to require producers and importers of tobacco and vaping products to provide information about their product sales and potential health risks. Obviously, transparency is critical to ensure consumer protection, and to inform our policy making and effective regulation of the sale and manufacture of such products. A study by the World Health Organisation found that countries with strict tobacco information disclosure laws saw a 20% decrease in tobacco-related illnesses over a decade. That very much sits with my point about using data to drive policy. Mandating the detailed reporting that is mentioned in the clause will ensure that consumers have access to crucial data about product contents and the health implications.

[Dr Johnson]

We have talked a bit this evening about social media companies and the production on social media by influencers of what are in essence adverts, together with the difficulties in imposing any regulations on that. Does that not mean that, if all this data were published as the hon. Member for Dartford suggests—with great intentions—we could end up in a situation in which we are informing the industry exactly where they should target next with their social media posts? We all know that those can be directed to certain geographies.

[Gregory Stafford]

That is a real risk of the amendments tabled by the hon. Member for Dartford. Essentially, we would be mandating the companies to show their competitors and potential new entrants to the market where the potentially fertile—in the sense of wanting to buy the product, to be clear—areas of customers are so that they would know to target them. It seems rather strange that we would want to do that. I am sure that that is not the hon. Member’s intention, but it is a potential conflict of interest.

--- Later in debate ---

There are a few things we need to think about regarding clause 98; perhaps the Minister can respond to them. The clause should specify what qualifications the responsible person should have. I do not mean whether they have a degree, or otherwise, but the qualification within their company. It cannot be the tea boy—it needs to be someone that has at least the relevant oversight. I am being slightly facetious by saying “tea boy”, but companies could allocate somebody who has no internal oversight of compliance even though they are the nominated person.

[Dr Johnson]

My hon. Friend is making a good point. I am sure he would agree that, essentially, there is no point in naming a responsible person for the company if that responsible person is not sufficiently able to pull the levers of power within the company if they find that something is not up to scratch. We need someone who is not in fear of being sacked if he or she raises concerns—somebody who is at a high level within the company.

[Gregory Stafford]

Yes, absolutely. I think the shadow Minister is completely right. There is that point, in terms of potential fear—if that is the right word—for this person if they are not in a senior position. Indeed, some of the less scrupulous companies may seek to intimidate said compliance officer. Also, to be frank, a lack of expertise in this area could lead to ineffective compliance oversight. While that is something undesirable in and of itself, it can also potentially have negative impacts on the consumer.

Finally, could the Minister say a bit about the potential legal-liability issues of this person? Nominating a single individual raises questions about personal legal liability. Will this individual be legally responsible for compliance —or non-compliance—or will that be the chief executive or someone else, or will there be corporate responsibility or liability for breaches of the standards? I really think that provisions should be in place to ensure that the company—the manufacturer, the producer—bears the ultimate responsibility, rather than this named individual.

The clause needs a clear set of qualifications and criteria regarding the experience of said responsible person. We should make sure that the accountability is structured to prevent scapegoating of individuals, as the shadow Minister has mentioned, and some kind of training programme is in place to support those compliance officers in their roles so that they can enact their duties responsibly. We should also ensure that, should something go wrong, it is the company that holds ultimate responsibility and liability in law rather than that individual.

Tobacco and Vapes Bill (Eleventh sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 23rd January 2025 Public Bill Committees

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

Clause 99 relates to testing. The clause allows the Secretary of State powers so they may by regulation require a person specified in the regulations, such as manufacturers, importers or other relevant parties, to carry out tests on the products to ensure they comply with any of the registered requirements. Testing is a sensible thing to be able to do, subject to making provision for far more new tests to be carried out, because it is important that testing is done properly.

Some examples of where the Secretary of State has given flexibility include the timing and methodology; where, when and how the tests are to be done; who is authorised to carry out testing on behalf of the specified person, so whether a manufacturer or a third party can undertake testing themselves; how the products are to be tested, for example if all products are to be tested or just a sample; whether samples are required to be provided to a third party for testing; and whether there will be any charges for tests, which could be set based on the costs involved or other regulations.

Subsection (3) states that charges will apply and subsection (2)(e) allows regulations to specify how those charges will be used, including provision on whether the fees collected can be kept by the authority responsible for testing or whether they should be paid into a consolidated fund via the Government’s general revenue. Subsection (4) states that any regulations under this section are subject to the affirmative resolution procedure, so voted for in Committee.

I have a few points to raise. The clause gives the Secretary of State the power to specify a person who would be required to carry out the test. It is important to clarify who that person might be, and whether it refers to manufacturers, importers, independent testing bodies or other stakeholders. As I have already mentioned, it would not be reasonable to get big tobacco companies to mark their own homework, so how will the Secretary of State determine who is specified for those tasks?

Additionally, once the product is tested and deemed compliant, will there be any follow up or long-term monitoring of product safety and health impact over time? There is post-market surveillance for medical devices, but what mechanisms will be in place to monitor the ongoing compliance with consumer products post market? At the moment, it seems that all a company needs to do is say what is in a product, be believed and be registered with the Medicines and Healthcare products Regulatory Agency. Currently, that happens simply on a company’s word. I am sure that in most cases—perhaps almost all—the company’s information is fair and true, but, in some cases, as has already been shown, that has not been the case, so it is important to consider that issue.

Furthermore, the phrase

“selection of products for testing”

in subsection (2)(c) is vague and could be exploited. The provision could allow a situation where only certain products are selected for testing, potentially skewing the results if products likely to fail are excluded from the testing process. If it is not properly regulated, that could result in cherry-picking, where only the “cleanest products” are tested to ensure they meet regulatory requirements.

There will clearly be some cost to industry for testing. Does the Minister have any further information on how much those costs will be? Based on the impact assessment, costs for the testing requirements and the testing of individual components could be quite high, so will the Minister provide more information about that?

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

It is a pleasure to serve under your chairmanship once again, Sir Roger. I am sure the shadow Minister can come in after me if she wishes to opine on clause 100.

Clause 99 grants the Secretary of State the authority to introduce and amend regulations concerning tobacco and vaping products. The provision ensures flexibility and responsiveness in the ever-evolving landscape of tobacco control that we have talked about previously. It is vital to ensure that the UK’s tobacco and vape regulations remain robust and up to date, especially given the increasing prevalence of vaping among young people and the emergence of new tobacco alternatives.

There are a number of real positives about clause 99. First, it provides adaptability to emerging public health concerns. The regulatory flexibility allows the Secretary of State and his Ministers to swiftly address any new health risks. A 2021 study by Action on Smoking and Health UK found that youth vaping rates had risen from 4% in 2020 to 7% in 2021, so, by ensuring that new products can be regulated promptly, clause 99 provides a mechanism for responding to those emerging trends.

The clause aligns us with international partners and best practices, and with global tobacco control standards, such as the World Health Organisation’s framework convention on tobacco control. Nations such as Canada and Australia have successfully implemented similar regulatory powers to adapt quickly to the new threats posed by novel tobacco products, demonstrating that adaptable regulations lead to better public health outcomes.

The final positive of the clause is the stronger consumer protections. Without the ability to introduce rapid regulatory amendments, harmful substances may enter the UK market. As I have mentioned, in 2019 illicit vaping products containing vitamin E acetate led to serious lung illnesses, noted in the US. By strengthening the regulatory framework, Government can proactively prevent such issues.

I have a couple of potential challenges. First, as I mentioned, there is always potential for malign industry influence. The tobacco and vaping industries have a history of lobbying against stringent regulations. Indeed, since this Bill Committee has been sitting over the past week or so, my inbox has filled with such representations. The UK must ensure transparency and public health prioritisation in all its regulatory decisions.

Secondly, in balancing the public health and economic impacts, we have to be careful about over-regulation possibly stifling innovation within the vaping industry, which some argue plays a role in harm reduction by helping smokers quit traditional cigarettes. Opposition Members have made that point a number of times: we want to ensure that the regulations are effective and robust, but, where vaping is being used as a smoking cessation tool, the regulations must be flexible enough to allow novel products to come on to the market, which could in future help smokers even further.

Clause 100 clarifies the scope and the applicability of the Bill, which means that it ensures coherence of enforcement. A clear definition of which products and businesses fall under the new rules will prevent, I think, ambiguity in their implementation. The positives of this clause are that, where there is clear application, the reduced ambiguity in interpretation and enforcement means that businesses will understand their obligations and consumers will know their rights. That is absolutely essential.

For example, the smoke-free public places legislation that came into effect in 2007 clearly benefited from the defined scope, which reduced any legal disputes. By defining the reach of the Bill, clause 100 allows authorities to target enforcement promptly. Without clear application provisions, which we see in this clause, regulatory loopholes could be exploited. The clause closes them.

Likewise, tobacco companies may attempt to bypass our regulations by selling non-compliant products online from overseas suppliers. Again, the strong application in clause 100 ensures that the law extends to online and cross-border sales. However, perhaps the Minister will outline how he understands that that will be enforced.

That brings me to my real concern, or I suppose question, about clause 100. The risk of online sales makes enforcement much more complex than it would have done had we introduced such a Bill 10, 15 or 20 years ago. How will the UK work with other international bodies to curb illicit cross-border sales, especially when things are sold online? Also—I have mentioned this point before, but I will continue to do so—when small retailers are struggling with compliance, there has to be some form of education and support for them from Government so that they can comply. The majority of the vaping industry, where we have decided it is legal, obviously needs a clear set of guidelines from the Department and the regulatory bodies to comply with the regulations.

[Dr Johnson]

Clause 100 concerns product safety, which is important. Even when a product is not safe, it should still be as safe as it can be and should contain only those things that are expected. When Lincolnshire police took a sample of vape devices from children from a school in my constituency, they found that many of the vapes contained dangerous ingredients that should not have been in there, including, in one case, I believe, an ingredient banned in the UK for many decades.

Clause 100 is important: the Minister must ensure that items on the market are safe. I come back to the evidence from Dr Laura Squire from the MHRA. She said that licensing a medical product does not mean that it is safe, and that these vapes are not medical products either. I am grateful to the Minister for saying in the last session that he is looking for a new home for the licensing and registration process for vapes and vaping products, because “MHRA-registered” suggests to the consumer that those things are in some way safer and more fully tested than they have been.

Clause 100 suggests very sensible regulation, but it gives the Minister the power to do that without significant oversight, even though the affirmative procedure applies. Since clause 90, all the Bill has done is to confer powers on the Secretary of State to regulate without actually providing a huge amount of detail on the Secretary of State’s intent. One never knows what the intent of a future Secretary of State could be in this regard.

Will the Minister comment on why regulation will be in secondary legislation rather than being detailed in the Bill? I understand the need to be agile and to think quickly to try to stay ahead of an industry that will try to adapt to addict more people to nicotine in other forms, but it would have been possible for the Minister to put much of that detail in the Bill, and to have taken a power in a final clause to amend parts of those regulations by statutory instrument. Most of the intent and most of the regulation would then have been known very quickly, but could be altered and adapted later. Why has the Minister taken the approach that he has, rather than a more up-front approach?

Clause 100(1)(a) requires

“producers or importers to have processes in place”.

Again, this is an important point. Most of these products seem to be made overseas, where of course the UK courts do not have jurisdiction. It is at the point of import, and with regards to the person who is importing, that we may need to be more responsible than with a producer where the items are made overseas.

I also urge the Minister, echoing the point made by my hon. Friend the Member for Farnham and Bordon, to consider online sales. We see already that some regulations that are in place for the real world rather than the virtual world create loopholes for regulations to be circumvented. Clearly, public safety has to be the Government’s first priority. The testing in clause 99 and the product safety regulations in clause 100 are a welcome initiative, but clearly the devil will be in the detail and the detail is not available to us today.

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

I am sorry that your croakiness is getting the better of you, Sir Roger, but hopefully you will be on fine form tomorrow for the private Member’s Bills—I am not sure whether the Whips on either side of the House are praying for that.

On clauses 99 and 100, I will go through the questions posed by the shadow Minister and the hon. Member for Farnham and Bordon. It is the responsibility of trading standards to test products if they believe a product contains illegal substances or could contain too much nicotine. Trading standards currently test products on an ad-hoc basis, which is contingent on funding. We aim to establish a testing regime to regularly check that products on the shelves are what they say they are. That will support overall enforcement, will ensure that registered products are safe for consumers and will allow retailers, in both brick-and-mortar establishments and online, to have greater clarity about and confidence in the products that they are able to stock to sale.

It is really important to consider online sales as a growing area. These measures have to be taken within the wider context of clauses and measures that we have already debated, in that any product for sale in the United Kingdom, whether in a shop or online, will have to be registered, and any retailer, whether a shop or online, will have to have the appropriate licences in place. There are clear and substantial penalties for breaching those licensing arrangements, and there are real and substantial consequences for selling products that are not in accordance with the descriptions on the registration of those products. When all of that is put into context, and testing is added in, we believe that this will be a robust regime.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clause 102 stand part.

[Dr Johnson]

Clauses 101 and 102 deal with the treatment of, and matters dealt with by, the 2016 tobacco regulations. Again, they provide the Secretary of State with powers to make regulations. Whether or not that will be done well, we are not really sure at this stage.

I understand the point the Minister made in response to the last debate, and it is of course true that regulations can be different in each part of the United Kingdom. In his discussions with Ministers in Wales, Scotland and Northern Ireland, they may have wished to proceed with regulations after the Bill, rather than to put them on the face of the Bill. However, that does not explain why the Minister has chosen to do the same, and I would be grateful if he could explain his choice to make regulations after the Bill, rather than to put them on the face of the Bill, with the power to modify. I ask particularly because we are now into, I think, the 12th consecutive clause that provides powers to regulate and that offers detail only on what any regulations might or might not say, rather than necessarily on what they will say.

In that vein, clause 101 outlines provisions to allow the Secretary of State to make regulations similar to, or corresponding with, the Tobacco and Related Products Regulations 2016. That is to be done under a new regulatory framework, which would seem to be designed to cover gaps that may exist in the powers under those regulations. Subsection (1) says:

“The Secretary of State may by regulations make provision…that is similar to or that corresponds to any provision of the Tobacco and Related Products Regulations 2016…other than Part 7 of those Regulations”.

Part 7 of those regulations deals with electronic cigarette advertising. The Minister may feel that later parts of the Bill will deal adequately with this point, but I would be grateful if he could explain why that part has been taken out. That is not instinctive, because other aspects of those regulations could be too. What is the reason for excluding that part? Otherwise, I have no particular points to make about clauses 101 and 102.

[Andrew Gwynne]

Clause 101 allows the Secretary of State to make regulations similar to any provisions set out in the Tobacco and Related Products Regulations 2016 —the TRPR, which we discussed in our debate on the earlier clauses—thereby amending them if needed.

In 2016, the TRPR implemented the 2014 EU tobacco products directive. The TRPR deals with the manufacture, presentation and sale of tobacco and related products, including herbal products for smoking, nicotine, vapes and refill containers, as well as smokeless and novel tobacco products. However, it does not regulate all products. As we know, new nicotine products such as nicotine pouches have emerged on the market—we discussed such things in our earlier deliberations—and we currently have no powers to change the regulations. We are also limited in what we can do within the existing powers—for example, on vape packaging.

The Bill builds on the TRPR and allows us to go much further, with new powers on, for instance, packaging and flavour requirements, and new registration powers that could be extended to non-nicotine vapes, nicotine pouches, heated tobacco devices and cigarette papers. As we have ascertained, the tobacco and vaping industries are extremely innovative and have previously attempted to circumvent regulations and exploit loopholes. The clause helps to stop them doing that by allowing us to amend the TRPR if necessary.

Clause 102 enables regulations to be made under powers in part 5 of the Bill to amend provisions in the Tobacco and Related Products Regulations that are within scope of those powers. This is a technical provision because, as I said in the previous debate, we have limited powers to amend the TRPR. For instance, if we introduce new vape packaging requirements using powers in the Bill, the clause will allow us to amend the TRPR if necessary, so that the new packaging requirements fit with those imposed under the TRPR.

The shadow Minister raised issues relating to secondary legislation. The technical and detailed nature of many of the Bill’s requirements means that they are not suitable to be put on the face of the Bill. For example, we may need to amend those requirements in response to market changes. It is also necessary to include detail on the circumstances of when products must be recalled, which will change over time.

There is a broader point here: with all the regulations that we propose to bring before Parliament, we want to get the measures right. We have a statutory duty in the Bill to consult before bringing in regulations, which is in part why we are making the measures in the way that we are. Part 7 of the TRPR is excluded because those things will now be in part 6 of the Bill. I commend the clauses to the Committee.

Question put and agreed to.

Clause 101 accordingly ordered to stand part of the Bill.

Clauses 102 to 104 ordered to stand part of the Bill.

Clause 105

Sub-delegation

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

--- Later in debate ---

[Dr Johnson]

Clause 105 states:

“Regulations under this Part may confer discretions.”

I confess that I do not understand what that means. I would be grateful for the Minister’s explanation.

Clause 106 is about the power to make provision binding on the Crown, which we have discussed at some length. My only point is on subsection (4), which clarifies that public servants are still accountable under the regulations. Some may have concerns about the enforcement of regulations within Government bodies. Could the Minister say anything further on that?

Clause 107 gives the Secretary of State power to make amendments to this legislation through regulations. It is quite a broad and flexible position: the Government can remove outdated laws that are inconsistent with new regulations established under the Bill and ensure that the regulatory framework can evolve. To some extent, that makes sense. Again, the Government seem to be keen to ensure that they can stay one step ahead of a very adaptable industry and try to protect the country from nicotine addiction. However, the clause is quite broad. I would be grateful if the Minister could further elaborate on his intent in it.

Clause 108 provides for the consequential removal of section 94 of the Children and Families Act 2014 because it is no longer needed. Clause 109 is about enforcement.

Clause 110 is about the consultation process. The requirement to consult before making regulations promotes transparency and accountability in the decision-making process and allows for adjustments and feedback from various groups, in the same way that line-by-line scrutiny of the Bill allows adjustment in line with discussion. It ensures that regulations are fair and based on a broad range of insights and evidence. However, I would be keen for the consultation not to be so long as to delay bringing in the regulations. As I have said before, much of the Bill hinges on the regulations the Government can provide. If the consultation processes are very long and drawn out, it could be a long time before any of these measures come into force to protect our children, in particular.

[Andrew Gwynne]

Sub-delegation allows functions to be carried out by someone who is not named in the primary legislation. We believe that that is vital for flexible implementation of Government policy and to keep the wheels of Government turning. Sub-delegation is a long-accepted part of the legislative process, and having the ability to allow technical experts to undertake technical tasks, or to set out very detailed technical criteria in guidance instead of using parliamentary resource, will allow us to get on with implementing the measures in part 5 of the Bill.

The shadow Minister is right to be concerned about having safeguards to ensure that any sub-delegation of authority is not abused. Sub-delegation to persons must be set out in regulations. As I have previously said, there is also a statutory duty to consult on any regulations made under part 5. The regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.

On the wider consultation the shadow Minister referred to, the Government chose to include consultation clauses because we want valuable input from different stakeholders on our proposals before they are introduced. As is conventional with such clauses in primary legislation, the clause does not prescribe the specific people the Secretary of State must consult. That is to ensure that the Government can consult appropriate stakeholders, and the list may evolve over time.

UK-wide regulations made under part 5 might deal with devolved matters. The UK Government are therefore required to seek consent from the devolved Governments. My Department will continue to work closely with the devolved Governments on proposals for UK-wide regulation of products. I therefore commend the clauses to the Committee.

Question put and agreed to.

Clause 105 accordingly ordered to stand part of the Bill.

Clauses 106 to 113 ordered to stand part of the Bill.

Clause 114

Publishing advertisements

[Dr Johnson]

I beg to move amendment 87, in clause 114, page 63, line 16, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 88, in clause 115, page 64, line 3, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 115 stand part.

Amendment 89, in clause 116, page 64, line 30, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 116 stand part.

Amendment 90, in clause 117, page 65, line 18, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 117 stand part.

Amendment 91, in clause 118, page 66, line 3, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 118 stand part.

Amendment 92, in clause 119, page 67, line 8, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Amendment 93, in clause 119, page 67, line 24, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 119 stand part.

Before I call the shadow Minister to speak to amendment 87, I should indicate to her that, since the clauses each have amendments proposed to them, it would be helpful to know as we work through the debate whether she wishes to press them to a vote.

[Dr Johnson]

Amendment 87 is to clause 114. This group of clauses represents a substantial part of the Bill, as it applies to advertising and sponsorship. Those became an issue as part of the Health and Social Care Committee review of vapes back in the last Parliament. They were also discussed during debate on the last iteration of the Bill last Easter. In fact, I tabled a fair number of amendments on the subject in the last Parliament.

Clause 114 creates an offence where a person, acting in the course of business, publishes an advertisement in the UK promoting certain regulated products such as tobacco, herbal smoking products, cigarette papers, vaping products and nicotine products. To commit the offence, the person must know, or have reason to suspect, that they are publishing advertisements for such products and that the advertisement will promote those items.

Subsection (2) outlines the penalty for this offence, which is up to two years in prison, a fine or both. For summary conviction, the penalties vary by jurisdiction, with different maximum prison terms in England and Wales, Scotland and Northern Ireland, but a fine may be imposed in all cases. The clause aims to regulate the advertising of tobacco and nicotine products by placing responsibility on businesses and individuals publishing such advertisements, to ensure they comply with the law.

I return to the question asked by my hon. Friend the Member for South Northamptonshire regarding use of the word “publish”, and I have in mind particularly the online environment. Could the Minister confirm who is the publisher of, for example, a TikTok video? Is it the individual who uploaded it, or is it TikTok itself?

I also have a question about the words “purpose” and “effect”. Are they too vague? Could they lead to overreach and confusion about what constitutes promotion? It is unclear whether an advertisement needs to explicitly promote a product or whether a more subtle influence will be sufficient. How broad does the Minister intend the interpretation of “purpose” and “effect” to be? Can an advertisement for a lifestyle product that features someone smoking or vaping in the imagery be considered as promoting a tobacco product, even if it is not the main focus?

Another issue arises from the clause’s reliance on subjective knowledge or suspicion. The clause states that a person commits an offence if they know or have reason to suspect that the advertisement has the purpose or effect or promoting the product. In cases where the individual involved in the publication of an advertisement did not have direct knowledge of, or did not suspect, the advertisement’s purpose, what level of proof is required to say that they “know” or “have reason to suspect”? For example, if an advertisement is published by the third-party platform or agency, perhaps online, can a person who did not directly control the advertisement’s creation still be held liable? This is really important when it comes to the online world, where the sheer volume of hosts may make it incredibly challenging for an online provider to look at every single post that is put up.

On advertising, the impact assessment provided by the Government says on page 101:

“Despite advertising restrictions existing for nicotine vapes in some settings including television, radio and through information society services, such as internet advertising or commercial email, evidence shows advertising is noticed more by young people, and this has increased in some settings in recent years. Additionally, despite being prohibited under TRPR, the ASA report social media is increasingly being used to advertise vapes to children.”

I note the differences between the devolved nations. Under the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016, Scotland has powers to go further on advertising and sponsorship—for example, powers to ban nicotine vape advertising in more settings than those in TRPR, to ban sponsorship agreements involving nicotine vapes, and to introduce regulations on brand sharing.

Paragraph 655 of the impact assessment says:

“CRUK estimate the annual cost of advertising for the sector in 2019 was £32m. Under this policy proposal, no advertising would be permitted so this previous cost would be saved by businesses, and partially offsetting their lost profits from reduced vape sales outlined in the monetised costs section.”

Paragraph 666 states:

“Similar to the monetised benefits above for vapes, businesses who currently fund advertising of nicotine products, herbal smoking products, and/or cigarette papers will save this money”.

Of course, advertising companies will need to find their revenue somewhere else. To me, it seems sensible to restrict the advertisement of these products, as I said before.

We must remember that young people are at the heart of this Bill, and the impact assessment also notes how susceptible young people are to advertising and why this clause is of particular relevance. Paragraph 499 highlights a survey conducted by Cancer Research showing that advertising is more noticed by young people. The survey results reveal that

“for all types of media analysed, apart from ‘email/SMS’, youth (16 to 19 years) noticed advertisements more than adults (18 years and older) in 2018 in England. The locations and media channels surveyed included: inside shops selling cigarettes; kiosks; web/social media; billboards/posters; newspapers/magazines; events/festivals; bars/pubs; and email/SMS. The largest difference in the two age groups was seen for 'billboards and posters’ with 31.4% of youth noticing marketing compared to 5.9% of adults.”

It also notes that

“youth (16 to 19 year olds) never users (who have never smoked or vaped) report higher noticing of vape advertising across all media types, apart from email/SMS compared to adult exclusive smokers”.

Action on Smoking and Health did a survey which found that

“more than half (55%) of 11 to 17-year-olds are aware of vape promotion in shops compared to 37% two years ago, while 15% see adverts on billboards, up from 12% two years ago.”

It is clear that advertising needs to be restricted.

Amendments 87 to 92 ask the Minister to consider how to ensure that people who are smokers understand the information that is available to help them quit. At the moment, a smoker might go into a doctor’s surgery or an antenatal clinic and see information on smoking being bad for them, which is appropriate. They may also see information on opportunities for nicotine replacement therapies, or even on vaping as an alternative. If the Minister is keen to ensure that people who are smokers can use vapes as an alternative, which is believed to potentially be better for them than continuing to smoke, how will they be given that information if the products cannot be advertised or promoted?

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

The hon. Lady is eloquently articulating the necessity of controls around advertising. Does she share my concern about the risk of creating a loophole, whereby advertising could still happen if there were warning notes on adverts? The Bill seeks to reduce any type of loophole through which an advertiser might promote vaping—with words underneath that this is a smoking cessation device—in all settings. Does she also agree that the NHS is already able to articulate smoking cessation methods to patients, without the need for brand advertising?

[Dr Johnson]

The hon. Gentleman and I agree that we need to restrict the advertising of these products, because we do not want people, particularly young people and children, to start becoming addicted to nicotine. We agree on that. However, the Bill does not say an advert needs to promote a brand of nicotine product to be considered promotion or illegal under the Bill. It simply says “a nicotine product” or “a tobacco product”. I am keen to ensure the Minister clarifies that a doctor—I declare an interest as a doctor—or other health professional such as a pharmacist, like the hon. Member for North Somerset, will not find him or herself on the wrong side of the law for promoting vaping to individuals who smoke.

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

It is a pleasure to serve under your chairmanship, Sir Roger. Current medicine regulations do not allow products to be advertised, but do not get in the way of smoking cessation clinics that currently take place at GP surgeries or pharmacies. The amendments the hon. Lady is proposing are, therefore, not needed. In fact, as my hon. Friend the Member for Chatham and Aylesford suggests, they could be used as a loophole for advertising by an industry that has been shown to be very successful at finding ways around legislation to increase market share and the numbers of smokers and vapers.

[Dr Johnson]

I thank the hon. Gentleman for his intervention. He comes to this debate with significant experience as a pharmacist himself. In bringing forward this amendment, it is not our intention to create a loophole. None of us wants to see children vaping or using nicotine products and developing an addiction they struggle to quit for the rest of their lives, with the associated costs to their health and their purses. However, I want the Minister to assure the Committee that he has considered the position of pharmacists and people who will legally be selling these products as a stop smoking device, perhaps in a hospital clinic or as a health professional, and made sure they will not be criminalised.

If we are to follow the chief medical officer’s advice—that vaping is not suitable for children but is suitable for adults who smoke as a harm reduction measure—and are to have that harm reduction process in place, which I believe is the Minister’s intention, it is important to consider how it will continue under these regulations. It is important to consider how pharmacists and other health professionals will be able to have discussions with their patients or clients in which they may wish to say, “Vaping is better for you,” and in so doing effectively promote the process—not a specific product, but the genre of products.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

I thank the hon. Lady for giving way. I share the concerns expressed by the shadow Minister and by my hon. Friends about inadvertently creating a loophole, which we know the tobacco industry and others will drive a coach and horses through. I understand that part of the purpose of tabling the amendments is to get reassurance and clarity on certain aspects of the Bill, but on the point she was just making, is not the relevant provision subsection (1)(a), which refers to the person

“acting in the course of business”?

I am sure the Minister will clarify later, but perhaps the clause deals not with medical practitioners, pharmacists or doctors, but with media agencies or companies whose reason to exist is as a business for selling media, for publishing, for design. They do not operate cessation services and are not medical professionals or pharmacists themselves. In the realm of instructions to a service industry, whether it be a publisher or a business that designs advertisements, does this provision not simply make it crystal clear that, no caveats, they cannot do anything that is listed in the clause, because to do so will be an offence?

[Dr Johnson]

I thank the hon. Gentleman for his intervention, but while pharmacists are highly trained clinicians with the capacity to prescribe a number of products in specific cases, they are also businesses. One’s local pharmacy is a business. Pharmacists sell products; they take money and make variable amounts of profit. A GP is a private entity, as the Minister will have learned during the national insurance contributions debate. Some GP practices are dispensing practices—the GP prescribes a product, which is dispensed from that practice. There are also private clinicians who provide GP surgery or stop smoking services at a price. I do not think that “in the course of business” necessarily provides the distinction that the hon. Member for Cardiff West hopes it does, but perhaps the Minister will provide further clarity.

It might be possible for the Minister to include an extremely narrowly drafted exemption for medical professionals providing advice in relation to stop smoking services and antenatal clinics giving advice to a current smoker, but perhaps he feels that those clinicians are covered already. One of the reasons for tabling the amendments is to have this debate and ensure that the clauses are carefully considered. All of us, on both sides of the Committee and the House, want to improve the health of the nation; we all want the Bill to improve the health of the nation. If the chief medical officer’s advice is that for adult smokers, vaping is better, those products need to be available to adult smokers.

I will move on to clause 115, which extends the offence in clause 114 of publishing advertisements to those who design the advertisements for regulated products, such as tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. As in clause 114, to commit the offence the person must know that the advert has the purpose of promoting one of the regulated products and that it will be published in the UK. The latter part is important. Again, I would like the Minister to ensure that there is no loophole for people to design things and say they are expecting them to be promoted abroad, and then they are promoted in the UK. That could be quite a significant loophole. Businesses could get around that with contract clauses, I suspect.

Subsection (2) establishes the penalties for the offence, which are a conviction on indictment of two years, a fine or both. Summary convictions carry varying penalties based on the jurisdiction in which the offence was committed. That does leave the situation where somebody who has committed the same offence in England, Scotland and Wales by publishing it across those jurisdictions could face several different fines in different jurisdictions for exactly the same advert.

Another question is about the designers. Individuals may be involved in the design of advertisements, but not have full control over the final content or how the advertisement will be published. Should liability be extended to individuals working on the design, or should it lie more squarely with the business or entity that ultimately publishes it? Is it fair to hold designers accountable for advertisements over which they have limited control? If they have only designed part of the advertisement, and it is not the bit in which the product is promoted, will they still be liable for the whole advertisement?

Clause 116 introduces another offence, this time for businesses that print advertisements that promote tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. They must know or have reason to suspect that they are printing an advertisement for those products—if they are printing it, they should know what they are printing—and that the advertisement will be published in the UK. Again, that will presumably have to be dealt with by contract law and involve some quite significant fines.

Clause 117 makes it an offence for persons acting in the course of business to distribute the advertisement. The question here is about physical and digital adverts. If a person is distributing the adverts on a sheet of paper, putting billboards on the wall or driving around a truck with a billboard on the back, it is clear that they know what they are doing and it is clear who is doing it. If adverts are appearing online or being distributed online, can the Minister specify who will be held responsible? Could somebody sharing an image that was produced by somebody else be a loophole?

Clause 118 expands the scope of responsibility to those who cause advertisements to be published and distributed within the UK. That seems sensible.

Clause 119 is the Government’s attempt to focus on the businesses that provide internet services. The provision is quite broad. Not all providers are UK-based, though. If they are not, how can they be held accountable? The provision could be seen to apply to various types of online platform, including social media search engines and website hosts. The key issue is whether a business that merely provides a platform or service for the publishing and distribution of advertisements can be held liable for content that is uploaded or shared by third parties, particularly where there is a huge volume.

The clause places responsibility on service providers that know or have reason to suspect that advertisements promoting tobacco or vaping products will be distributed through its services. That could apply to a wide range of internet service providers, from major global tech companies that are household names to the smaller, niche providers that operate in the UK market. I understand why that is important, but will the Minister say more about the person who is paying for the advertisement? The Bill covers publishing, designing and distributing an advert and providing it on the internet, but what about the individual paying for it? Ultimately, an advertisement rarely comes for free. How is that to be regarded?

The measures to reduce advertising for vapes and smoking products are sensible public health measures to reduce uptake. As we discussed in the debate on diet and obesity earlier this week, advertising clearly works. I recalled in that debate some of the adverts I remember from my childhood, such as “The red car and the blue car had a race” for Milky Way—I was pleased that the blue car won in that case, Sir Roger—and “A finger of fudge is just enough to give your kids a treat”. Those memories stick in the mind for many years. Advertising is effective and induces children to try products, so banning advertising for vaping and smoking products should be very beneficial, but I urge the Minister to consider whether he has covered the full scope of those who are responsible for adverts and at the same time excluded those who may play only a very small part in the advert and not realise that it will later become an advert for a smoking or vaping product. Has he considered carefully how a medical professional, clinician, pharmacist or similar person can still provide and openly discuss vaping products with their patients and clients, so that they can use them as a quit aid?

[Sarah Bool (South Northamptonshire) (Con)]

It is a pleasure to serve under your chairmanship, Sir Roger. I just want to go through something again. Obviously, the purpose of part 6 of the Bill is to establish the rules about advertising, which I completely understand. It sets out that it is an offence for a person in the course of business to publish an advertisement, to promote products, to design advertisements, to print an advertisement, to distribute an advertisement, to cause publication, design, printing or distribution in the UK, or to provide an internet service by means of which an advertisement is published or distributed.

--- Later in debate ---

[Jack Rankin (Windsor) (Con)]

Members will be glad to know that I have curtailed my remarks, because the Conservative Benches almost seem to be in agreement, which will delight the Whip. However, I do have concerns about part 6 and some questions on a couple of specific points, and I would appreciate it if the Minister considered them.

One of my concerns is the potential weakness of the public consultation aspect. It is my understanding that other parts of this Bill—particularly flavours and packaging restrictions—will be consulted on before secondary legislation is introduced, but that that is not necessarily the case for this part. This part should be subject to that same level of public scrutiny. It seems to me that experts, consumers, retailers and even legitimate parts of the vaping industry should have the opportunity to have their views heard on these clauses before the Government move forward with the legislation.

The first of the overriding concerns that have been articulated is that the Government should not accidentally make it harder for adult smokers to switch to vapes and other safer nicotine products. The Government’s own risk assessment mentions that as a risk, so I would welcome the Minister’s comments on that.

Secondly, we have to be a little bit careful about imposing burdensome restrictions on compliant small businesses, particularly convenience stores. It is my understanding that, for some convenience stores, up to a quarter of their sales come from tobacco and vapes.

On the top lines on part 6, it seems to me that the advertising and promotion of vapes and other nicotine products, including nicotine patches, could very well be an effective means of reaching adult smokers and helping them to switch. What assessment has the Minister made regarding the effect on switching rates that this advertising ban may have?

ASH reported that half of smokers incorrectly believed that vaping was more harmful than, or equally harmful to, smoking, and that trend is one that has increased. Is the Minister not concerned that, by banning the advertisement of these products, the Government could be at risk of inadvertently exacerbating that problem and undermining its own public health messaging that

“Nicotine vaping is substantially less harmful than smoking”?

To my mind, if we are to continue to encourage smokers to switch, it is crucial that they are aware of the relative risks of vapes and nicotine patches compared with cigarettes. I know that the Minister has made the point that no level of use is safe, but we are talking about the relative risks here. To my mind, there should be provision in this legislation to allow for the promotion of information on the relative harms of vapes and nicotine patches compared with cigarettes. I think that is part of the nub of what my hon. Friend the shadow Minister is getting at.

[Dr Caroline Johnson]

My hon. Friend is making some good points about the importance of ensuring that people can access nicotine replacement therapy in its various forms if they wish to stop smoking, because that will be healthier for them. I understand what the hon. Member for Winchester has said about prescription-only medicines, and that it is illegal to advertise prescription-only medicines to the public, but not all nicotine replacement therapies are prescription-only medicines, so those can be advertised to the public at the moment.

[Jack Rankin]

I thank my hon. Friend for her comment. I was struck in the written evidence—we have been overwhelmed with written submissions; I am not sure whether we were expected to read them all—by a comment by a Professor Peter Hajek when he was speaking to the Health and Social Care Select Committee. He said:

“In Tokyo there were huge, big posters showing the risk of smoking and, at one tenth of it, in a histogram, was the risk of IQOS”—

I would translate “IQOS” as heated tobacco. He then said:

“Within about five years—it has never happened before and is a fantastic achievement for public health without any involvement of Government—sales of cigarettes in Japan dropped by 50%.”

As I understand it from his description of that histogram, it was an advert by a private heated tobacco company, showing the relative sizes of the risks of cigarettes and of heated tobacco. That is something that this advertisement ban might prohibit, but that might help the Government in their aims to move to a smoke-free generation.

[Dr Johnson]

I am afraid I might need to break the happy agreement on the Conservative side. While I understand my hon. Friend’s laudable aim of encouraging those who smoke to use a less harmful product, which is a good thing, the clear evidence we have seen is that tobacco, in all its forms, is essentially harmful. Moving people from smoking tobacco in cigarettes to using heated tobacco may or may not reduce the harm, but it would still be significantly harmful. It would be better if an individual saw their pharmacist or clinician to get proper nicotine therapy, which is designated by the MHRA as a properly medically regulated product, rather than moving on to a different commercial product that is still harmful for them.

[Jack Rankin]

My hon. Friend makes her point well, and she is right that there is a slight disagreement between us. The Government should be wary—

[Dr Johnson]

rose—

[Jack Rankin]

I am going to make some progress. Even judging by the Government’s own standards, we should be treating vaped tobacco and heated tobacco very differently from cigarettes. We should be a little careful about the unintended consequences of this measure, and I hope the Minister can say how he might consult other bodies to look at those unintended consequences.

I have a small concern with the internet services measure in clause 119. Again, it seems that the Government’s aims in this legislation is to prevent targeted communication on vapes and nicotine products to adult smokers, such as via emails or digital channels, which can reach them directly. I understand the point about not wanting to aim such communication at children, but targeted communication, such as using people’s internet search history, could be an effective means of encouraging smokers to quit. I mentioned a few weeks ago the work that NHS Essex is doing with a vaping company, targeted at adult smokers. I do not think the Government, in achieving their aims of a smoke-free generation, should be too prescriptive on this.

[Andrew Gwynne]

I am grateful to hon. Members for our discussion on amendment 87 and subsequent clauses. These amendments intend to make an exemption under the advertisement ban to allow vaping products to be promoted by businesses as a smoking cessation tool for existing tobacco smokers. I am sympathetic to the shadow Minister’s intention behind the amendment to ensure that smokers are encouraged to use vapes as a quit aid. That is why the Bill as drafted will continue to support the promotion of vaping as a quit aid for smokers through the appropriate channels. By “appropriate channels”, I say to the hon. Lady that we mean public health authorities.

[Dr Johnson]

I want to clarify one small point, if I have not made myself completely clear. On a personal level, I do not particularly want people to be persuaded to go from smoking to vaping, because I think it is an alternative addiction that they will get stuck on. I would much prefer them to be directed towards other forms of nicotine replacement therapy, which will be effective and more short lived. However, given that the current medical advice is that vaping is better, I think it is important that it is available.

[Andrew Gwynne]

I get that the shadow Minister is dancing on a pinhead, but she has brought to the Committee a set of amendments for which that would be the purpose. If they are pushed to a vote, I am sure we will have the bewilderment of the shadow Minister yet again abstaining on measures that the shadow Minister has brought before the Committee.

We believe it is for public health authorities to promote vaping as a quit aid for current smokers. For example, local stop smoking services will continue to be able to promote vapes to smokers as a less harmful alternative following the passage of the Bill. We strongly believe that any promotion of vaping as a way to quit smoking is best led and delivered by the appropriate authorities, such as local stop smoking services, public health professionals and the national health service.

The clauses in part 6 of the Bill, taken in totality, will form a complete ban on advertising and sponsorship for tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products, bringing them all in line with tobacco. It is unacceptable that children are exposed to vape adverts on the sides of buses and in shop windows when they make their way to school.

Clauses 114 to 117 make it an offence for anyone

“acting in the course of business”

to publish, design, print or distribute an advertisement

“whose purpose or effect is to promote”

a relevant product within the Bill. Upon conviction, anyone who has committed an offence under part 6 will be liable to a fine, imprisonment or both. These clauses are an essential part of the overall suite of restrictions that will ban advertising of relevant products within the UK. Taken together they will ensure that even if someone has not designed or published an advert, it will still be an offence to print or distribute that advert. This is key to stopping their eventual distribution. I hope that answers the questions about whether there is a loophole allowing adverts produced for international markets to be distributed in the United Kingdom. The distribution of those adverts will be an offence.

Clause 118 makes it an offence to cause the offences I have just set out. It would be an offence if a person “knows or has reason to suspect” that they are causing these things, whereas if someone unknowingly delivered a package containing leaflets, they would not be guilty of the offence. Without this clause, it would be possible to instruct others to publish, design, print or distribute adverts without committing an offence. Clearly, we need to ensure that it is also an offence to cause these things to happen.

Lastly, clause 119 makes it an offence to provide an internet service in the course of a business by means of which an advert for a relevant product is published or distributed. This would mean that an organisation that provides a service to a person—for example, Sky or TalkTalk—would commit an offence if they provided a service that enabled the online advertisements to happen and if they permitted that space to be used to promote relevant products. That could include becoming aware that the service is hosting a vape advert and subsequently failing to take that advert down. This is particularly important, as young people, and some not-so-young—we now know that, if we have a hoof that needs trimming, the hon. Member for Farnham and Bordon is our man, although I am not sure whether he provides the service or just passes the request on—

[Andrew Gwynne]

Clause 119 is important, as children spend a lot of time online and therefore are more exposed to a variety of internet services. It is unacceptable that a child using the internet to study might be exposed to a variety of vape adverts. We need to take action to stop these products being deliberately advertised to children, to protect future generations from becoming hooked on nicotine.

The shadow Minister’s amendments would in theory allow any shops or businesses to advertise vaping products to existing tobacco smokers. It would be incredibly difficult to target the advertisement of vaping products to current smokers alone, without the risk of children and non-smokers seeing the promotional material. That would not only make enforcement complicated, but make the messaging about the ban inconsistent. Research on tobacco advertising bans has shown that comprehensive bans were significantly more effective than partial restrictions in reducing smoking rates.

Hon. Members has posed a number of questions, which I will address. What constitutes an advert and how will the decisions be made? The Advertising Standards Authority is the regulator, and it will take a proportionate approach. All adverts are captured. Decisions on whether something is an advert will be made on a case-by-case basis, and it is for the ASA to decide. If the purpose or effect of something is to promote a product, it will most likely be captured. I say to the hon. Member for Windsor, “Worry not”: the ASA knows how the internet works, because it is dealing with it daily, and as we speak.

How does liability work? The offence will be charged on a case-by-case basis. In most cases, we expect that this will involve a company. The ASA is experienced in making decisions on tobacco restrictions at the moment, and the provision merely extends the powers and responsibilities that it is already undertaking with regard to a variety of other products. On social media influencers, it depends on how the ASA approaches the matter; if it decides that something is constituted as an advert, action can be taken. Nobody is above the law of the United Kingdom.

The hon. Member for Windsor asked why we are making changes to the law without consulting. To be clear, tobacco adverts are already banned under the Tobacco Advertising and Promotion Act 2002, and the provisions in part 6 of the Bill will simply maintain the existing ban on tobacco advertisements. We were elected with a mandate to carry out our manifesto commitments, one of which was to stop the advertising of vapes to children. We already know that the measures to restrict vape advertising are strongly supported: 74% of adults in Great Britain support banning the advertising and promotion of e-cigarettes at point of sale, at the till, in stores and as people enter shops, and only 6% are opposed.

Does aligning vapes with tobacco in this area contribute to misconceptions that vapes are just as harmful as tobacco? Although the approach towards vapes and towards tobacco will align in this area, our future regulations on other vape measures will be carefully considered so that there is a clear difference between these products. Given that vapes are less harmful than tobacco, we do not intend to treat them in exactly the same way as tobacco. To be clear, there is no more dangerous product that is legally sold in our shops than tobacco—a product that kills two thirds of its users—but we do not want to inadvertently addict a new generation to nicotine. That is the reason for the advertising measures.

Will the ban on the advertising of heated tobacco products increase the demand for traditional cigarettes? The Department’s opinion is that heated tobacco products are covered under the 2002 Act, which prohibits the advertisement and sponsorship of tobacco products. The new definition just ensures clarity on the scope of the legislation, as well as future-proofing policy. This is not a new ban; we believe that the existing tobacco advertising ban appertains to heated tobacco products in any case.

We very much want people to give up all forms of tobacco. That is why this Government have invested a further £70 million for smoking cessation services in the new financial year, and why I maintain that, although we are saying to tobacco companies, “This is as good as it gets,” we will move heaven and earth to shrink their customer base even further with appropriate smoking cessation. With that, I ask the shadow Minister to withdraw her amendment, and commend the clauses to the Committee.

[Dr Johnson]

The Minister knows that I believe strongly that we need to stop people smoking, because of its dangers, and that we need to stop children from taking up any form of nicotine, because we have heard how harmful nicotine is to them. He will also be aware of my argument—which I made in relation to the previous iteration of the Bill—that advertising, marketing and sponsorship should be included to reduce the appeal of the products to children. I support the clauses, but I was keen to debate how smoking cessation services will be able to discuss these products. The Minister has been reasonably, if not absolutely, clear on that, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clauses 115 to 119 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)

Tobacco and Vapes Bill (Twelfth sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 23rd January 2025 Public Bill Committees

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

It is good to see you back in the Chair, Mr Dowd. These clauses concern the defences and exemptions to the advertising bans on relevant products—tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products—as set out in clauses 114 to 119, which we have just debated.

Clause 120 sets out three situations in which someone has a defence to the advertising bans. Those are trade adverts, sending information in response to a request and adverts for outside the United Kingdom. The clause sets out that adverts contained only in communications between members of specific, relevant trades in the course of business will have a defence if charged with an offence. For example, a vaping company could send promotional materials to someone responsible for buying products to sell, but that would otherwise be banned if aimed at members of the public. Similarly, a defence exists if the advert is contained in a publication that is not printed or intended to be marketed in the UK. The final defence is that if businesses receive a direct request about their products, they are permitted to respond to that request with material that would legally be considered an advert.

Clause 121 restates existing law that allows specialist tobacconists to advertise specialist products in their shops. Specialist tobacconists will therefore be exempt from the restrictions on advertisements in part 6 of the Bill, provided that their adverts meet certain criteria, such as being visible only inside the shop. The clause empowers the appropriate national authority in each of the devolved Administrations to make regulations to specify what health warnings and information must be included in the adverts. Specialist tobacconists make up a tiny percentage of the market in the UK and are focused on specialist products such as pipes and cigars, and this exemption reflects the specialist nature of the trade carried out by these shops. However, tobacco is a uniquely harmful product, so we will continue to monitor the specialist market closely in case the situation changes.

Clause 122 ensures that no offence is committed under part 6 of the Bill for something that is regulated under the law on displays. For example, displaying a relevant product or the price of the product in accordance with any regulations concerning displays would not be considered an advertisement for the purposes of advertising offences. Without this provision, a display of a relevant product or other material that is permitted may be prohibited as an advertisement. The provision therefore allows for shops to display a vape, subject to the restrictions set out in legislation on their display, without it being considered an advertisement.

However, in the relevant provision for Scotland, the clause refers only to the legislation on the display of the tobacco products themselves and does not include the legislative provision on the display of the prices of the tobacco products. Government amendment 1 has been made to ensure that both are captured when determining whether something is subject to the law relating to displays, as the equivalent provisions do for England, Wales and Northern Ireland. That has been done at the request of the Scottish Government to make the approach in Scotland consistent with that in the other three jurisdictions across the United Kingdom. It is for that reason that the Government commend this amendment and clauses 120 to 122 to the Committee.

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

I noticed that Government amendment 1 was included in this grouping. Does the Minister want to talk about it?

[Andrew Gwynne]

I did.

[Dr Johnson]

Oh, sorry. I must have had a moment.

Clause 120 concerns advertising defences. I wanted to ask specifically about the defence relating to the relevant trade communication being directed solely at persons involved in that trade. Does that include adverts within trade magazines? Does it include trade shows and trade stands where these adverts might be visible? Will these adverts or promotions need to be explicitly directed at trade, and will they need to be only visible to trade, or could this actually create a loophole in which there is a suggestion that these are trade magazines, but are actually more widely available than that and therefore provide an advert to the public? How will that work? What if one is doing a trade show in a relatively public venue such as an exhibition centre?

[Andrew Gwynne]

I can answer that very quickly and clearly, because it was set out in my opening speech. I am not sure whether the shadow Minister was fully paying attention, because it also included Government amendment 1, in relation to bringing Scotland into line with the rest of the United Kingdom on these measures. The legislation sets out that adverts contained only in communications made between members of specific relevant trades in the course of business will have a defence if charged with an offence. I think that is pretty clear.

[Dr Johnson]

I understand what the Minister is saying, but if members of a trade body are being spoken to at a trade show, for example, will the people running the show need to make sure that people who are not members of the trade do not come? Sometimes, people may bring other people along with them. Will there need to be provisions to ensure that when that trade show is advertised, it is not done in a way that promotes the product itself? If the show is to happen, people will need to know about it, so how will they find out? This is just about making sure there are no loopholes.

There is also the business of who is publishing and who is distributing. If someone were to design, produce and print leaflets in the belief that they would be distributed abroad, but then someone gave some young delivery chap, perhaps in his teens, some money to deliver them to a group of households, as happens with pizza delivery adverts and such things, the young lad would be committing an offence of which he may or may not be aware. That is no excuse under the law, of course, but the person with greater culpability would be the person who gave him the leaflet. How does the Minister intend the law to be applied in such a situation?

Clause 121 concerns specialist tobacconists. The Minister has been quite consistent on every aspect of this legislation—apart from penalties—in saying that tobacco in all its forms is bad for people and needs to be eliminated, so I am interested in this specialist tobacco exemption. I understand that the advert is going to be available inside the store, and not visible from the outside, and that it will exclude cigarettes and hand-rolling tobacco. I am interested to understand why it will specifically exclude those and not other forms of tobacco. The Minister might say, “That is what the legislation says at the moment, and we want to keep it the same,” but passing new legislation is an opportunity to change things, review what we currently have and decide whether it needs to be different. I am interested in his reasons for that decision.

The clause defines a “specialist tobacconist” as a shop

“more than half of whose sales…derive from the sale of cigars, snuff, pipe tobacco and smoking accessories.”

That would appear to be on the basis of the cost or value of sales. What is the reason for that definition? It may be that that is the existing definition, but has the Minister considered whether specialist tobacconists should be defined according to whether they sell a greater or a lesser amount of such products? Also, we see vape shops on virtually every high street now, so how will the Bill apply to them?

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

It is a pleasure to serve under your chairmanship again, Mr Dowd. My understanding is that Government amendment 1 simply makes a correction to bring things into line, so I very much doubt that we will oppose it.

It is clearly necessary and right to have some defences written into law, but I have a few questions about clauses 121 and 122. As the shadow Minister said, the Minister and the Government have been extraordinarily clear that tobacco-based products, as well as vapes, are unhealthy and have a significant impact on public health. It is therefore interesting that the Minister has not been so consistent when it comes to what one might call specialist or traditional tobacco.

[Dr Johnson]

My hon. Friend is talking about specialist tobacco. Can he or the Minister enlighten the Committee as to whether specialist tobacco is less harmful than any other form?

--- Later in debate ---

However, there may be a couple of challenges and considerations. As I think the shadow Minister mentioned briefly, there is a risk that some retailers might attempt to exploit the distinction between displays and advertisements to circumvent the advertising regulations that we have spoken about. For instance, arranging displays in a manner that draws undue attention or includes promotional elements could undermine the intent of the legislation.

[Dr Johnson]

My hon. Friend is making a very important point. Does he agree that the timing will be important too, because this legislation will come into force more quickly than the regulations? The Minister said that he would “go like the clappers”, but we have not had further definition of what that means or of how quickly regulations will come into force. Regulations on displays may lag behind the Bill’s provisions on advertising, so companies are likely to use the display provisions to circumvent the advertising provisions until the Minister brings the regulations in.

[Gregory Stafford]

I completely agree. It is essential that not only this clause and the regulations it will bring in, but all the clauses we have talked about—both those where regulations are included on the face of the Bill and those that give the Minister, the Department for Health and relevant authorities the power to implement other regulations and restrictions—are phased appropriately, so that retailers and manufacturers can adjust to the new laws. They must also be introduced rapidly enough that there are no loopholes, and in the right sequence so that people cannot take advantage of any loopholes.

That brings me to the point that vigilant enforcement and clear guidelines are necessary to prevent such exploitation. I would be interested to know from the Minister whether that links back to the previous clauses, in which we talked about the display of notices.

Likewise, we need to ensure that there is consistency across the jurisdictions. We have devolved government in this country, but if regulations concerning the display and advertisement of tobacco and vape products vary between the different countries of the United Kingdom, there could be cause for some legal issues. It is therefore vital to ensure that clause 122 is applied consistently across all parts of the United Kingdom to prevent confusion among retailers and to maintain the stated aim of the Bill, which is uniform public health standards.

I have a few questions to the Minister. First, will he be developing comprehensive guidelines for what constitutes a display versus an advertisement? These guidelines should include visual examples to assist retailers in understanding and complying with the regulations. I mentioned it before, but regular training and communication is essential so that retailers can be educated about the distinctions and the legal requirements. Continued regular communication will help to address any ambiguities and keep retailers informed about any changes to the laws or regulations that the Minister or his successors might introduce. The Minister is laughing, but I think it is more that he received a funny text than because of my speech.

Finally, robust monitoring and enforcement is essential to ensure that there is compliance with clause 122. That should include routine inspections and clear processes for addressing violations to ensure that the distinction between displays and advertisements is respected. In conclusion, the clause plays a pivotal role in balancing the rights of retailers to display their products with the necessity of restricting advertising that could promote tobacco and vape usage. We on this side of the Committee—mostly—agree with the clause, and I hope that the Minister will answer some of the queries that we have raised.

[Andrew Gwynne]

I thank hon. Members for their questions. The hon. Member for Farnham and Bordon just referred to my smirk, and it was indeed a text from somebody asking whether we should define “clappers” in our guidance as well.

To return to the substance of the Bill, the Government amendment is minor and technical; there was a drafting error, and the Scottish Government have since requested the amendment to correct it and to ensure the regulations and the law, as it appertains to England, Wales and Northern Ireland, will be the same for Scotland.

On the subject of “specialist tobacconists”, let me first make a point of clarification for the shadow Minister and the hon. Member for Farnham and Bordon. We are not saying there is specialist tobacco—there is no such thing. Tobacco is dangerous and uniquely harmful. Tobacco is tobacco. There is nothing specialist about it. A very small number of retailers around the United Kingdom sell niche products; they are specialist tobacconists. That is different to the tobacco being special. There is nothing special about tobacco. The tiny number of retailers that sell things such as pipes and cigars exist in a limited number of places and there are already exemptions in the law for them. As we move towards smoke-free, the reality of market economics means that those specialist tobacconists are not necessarily likely to be around at some stage in the future.

The impact assessment that the Government have provided alongside the Bill makes it very clear. With the measures in the Bill, by 2050—25 years’ time, that is all—we are looking at smoking prevalence in the under-30s being nearly zero. Given that reality, the Government believe that the current exemptions for that small number of retailers will continue. Due to the specialist nature of their trade—they focus on a small number of other tobacco products, such as cigars—they only make up a tiny proportion of the UK market. We know that all tobacco products are harmful, so the Government will, of course, keep a watchful eye on it to make sure that we do not inadvertently grow a new market but, at this stage, we do not believe that will happen.

Specialist tobacconists are not permitted to advertise cigarettes or hand-rolling tobacco because those are the most commonly used types of tobacco. The existing bans on tobacco advertising therefore relate to the sale of those products, whether in specialist tobacconists or the local supermarket, so we are really talking about the advertising exemption for other products. That is a continuation of the existing exemption, which has not caused any issues such as younger people taking up smoking. Any advertising the retailers have cannot be visible from outside the premises. That is really important so that a child walking past one of these random Hogwarts-looking shops that sell a product of which they are hopefully not aware will not ever be attracted to what goes on inside.

[Dr Johnson]

I am pleased that the Minister is considering how shops look from the outside because, when one walks down the high street at the moment, it is not uncommon to find shops where the entire shop window has been turned into a picture of various types of vapes.

[Andrew Gwynne]

Absolutely—I agree with the hon. Lady that how it looks from the outside does matter. That is why, when these exemptions were put into earlier legislation, it was clear that none of the adverts for these niche products could be visible in the shop window from the outside, precisely to protect future generations from ever being enticed to think, “I wonder what a pipe tastes like, or what a cigar is like,” although I am sure the hon. Member for Windsor could, if he chose, give us an hour-long explanation. That is why the legislation is drafted in the way it is. However—and hopefully the industry is listening to this—the Government will, of course, continue to keep an eye on whether this exemption is working in the way that it has previously worked and that we expect it probably will work in the future. If in the future we have evidence that it is not working, the Government can come back and look at it again. However, as things stand, I commend the clauses to the Committee.

Question put and agreed to.

Clause 120 accordingly ordered to stand part of the Bill.

Clause 121 ordered to stand part of the Bill.

Clause 122

Exclusion for advertisements that are displays

--- Later in debate ---

[The Chair]

With this it will be convenient to consider clause 125 stand part.

[Dr Johnson]

The clauses deal with sponsorship. Clause 124 covers tobacco products, and clause 125 vaping, nicotine and other products. Why do businesses get involved in sponsorship? Basically, as a way of advertising their products and to associate them with whatever sponsors them. They might want to associate their products with Formula 1, because it is seen by many as sexy, as the Minister put it—fast or cool, or a good thing to be associated with. They might want to associate their products with other sports such as football or rugby, because athletes who participate in them are seen as healthy, fit and cool. Businesses are therefore associating their brands, which may not be healthy or cool, with those athletes.

On the clauses, the Government’s own impact assessment talks about linking sports sponsorship to smoking. A UK study found that when cigarettes were advertised in motor racing, boys aged 12 to 13 who liked motor racing were significantly more likely to smoke than boys who were not so interested in that sport. Clearly, such advertising works; if it did not, companies would not spend so much money on it. Sports sponsorships and endorsements are highly effective marketing tools.

--- Later in debate ---

[Dr Johnson]

My hon. Friend is, of course, correct.

On advertising and sponsorship, page 101 of the impact assessment states:

“Sponsorship agreements are a form of indirect advertising”—

I agree—

“and there has recently been growing concern about the existence of agreements which promote vaping and nicotine products. These agreements normalise the products and may make them seem cool, having a potentially negative influence on the usage of the products among children and non-smokers.

For nicotine vapes, Ofcom regulations prohibit sponsorship of news and current affairs programmes, and any sponsorship of programming which promotes nicotine vapes. The Communications Act 2003 also prohibits sponsorship of on-demand programme services or a programme on these services which promote nicotine vapes. However, for broader settings such as sports events and teams, music festivals and cultural events, sponsorship which promotes nicotine vapes is permitted.”

It is good that the Minister, in this clause, seeks to prevent such sponsorship—particularly the sort of sponsorship that targets children.

Subsection (1)(a) of both clauses states that a person is party to an agreement entered into “at any time”. That provision does not appear to differentiate between agreements made before and after the Bill becomes law. I understand that the Minister wants to ensure that there is not a sudden flurry of activity in the commercial world to put sponsorship agreements in place before these regulations come into force—we do not want companies to say, “Well, we are bound by this contract for so many years, Minister. We are stuck now”—but does he intend to apply the clause retroactively? Somebody who saw the Bill when it came before the House in March and April, saw it in its other format, or saw the manifesto commitments of all major parties to this Bill in some form or another, may have entered into such agreements already. I would be interested to hear what plans the Minister has to deal with those circumstances.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

In my previous life, I worked in commercial contracts. The hon. Lady can be reassured that a typical commercial contract would require that any participant to it must adhere to the laws and applicable regulations in any jurisdiction in which the contract is governed. Regardless of the Government’s intention, which I am sure the Minister will talk about, there should be an overarching clause in most standard commercial contracts about adherence to applicable laws and regulations in the jurisdiction to which the contract applies.

[Dr Johnson]

I thank the hon. Gentleman for his contribution. That is another example of why it is important to have a wide spectrum of people on Committees. Of course, that is usually the case, but I am interested to know what the Minister’s intention is with “at any time”. Does he intend it to apply to contracts retrospectively? Presumably he does, but I want to clarify that.

I welcome the constraints on tobacco, vape and nicotine product advertising and sponsorship for this purpose, but I would be grateful if the Minister could answer those questions.

--- Later in debate ---

[Jack Rankin]

I thank the hon. Member for her intervention.

[Dr Johnson]

I just want to add to the point made by the hon. Member for Worthing West about the precautionary principle. One of the differences between tobacco products—for example, cigarettes—and vapes is that tobacco products in the form of cigarettes are relatively more uniform in their component parts than are vapes, and it may take quite a long time to work out which of the chemical components of vapes are harmful, so we do need to be more precautionary with that.

[Jack Rankin]

I thank my hon. Friend for her intervention and I will seek to address both interventions in my further remarks. The point I was making to the Labour party is that a lot of its Members have made the case quite eloquently that things such as fixed odds betting terminals, which are often aimed at working-class communities and in particular young men, are like crack cocaine. That is an incredibly dangerous part of gambling. I think online casinos fit in that higher band of harm. I suggest that in the broad sense of tobacco and gambling, online casinos would be more harmful than, for example, the odd cigar that I have had recreationally—I have already made that point—so I think there is very much an inconsistency here.

Look at the Premier League, for example. Hon. Members know that there are 20 football teams in the Premier League. Aston Villa FC is sponsored by Betano, and Bournemouth FC is sponsored by bj88; Betano is an online casino, and bj88 is an Asian gambling site. Brentford FC is sponsored by Hollywoodbets.

--- Later in debate ---

[Sarah Bool]

I will make two points. First, I understand where my h F the shadow Minister is coming from in terms of the questions about enforceability and when these things come into effect. Clause 124(1)(a) states that for tobacco products:

“A person commits an offence if…the person is party to an agreement (entered into at any time),”

which will obviously be consistent; but clause 125(1)(a) states that a person commits an offence only if

“the person is party to an agreement entered into on or after the day on which this section comes into force”.

I can see the point that the Minister is making. Will we see a rush of sponsorship agreements on vaping coming in in the next few weeks before we get this Bill on the statute book? That is a legitimate question to raise, and we should all be aware of that possibility.

Generally, it is important that we tackle and take on seriously the role of sponsorship. I do not think that I am alone in recalling the impact of Pepsi and its sponsorship of the Spice Girls when I was young. Its campaign aimed at Generation X had 92 million cans with the Spice Girls on them, which obviously had a big impact. I will be honest and say that I loved the Spice Girls, but seeing anything like that has a massive impact when we are children, so tackling it is absolutely right. Pepsi sponsors the National Football League, Coca-Cola sponsors the Olympics and I think Carlsberg has always sponsored Liverpool FC, so we can see that brand alignment.

[Dr Johnson]

I thank my hon. Friend for making the point much more eloquently than I did that there is a difference in the clauses between the days when they come into force. As she is a lawyer who has been involved in contracts, can she confirm that there is no limit to how long someone can enter into a contract? If a contract were entered into in terms of sponsoring vaping or nicotine products before the Bill comes into force, it may last for quite some time.

[Sarah Bool]

That is a possibility. It always depends on the terms of the contract itself, but in theory they could agree a 10 or 15-year contract and sponsorship deal. It is interesting that this could be one of the overhangs that we see, so we have to be aware of it going forward.

[Andrew Gwynne]

The clauses make it an offence for a person to be involved with a sponsorship agreement where the purpose is to promote in the course of business tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products. Anyone convicted of an offence under the provisions may be subject to imprisonment, a fine, or both. Tobacco sponsorship is currently banned under the Tobacco Advertising and Promotion Act 2002. There is a long-standing, well-established relationship between tobacco advertising and tobacco consumption.

Clause 124 restates the current position for a person involved in the sponsorship of a tobacco product. We are consolidating existing tobacco legislation in the Bill to provide a coherent narrative for readers, rather than have it spread over lots of different pieces of legislation. A large part of the Bill brings the legislation into one place, so that from Royal Assent onwards, the go-to place for anybody with any questions about tobacco control will be this piece of legislation, rather than it being dispersed across different Acts of Parliament.

Tobacco sponsorship is already banned, but importantly, the Bill expands the offence to include herbal smoking products, cigarette papers, vaping and nicotine products. The restriction will mean that vaping and other nicotine product companies will, for example, not be permitted to sponsor sports teams, which is something that we have seen in recent years. It might upset the hon. Member for Windsor, but I have to say that not a single child should ever be able to look up at their favourite sports stars—people who should be role models—and see them covered in branding for products that are harmful and addictive. That is the point here.

[Dr Johnson]

Would the Minister like to comment on whether many of the athletes may feel uncomfortable wearing shirts with such branding on?

[Andrew Gwynne]

I am sure that many do. That is another important aspect.

--- Later in debate ---

[Andrew Gwynne]

Well, some of them are—the way Man City have been playing this season, I am not quite sure. Anyway, we will get back on to the Bill as quickly as possible.

The ban will apply to agreements entered into after the clause comes into force, two months after Royal Assent. It will be an offence if a contribution is made from either party after the specified date, which will be set out in future regulations. The ban will apply to any agreements entered into after that date, and will therefore not apply to existing contracts. The reason for the two-month period is to provide businesses with advance warning and to prevent them from entering into new agreements.

The hon. Member for South Northamptonshire asked whether this could create a rush to get sponsorship deals in place within that two-month window. That is a fair question, but I think that is unlikely for a number of reasons. First, sponsorship deals are pretty tricky contracts and it tends to take more than two months to reach contractual agreement. Secondly, even if matters were expedited, most clubs already have their deals in place, and they would not replace something when they already have a contractual arrangement for something else. Were that unlikely scenario to play out, we would be looking at only a small number of cases anyway.

When drawing up the regulations, we will have to be careful to ensure that no new contract can be signed, and certainly not for the kind of time period that the shadow Minister set out. That would be really out of the spirit of this legislation and the Government might have to come back to tighten it up further.

[Dr Johnson]

I have a couple of questions about the rush of people trying to get contracts. First, presumably such a contract would not need to start straight away, so one could enter into a sponsorship agreement for some future period. As the Minister said, the sponsorship agreements are done for this season and being negotiated for the next, but presumably that would not stop a business entering into a contract to provide sponsorship for the next season, or even the season after. When the Government brought in VAT on private school fees—I should declare an interest here—they put in a forestalling measure that prevented anyone from entering into a contract to pay them ahead from, I believe, 28 July last year. They seem to be taking a much more lenient approach to the advertisers and sponsors of vaping and nicotine products than they are to parents wishing to pay for their children’s education.

[Andrew Gwynne]

The hon. Lady raises an interesting point; I will take that away and look at it. Perhaps with the exception of the hon. Member for Windsor, everyone on the Committee agrees that we do not want our footballers, rugby stars or athletes to be emblazoned with adverts for vaping products, so the more we can do to tighten up the legislation further, the better.

I will just politely correct the hon. Member for Windsor that the term for someone from the historic County Palatine—including yourself, Mr Dowd—is a Lancastrian. My late father was the Lancashire cricket correspondent, first for Cricket Call, which was a BT paid-for service, and then for BBC North West. He was there in 1990 when Lancashire won both the NatWest and Benson & Hedges cup finals—the double at Lord’s. I still have copies of my late father’s book, “Double Delight”. I would say that they are available at all good booksellers, but they are available from me if the hon. Gentleman wants one.

The hon. Member for Windsor made an important point. I had just come out of secondary school in 1990, which shows how long ago it was, but it was pretty commonplace for tobacco companies to advertise at major sporting events like Lancashire cricket matches and others. The fact is that that was a long time ago, and things have changed for the better. The Benson & Hedges cup final, in cricket of all games, is a thing of the past. Hopefully, at some stage in the near future, we will look back at vape sponsorship of football clubs as a thing of the past, because that is where it deserves to be.

--- Later in debate ---

[Andrew Gwynne]

My hon. Friend sets out a really important point. I am happy to take that away for officials to look at. We want to ensure that companies that currently sponsor sports kits are no longer able to do so, and that sports clubs that have entered into such contracts are not allowed to extend them beyond the dates of their current existence. His brain is much more legalistic than mine, and we do not want the intention behind the law to be circumvented using legal routes that the best lawyers in the land will probably use to try to find a way around it. I will ask my officials to look at that in more detail, because it is a really important point. I hope he accepts that response.

[Dr Johnson]

I understand the point that the hon. Member for Cardiff West is trying to make about a standard clause being that if a contract breaches the law, the contract falls. In clause 125, however, the Minister appears to be giving a company that promotes vapes by sponsorship an opportunity to enter into a contract, before the legislation comes into force, that would be legal afterwards.

[Andrew Gwynne]

The shadow Minister is right. There will be a narrow window in which that will be possible—[Interruption.] She asks why, and it is because once the Bill receives Royal Assent, it will bring in a two-month window. That is how the law is shaped, to give us the scope to get these measures right and ensure that we make the framework as watertight as my hon. Friend the Member for Cardiff West wants. We believe that that is the proportionate way forward. We cannot make retrospective decisions; if contractual arrangements are under way at Royal Assent, an immediate cut-off could leave the Government open to challenge.

Tobacco and Vapes Bill (Thirteenth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

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

It is a pleasure to serve under your chairmanship this morning, Mr Pritchard.

Clauses 126 and 127 and schedule 16 pertain to audiovisual and radio broadcasting restrictions on tobacco, vapes and the related products that we have been discussing endlessly in this Committee. Although there is a strong argument for the measures from a public health perspective, there may be legitimate concerns regarding freedom of expression and the impact on broadcasters and advertisers —I may be pre-empting points my hon. Friend the Member for Windsor will raise.

One of the most compelling arguments for the clauses is their role in protecting young people from exposure to tobacco and vaping products. Studies have consistently shown that advertising plays a significant role in influencing smoking and vaping initiation. Research from Cancer Research UK indicates that young people who are exposed to tobacco advertising are more likely to start smoking, and similar findings have been observed with vaping products, where targeted marketing strategies have contributed to a rise in e-cigarette use among teenagers.

By restricting tobacco and vape-related advertisements on television, radio and on-demand services, the clauses aim to reduce the normalisation of smoking and vaping. The UK has already seen the benefits of such measures in relation to tobacco: since the implementation of the Tobacco Advertising and Promotion Act 2002, smoking rates have declined significantly. Extending similar restrictions to vaping is the logical next step to ensure that history does not repeat itself, with a new generation becoming dependent on nicotine.

Critics might argue that the clauses may have unintended consequences for broadcasters, advertisers and the creative industries. The sector relies heavily on advertising revenue, and restrictions on tobacco and vaping-related content may limit potential funding sources, particularly for smaller, independent broadcasters, in an already challenging economic environment. However, as we have seen with the existing bans in relation to tobacco, the public health benefits clearly outweigh the potential issues with the funding that broadcasters could get from vape advertisements.

There is a practical consideration about how the clauses are enforced. We must ensure that broadcasters and on-demand services comply with the new restrictions, and that will require regulatory and oversight resources. Perhaps the Minister could give us some idea of how the provision will be enforced, whether that is through Ofcom or some other means. There is also a concern about what I describe as cross-border broadcasting. Many streaming services operate internationally, so content produced abroad but accessible in the UK may not be subject to the same restrictions, and if it is, ensuring compliance with UK regulations on the global platforms will present a significant challenge. How does the Minister intend to enforce the provisions in those cases?

This is a complex issue and a balanced approach is necessary, but as I have said, investing in public health campaigns alongside the regulatory measures could help to ensure that the public receive accurate information about smoking and vaping. I therefore support the clauses.

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

I support the clauses too, although I have a couple of questions. I hope the Minister will be so kind as to answer them.

Clause 126 outlines that part 6 does not apply to independent television or radio services, services provided by the BBC or Sianel Pedwar Cymru, on-demand programme services, or non-UK on-demand programme services that are tier 1 services as defined in the Communications Act 2003. Essentially, they will be covered by Ofcom. Paragraphs (a) and (b) specify exclusions for independent television and radio services regulated by Ofcom, provided they are not classified as additional services. Will the Minister clarify how additional television services and digital additional sound services are defined in practice, and what criteria will be used to classify services at the margins of those categories?

The clause exempts services that are defined as on- demand services under section 368A of the Communications Act from provisions of the Bill. In the rapidly evolving digital media landscape, does the Minister believe that the definition of an on-demand programme service is sufficiently clear to encompass emerging service models? Given the rapid growth of online platform streaming services and the desire he previously expressed to future-proof the bill, does he foresee current exclusions in clause 126 remaining relevant in the future? Should how these platforms, whether UK or non-UK based, are regulated be reconsidered, to ensure they adhere to the same standards as traditional broadcast media in relation to tobacco and vapes while being viewed in the UK? We keep coming to this point—how online services can be used to circumvent measures of the Bill.

[Gregory Stafford]

My hon. Friend makes a good point, raised in a number of our debates, about future-proofing the Bill. There is a big discussion going on about artificial intelligence and how that plays in. I do not know whether my hon. Friend has thought about that, or whether the Minister can clarify how artificial intelligence may be used by the tobacco and vaping industry to get round some of the provisions, and whether the future-proofing is strong enough to deal with that.

[Dr Johnson]

I know my hon. Friend is very interested in AI. I am sure that if it is possible to do so, these industries will use any means available to them to maintain their market.

The clause extends the regulations from tobacco to cover all vaping products, herbal smoking products, cigarette papers and nicotine products. Given my concerns about children and vaping and the use of nicotine, I think this is a sensible measure, which I support.

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

It is a pleasure to serve under your chairmanship, Mr Pritchard. Clauses 126 and 127 and schedule 16 contain provisions relating to audiovisual services and radio broadcasting. Clause 126 provides that part 6, which deals with advertising and sponsorship, does not apply to certain categories of television and radio service. That is because these services are already prohibited under the Communications Act 2003.

Clause 127 introduces schedule 16, which amends the Communications Act 2003. The amendments extend provisions in that Act that ban advertising and sponsorship of tobacco products in certain TV and radio services to include herbal smoking products, cigarette papers, vaping products or nicotine products. That ensures that the advertising ban on tobacco in television, radio and on-demand programme services is extended to all of those products. In practice, the measure means we will no longer see banned products or promotional material for those products on any of those mediums.

The shadow Minister rightly points out that the services listed in the clause include ITV, independent television and radio, the BBC and Sianel Pedwar Cymru, and on-demand programme services—that covers the points that Members have made—and non-UK on-demand programme services, which are tier 1 services as defined in the Communications Act 2003. I hope that reassures the hon. Member for Farnham and Bordon that it also includes programmes produced and aired outside the United Kingdom that are brought into the United Kingdom.

As a helpful aide-mémoire for the Committee, the Communications Act 2003 regulates telecommunications broadcasting. It confers functions on the Office of Communications, a regulator, to oversee the services. The Act puts in place effective rules for the advertising of tobacco on television, radio and on-demand services. By amending the Act, we ensure that this existing framework also applies to vaping products, nicotine products, and cigarette and herbal smoking papers. There is no need to reinvent the wheel and add more to the Bill, as we can use the existing provisions in the 2003 Act. I therefore commend the clauses to the Committee.

Question put and agreed to.

Clause 126 accordingly ordered to stand part of the Bill.

Clause 127 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 128 ordered to stand part of the Bill.

Clause 129

Enforcement authorities

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

[The Chair]

With this it will be convenient to consider clauses 130 and 131 stand part.

[Dr Johnson]

The clause outlines the responsibilities and jurisdictions of enforcement authorities tasked with ensuring compliance with part 6, which covers advertising and sponsorship. Subsection (1) establishes that the enforcement authorities are legally bound to enforce the provisions of the Bill, and subsection (2) contains the definition of an “enforcement authority”. All that sounds very straightforward and sensible, but my question is about funding. If the weights and measures authorities are given an obligation to enforce something but not given the resources to enforce it, they are being given a legal obligation with which they have not got the resources to comply.

Paragraphs 613 and 614 of the impact assessment state that the average trading standards service, of which there are 197, has 9.4 full-time equivalent professionally qualified staff. It is assumed that all those staff would need to be familiarised with the policies and all the various regulations once they are passed through Parliament. We have talked about the amount of regulations that will be created under the Bill; staff will need to be trained in all that. In 2024, the cost of such training was estimated at £23,137, but given that the Bill will not come into force until later—we are in 2025 now—that is a moot point. How much does the Minister think training will cost once all the regulations are up and running? Clause after clause of the Bill provides for regulations to be made, which may be done in one go or several, repeating the need for training.

The impact assessment also talks about the cost of training for the Advertising Standards Authority, estimating it to be £1,945. If it costs that to train all the staff from the ASA on a given topic, it suggests the rest of the public sector’s training could definitely be made more efficient. I suggest that the Minister has a chat with the Chancellor about it—I believe she is looking for ways to make the country more efficient, which she has done so far by making businesses not exist—as it seems a little out of kilter, although I was not sure whether it was a dot or a comma. The impact assessment also measures what it believes Ofcom would need to enforce the training under the new measures. It estimates £3,500 for the staff there, but again, does the Minister think that is realistic?

Clause 130 is about the power of Ministers to take over enforcement functions in a specific case. We have talked at some length in previous debates about the potential for abuse of power in such measures. Clause 131, similarly, is about the power of Ministers to take over proceedings as part of the enforcement functions in respect of a specific case. Again, while I can understand the Minister’s desire to be able to take over from a weights and measures authority as a whole if there were to be a problem with the way it was functioning in a specific case, can he give assurances that there would not be any abuse of power in that respect?

[Andrew Gwynne]

I thank the shadow Minister for her questions. The Government are investing over £100 million over five years to boost His Majesty’s Revenue and Customs and Border Force’s enforcement capability to tackle illicit tobacco. In 2025-26 we will invest £30 million of new funding for enforcement agencies, including trading standards, Border Force and HMRC, to tackle illicit and under-age sales of tobacco and vapes, supporting them to implement the Bill.

Decisions on funding for trading standards in future years will be made as part of the spending review process, but given our clear commitment to enforcement in the Bill and the fact that we have put down the payment of £30 million for enforcement in the next financial year, I hope hon. Members are assured that we take these matters seriously. We are investing £3 million over two years specifically to enhance the work led by National Trading Standards to tackle under-age and illicit vape sales. That work is carried out through enhancing market surveillance and enforcement action on ports, online sales enforcement, and boosting the storage and disposal of illicit vapes. The new funding for 2025-26 will build on this work to tackle under-age and illicit vape sales.

The shadow Minister asked how trading standards will use their additional enforcement funding. The crucial point is that we want to boost trading standards’ capacity, to enable the services to conduct more under-age sales test purchases, remove illicit products from the market and identify non-compliant products and bring them into compliance where possible.

[Dr Johnson]

My question was not simply how trading standards will use the money allocated, but whether the Minister feels that the money he has allocated is adequately purposed?

[Andrew Gwynne]

I do, which I have just said. The £30 million in the next financial year to boost the enforcement agencies will meet the needs that the Bill sets out. It is also about boots on the ground and having greater capacity. We will be working with trading standards on this additional enforcement funding to ensure that they increase their capacity and are able to take on the roles and responsibilities that the Bill places on them. We will continue to discuss with trading standards how we can best support them in respect of the measures of the Bill. I commend the measures to the Committee.

Question put and agreed to.

Clause 129 accordingly ordered to stand part of the Bill.

Clauses 130 to 132 ordered to stand part of the Bill.

Clause 133

Power to extend Part 6 and Communications Act 2003 to other products

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

[Dr Johnson]

Clause 133 gives the Secretary of State the power to extend part 6, which deals with advertising and sponsorship, and the Communications Act 2003 to other products, specifically products that are devices of a specified description enabling a tobacco product to be consumed, such as a heated tobacco device or pipe, or an item that is intended to form part of such a device. It allows the Secretary of State to consult with the required persons and gain consent where required with the devolved legislatures. However, how will the Secretary of State further define that, and can the Minister give us some examples of the types of products that might be included under the power? Could it allow for the expansion of regulation to a wide range of products not originally envisaged in the Bill?

The inclusion of devices and items potentially covers a wide array of consumer products without any clear boundary. What are the specific criteria or considerations that the Secretary of State must use when deciding whether to extend the provisions? Could that lead to arbitrary or inconsistent decision making, depending on the political or public health priorities of the Government of the day? The wording seems to give considerable latitude, but not much clarity on when or how the Secretary of State should exercise the power.

[Andrew Gwynne]

I am very happy to answer the question posed by the shadow Minister. It is a simple answer: we need clause 133 to avoid loopholes. Otherwise, newer products such as heated tobacco—and those products that have not even been developed yet—are in scope of the restrictions, but devices used alongside them could still be used to promote tobacco consumption.

Question put and agreed to.

Clause 133 accordingly ordered to stand part of the Bill.

Clauses 134 and 135 ordered to stand part of the Bill.

Clause 136

Addition of smoke-free places in England

--- Later in debate ---

[The Chair]

I remind Members that we are at this point talking about amendments, so any comments should be restricted to those amendments. We can talk about the generalities of the clause later in the debate. It is always helpful to have a reminder of that—for myself as well.

[Dr Johnson]

I thank the hon. Member for Dartford for clearly laying out what he seeks to do. I understand that his desire to see a healthy population is driving his good intentions behind this amendment, but I have some concerns. We are creating an offence of smoking in specific places: that requires buy-in from the public, because we police with consent, and the public need that knowledge. I visit Newcastle a reasonable amount, and I did not know that there was a rule banning smoking on park benches. I do not smoke, so it did not apply to me in any case, but it is conceivable that others are not aware that Newcastle has local rules.

I am concerned about the consistency of such measures and about people’s awareness of where it is possible to do something; otherwise, we will create criminal offences and fine people large amounts of money for doing something they had no reason to prevent themselves from doing because they had no way of knowing. The Government are also in the midst of reorganising —or trying to reorganise—all the local authorities; if local authorities are going to make such decisions and then be reorganised, that could further add to complexity and confusion for the public.

For people who smoke, we want to limit the harms to their health and ensure they have the opportunity to quit or to minimise those harms. Not everybody has a garden or outside space of their own. If they live in a flat and are a smoker, only being able to smoke in that flat because all the outside spaces are gone will increase the dangers to them, for health and for other reasons. My personal opinion is that these laws, or at least the principle of which spaces may and may not count, should be made nationally—even if there is some local guidance to be followed.

That is why we will come to the principle of which sort of spaces, because at the moment it is any space. It is conceivable therefore that, under the hon. Gentleman’s amendment, a group of local councils could decide to make all outdoor spaces of all kinds smoke-free. While I would find that desirable as a non-smoker, it would not be good for the overall health of the 11% of people who do smoke.

[Gregory Stafford]

Looking at the amendments, I can see why the hon. Member for Dartford wants to do this. There clearly could be public health benefits and, as a localist myself, I am naturally sympathetic to having local decisions made as close to people as possible. I think the point I made during the intervention stands, however: the potential for confusion among people who are potentially not from the area, or who are from the area but do not understand the local byelaws, probably makes the amendments unworkable.

My hon. Friend the shadow Minister and the hon. Member for Dartford mentioned that smoking prevalence is higher in places of social deprivation. The hon. Member seemed to be suggesting it would therefore be better to enforce regulations, or byelaws for regulations, in those areas. I can see the public health impact, but we must not ghettoise people who are from lower socio-economic backgrounds and who are more likely to smoke, as seen in the evidence. The shadow Minister makes a good point that people who do not have outside space, and who may have children and not want to smoke and vape in their properties because they are rightly worrying about their children’s health, will find that difficult if there are local byelaws in place that prevent it. I think that is especially true with women who smoke.

--- Later in debate ---

[Sarah Bool (South Northamptonshire) (Con)]

Taking on board what you said, Mr Pritchard, I just want to build on the point that my hon. Friend made about enforcement—I always talk about enforcement in practice. I want to know how rules will be advertised between different jurisdictions. I think we will end up spending an inordinate amount of money on trying to run a campaign that could have been better spent on helping with smoking cessation or on more practical measures.

[Dr Johnson]

My hon. Friend is talking about the enforcement and practicalities of such a move. If we have a national campaign and national uniformity about the areas in which one can and cannot smoke, that will be quite straightforward for people to understand and there will be no real excuses for breaking the rules. If the advertising has to be done locally, it will have to be continuous to reach all the visitors and tourists who come to that town or city.

[Sarah Bool]

I absolutely agree, and my hon. Friend makes a powerful point. I would like us to consider this issue when we look at whether to take these proposals any further. I cannot see how we can ensure in practice that everyone knows what is happening without there being a national campaign.

[Sarah Bool]

I thank the hon. Member for clarifying that point. Many Members would prefer that local councils were dealing with potholes rather than advertising those different spaces, but I thank him for his amendment and his proposal.

[Dr Johnson]

Amendment 14 defines a local authority as

“a county council…a district council, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, a combined authority or a combined country authority.”

By the time we get to next summer, Lincolnshire will probably have district councils, a county council and a mayoral authority—I do not agree with having a mayoral authority, because I think that is too many tiers of government, but that is an aside. What if those authorities do not agree? If we give them all the power to make regulations, they could all make different regulations based on different opinions—as is currently the case in Lincolnshire, the various authorities are not always under the control of the same political party.

[Andrew Gwynne]

I am grateful to my hon. Friend the Member for Dartford for bringing this issue before the Committee. As we have heard, amendment 11 would introduce a power for local authorities to make byelaws relating to the designation of additional smoke-free places in England, which would sit alongside the Secretary of State’s power to make regulations in the same regard.

As we know, the Bill expands the Secretary of State’s powers to create additional smoke-free places at the national level. In England, the Government have already indicated that we intend to extend the smoke-free designation to outdoor places including children’s playgrounds and outside schools and hospitals, but not to outdoor hospitality settings or wider open spaces such as beaches. The reforms we are setting out in the Bill will be subject to full consultation, and we want to hear the views of people from across the country to ensure that we get them right.

As drafted, the Bill gives no additional powers to local authorities. However, they have existing mechanisms for designating certain spaces as smoke-free. As we have heard, areas such as Manchester, my home city, have already used pavement licensing provisions to ensure that people have smoke-free options when they consume food and drink in certain locations, and that works well. Some local authorities have implemented public space protection orders to prohibit smoking in certain areas. For example, the London borough of Enfield has used a public spaces protection order to restrict smoking within the boundaries of children’s playgrounds. Of course, that will be obsolete should the consultation for the national scheme extend to children’s playgrounds, as we intend it to.

[Dr Caroline Johnson]

I thank the Minister for making those interesting points. Can he clarify whether powers such as those enacted in Enfield create a criminal offence?

[Andrew Gwynne]

We want to ensure that people who are smokers are not criminalised. Public space protection orders do potentially go down the criminal route. We want to ensure that that is not the case, which is why the Enfield scheme would of course be obsolete under the later provisions—which we are going to discuss today, hopefully—in relation to extending national outdoor smoke-free places.

--- Later in debate ---

[Andrew Gwynne]

I suspect we are straying off the measures before us, Mr Pritchard, but I assure the hon. Gentleman that consultation is a statutory duty in this Bill. Were the Secretary of State, or indeed Welsh, Northern Irish or Scottish Ministers, to seek to change the scope in the future, they would have a duty at every stage to consult further. I hope that reassures the hon. Gentleman.

I was talking about Enfield and its public spaces protection orders. It is of course for the local authority to determine whether a PSPO is appropriate and that the legal test for implementing a PSPO is met, along with completion of the relevant consultation requirements. Nottingham has created a voluntary smoke-free zone at events, especially those where children are present, and it introduced a smoke-free play park policy in 2015. Other local authorities, such as Oxfordshire county council, have introduced voluntary smoke-free school gates policies. Given the options already available to local authorities and the national reforms introduced through this Bill, which we will debate further, neither the Government nor I think it is necessary to grant these byelaw-making powers via the Bill.

In answer to a point that the shadow Minister raised, which I hope to answer for my hon. Friend the Member for Dartford, legislation sets out all the different types of local authority. Enforcement in terms of the requirement to police any changes would appertain to the particular local authority, because it would be on that local authority’s land that the measures would apply. For example, in a two-tier area, if the county council as the highways authority deemed that pavement licensing were to be introduced, it would be for the county council to enforce its own measures; if a district council brought in measures in a park for which it was responsible, it would be for the district council. I think that is quite a simple explanation.

I understand that we have a complex jigsaw of local government, but it is for the particular type of council or authority that introduces a measure to enforce it. For example, the pavement licence in the City of Manchester is for the City of Manchester to enforce—not Andy Burnham as the Mayor of Greater Manchester, or indeed the Greater Manchester combined authority. That is pretty simple.

[Dr Johnson]

My question was not so much about the enforcement, which is defined in the Bill as the local weights and measures authority. Amendment 11 says that a local authority may make byelaws. The local authority that may make these byelaws includes the whole range of county councils, district councils and combined authorities, implying that, whoever is enforcing it, those that could make a byelaw could overlap and have contrary views.

[Andrew Gwynne]

Obviously, if a local authority introduces byelaws, as the City of Manchester has done in respect of pavement licensing, it is for that local authority to ensure that those byelaws are adhered to. Of course, in that case, the weights and measures authority is the City of Manchester, so I suppose that makes it easier.

These powers are already being used. Local authorities are already designating areas, whether it is for pavement licences, public space protection orders or just deeming that land within their own responsibility is smoke-free. We do not believe that the amendments are necessary. I kindly ask my hon. Friend the Member for Dartford to withdraw them.

--- Later in debate ---

[Dr Johnson]

I shall speak to amendments 95 and 94, which stand in my name. Amendment 95 is similar to the amendment moved by the hon. Member for Dartford a few minutes ago. Members will remember that earlier in the summer the Labour Government suggested that they would include hospitality venues within the scope of outside spaces, which led to pushback from a number of sources, mostly the hospitality industry. Speaking to Sky News on 5 November, the Secretary of State said that it was

“a leak of a Government discussion”,

but that it had promoted

“a really good debate about whether or not it would be proportionate”.

He then said:

“I think people know that the UK hospitality industry has taken a battering in recent years—”.

I agree with the Secretary of State on that. Covid-19 certainly challenged the hospitality industry. The previous Government supported it through business loans, reduced taxation and furlough schemes. Now, just as the industry is getting back on its feet, this Government have battered hospitality providers by raising national insurance contributions, increasing the minimum wage for young people, increasing business rates, introducing the deposit return scheme, and nearly doubling business rates for small businesses. They are indeed taking a battering; we can agree on that. In that Sky News interview, the Secretary of State also said:

“we do not want to add to their pressures, so we are not proposing to go ahead with an outdoor hospitality ban at this time”.

That was in November, but does he still mean it now? How will we know?

The challenge of this clause is trust. The Prime Minister has talked about trust. Before the general election, the current Secretary of State for Environment, Food and Rural Affairs said, at the Country Land and Business Association conference, that Labour had no intention of changing the rules on agricultural property relief—but they have. The Government’s manifesto said that they would not increase national insurance on working people —but they have. On 11 June, Rachel Reeves told the Financial Times that she had no plans to increase capital gains tax—but she did. Labour said that it would not make changes to pensioner benefits, but then removed the winter fuel allowance. So there is no trusting that this Government will do what they say they are going to do and not do what they explicitly say they will not. I hope the Minister understands my reasoning.

It is interesting that the Liberal Democrats have a similar amendment to the Conservative amendment on this topic. As I said before, people need some form of open space and not everyone has a garden. There is some confusion about hospitality venues. For example, some pubs have a kids’ play area; will that be treated as a play area within the scope of the regulations, or will it be a hospitality area? Under the current statement, the Secretary of State will not include play areas, but the powers under the clause, which we will come to as a whole, give wide scope for the Minister and the Secretary of State to designate virtually anywhere as smoke-free, with criminal sanction for those smoking or vaping. The Minister and the Secretary of State have said that their only intention is to use these policies for NHS properties, hospital buildings, children’s play areas and education facilities. This being the case, I cannot see why the Minister would not be happy to have that on the face of the Bill. It is the stated intent. I am sure the Government will understand my point about trust.

There are a few minor differences between the Liberal Democrat amendment 4 and the Conservative amendment, mainly in that the Conservative amendment includes nurseries and the Liberal Democrat amendment defines play areas and playgrounds, as opposed to simply playgrounds. These are relatively small differences other than the addition of nurseries, which is beneficial that is where the smallest children are. Clearly smoking in a nursery school is an antisocial behaviour, so it would make sense for them to be included.

Amendment 94 states that:

“The Secretary of State may designate a place or description of place under this section only if in the Secretary of State's opinion there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke.”

The Health Act 2006 states that the Secretary of State has to be clear, in his own mind, that there is a risk of high levels of smoke if he is going to ban smoking, so it is a measure of proportionality. Smoking in an outdoor space, miles from anywhere with nobody about, exposes no one but the smoker, making it slightly safer to smoke outside than inside for both the smoker and the people around them.

Why did the Minister choose to remove the “significant smoke” measure from the legislation? Does he feel that there is no significant amount of smoke to be inhaled by somebody who is in an outdoor space with somebody else? What is the chief medical officer’s advice on the amount of smoke that is likely to be inhaled by someone in an outdoor space alongside or nearby someone who is smoking? I understand that there will be a duration issue—how long the person is sat there, how long the smoker is smoking for and how many cigarettes they have, how close the person is and how windy it is—but will the Minister explain why he chose to remove that measure?

[Gregory Stafford]

I agree with my hon. Friend the shadow Minister. It seems strange that the Government want to have such wide-ranging powers in this area. Unlike other parts of the Bill, where technologies and such may move on and where I appreciate the need to future-proof, here it is very clear. I do not think that at some point in the future we will believe that smoking in playgrounds, or smoking in a field with nobody else around, are better or worse than they are now.

I have a lot of sympathy for the Liberal Democrats’ amendment 4 and our amendment 95. As my hon. Friend pointed out, the amendments are relatively similar, if not word for word the same. It almost takes us back to coalition days in 2010—let us hope that does not happen too often—and shows that His Majesty’s Official Opposition and the Liberal Democrats have significant concerns. While the Minister and his colleagues have said that they will not extend a smoking and vapes ban to hospitality venues, there is a lack of trust on our part, because even if it is not in the current Minister or Secretary of State’s mind, a future Secretary of State may be minded to put such a ban in place. That is why the amendments tightly define exactly where the smoke-free areas could be.

It is obvious that we do not want people smoking in children’s playgrounds, nurseries, schools or higher education premises. We have had some debate about this on other clauses, but I personally believe that we should not be smoking in NHS properties either. None the less, to return to a point I made previously, if we are going to permit people to do something within the law—people born before 1 January 2009 if we are talking about smoking and everybody over the age of 18 if we are talking about vaping—they must have somewhere safe to be able to do it.

The point of the clause is to address the impact of smoking and vaping on others. I take the shadow Minister’s point that clearly, if someone is smoking in a playground, it will have a greater impact on other people than if they are standing in the middle of a park or field with nobody else around. There needs to be an element of proportionality. As the shadow Minister and the hon. Member for Winchester said, we do not want to do anything that could harm our already stretched hospitality industry, which is under extreme pressure. If the Minister or Secretary of State were minded to start imposing bans in hospitality, that would have a significant impact on the hospitality business. I support the two amendments.

--- Later in debate ---

[Gregory Stafford]

I thank the hon. Lady for her clarification. I have great respect for her public health abilities and knowledge. I accept the points that she made, but Opposition Members feel that including in the Bill areas that will potentially be consulted on being smoke-free is proportionate to ensure that there is not overreach. I know that if the amendments are accepted and, at a future point, attitudes and science change, she will be a doughty campaigner to have the law changed, and I am sure that she will achieve it, if that is the way she wants to go.

[Dr Johnson]

In response to what my hon. Friend and the hon. Lady the Member for Worthing West are saying, as a doctor, I have a lot of sympathy with her position. Certainly, if I take my children out for a meal in a restaurant and we sit outside in the summer, having a lovely day in the beer garden, and along comes a family or another group of people who sit and smoke, I dislike that. Whether it should be made illegal is a different matter, but it is something that I do not like.

As my hon. Friend said, there is a balance between enabling someone to do something that we have decided will be legal—that is, someone who is born in the right timeframe to be able to smoke—and giving them somewhere safe to do so. Over time, I suspect the measures that the Bill as a whole grants will lead to a reduction in smoking, which, of course, is its intention. As smoking becomes less prevalent, it is likely that smoking in front of children, particularly in outside hospitality spaces or in other places, will become less socially acceptable. We saw hospitality bring in non-smoking areas in the past.

The hon. Member for Winchester talked about having two different beer gardens in the same pub, one for smoking and one without. It is within the capacity of any given hospitality business to choose, as smoking becomes a minority and antisocial pastime, not to allow it within their facility, and to police that by throwing people out. It is also possible for individuals to choose not to attend a beer garden of a pub where smoking is allowed. To some extent, therefore, the ability of people to choose and vote with their feet, and the desire of the market and hospitality industries to maintain their custom, will surely have some effect on this over time.

--- Later in debate ---

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I rise to speak to amendments 4, 95 and 94; as they are very similar, my comments will apply in the generality. It is disappointing to hear the shadow Minister’s cynicism about the commitments made by the Minister at the Dispatch Box.

[Dr Johnson]

I was merely giving examples.

[Mr Barros-Curtis]

She may well have given a few examples—I can think of a litany of examples from the previous 14 years of Tory Government. However, that would stray from the amendments, and as we do not have the time, I will not indulge the Committee with that. But I would suggest that that cynicism is not merited because, as the Minister and his colleagues in the Department of Health and Social Care have shown in these sittings—

--- Later in debate ---

[Andrew Gwynne]

I can speak only for England, but I am legislating for the United Kingdom with the permission of Health Ministers. It may well be that Health Ministers in other parts of the United Kingdom decide not to consult at all. In Wales, for example, they already have the coverage of all the areas that we are going to consult on in England.

The hon. Member for Farnham and Bordon says he is now even more worried. Well, I tell him this: worry not, because his amendment relates to England only. If he is so mithered about the rights of the Welsh to consult Welsh business on Welsh matters, he should have put Wales in his amendment. If he so bothered about the rights of the Scots to consult on Scottish matters with Scottish business, he should have put Scotland in his amendment. If he is so bothered about the rights of the Northern Irish to consult Northern Irish business about Northern Irish matters, he should have put Northern Ireland on the face of his amendment. He doth protest too much, Mr Pritchard!

The hon. Gentleman has actually made my case for why these measures are proportionate: they cover the whole of the United Kingdom and it will be down to Ministers in the respective parts of the United Kingdom to decide who they will consult, why they will consult and what areas they will consult on. But as far as England is concerned, I cannot be any clearer: hospitality is out of the scope of our consultation. We will consult on three things: hospitals, schools and play areas.

[Dr Caroline Johnson]

I thank the Minister for giving way, although I would point out that it was not my hon. Friend the Member for Farnham and Bordon’s amendment at all.

[Andrew Gwynne]

But he supported it.

[Dr Johnson]

He is supporting it, but the Minister asked why my hon. Friend did not include things in it. The answer is that he did not write it. The amendments were written by others, one by the Liberal Democrats, and supported by him, which is not the same thing.

The Minister will no doubt have caused concern for the people in hospitality industries in Wales, Northern Ireland and Scotland who are following proceedings today. Could he tell the Committee a bit about the discussions he has had with his counterparts? Have any of them indicated to him their intent regarding hospitality areas in their designated parts of the United Kingdom?

[Andrew Gwynne]

I certainly can. I have had umpteen conversations with Health Ministers from across the United Kingdom, and none of them has indicated to me that they intend to extend this to hospitality. But the point is that, as Ministers in their own legal jurisdictions, it for them to decide who they are going to consult and on what basis they are going to consult. In terms of the powers in this Bill, which areas they want to extend—if any—is a matter for them. It is not a matter for me or for this Parliament.

We are merely legislating to give those Health Ministers the tools; if they wish to go beyond the scope that the English Ministers are setting out, it is their right to do so. That is the devolution settlement. But they will, of course, have the statutory duty to consult, and they will, of course—I would imagine—want to work with businesses, in Northern Ireland, in Wales, or in Scotland, to make sure that whatever measures they bring forward are right and workable, just as we would in the Department of Health and Social Care, should we decide, at some stage in the future, to go further again.

[Dr Johnson]

I doubt whether the Minister has provided a huge amount of reassurance to the hospitality sectors in those jurisdictions.

I want to pick up on a point made by the hon. Member for Cardiff West in his intervention about prisons. As far as I can tell, closed prisons are smoke-free environments—that is already the case both inside and outside—but I understand that prisoners in closed prisons are allowed to vape, including in their cells, where they may be vaping near other prisoners who may not wish them to have that choice. We are depriving people of their liberty for good reason when sending them to prison, but we should not be exposing them to chemical vapour as part of that if they are not vapers themselves.

Could the Minister talk to us about the discussions he has had with Justice Ministers about how provision is made for the public health of those currently in prison?

[Andrew Gwynne]

I am grateful to the shadow Minister, who is now making my case perfectly for why we need to have the regulations as we do. It may well be that, at some stage in the future, a Public Health Minister, or indeed the Secretary of State, having had conversations with and guidance from the Ministry of Justice, seeks to quickly and simply extend provisions within the prison estate. Were the hon. Lady’s amendments to pass, the ability to do that would not be in the Bill.

We have had conversations with Ministers across Government. This Bill has been subject to the usual write-around, so it has the collective support of the Ministry of Justice. The details of which areas would be in or out of the scope of different measures within the Bill will be a matter for the regulations and for consultation. With that, the shadow Minister has precisely made the case for why having things prescriptively in the Bill ties the hands of Ministers.

[Dr Johnson]

The Minister is suggesting that to be able to restrict access to these products in prisons, he needs to have a wide scope within clause 136. Given that prisons are already smoke-free areas, that surely cannot be the case.

[Andrew Gwynne]

No, but the point the hon. Lady is making is about what conversations Ministers have had with other Ministers to extend the scope, to protect the rights of others and so on. It is precisely for that reason that the Bill is drafted as it is. At some stage in the future, a Government Minister in another Department may well decide that they want to extend the scope, using the powers we are talking about. Under her amendment, we would then have to find a slot in primary legislation to amend a piece of primary legislation. That is precisely why her amendments are unworkable.

The mechanism in place would allow a consultation on an extension; following consultation, secondary legislation would be debated as part of the affirmative process—there would be a debate, a discussion, and a vote in Parliament. That is precisely why the amendments are unworkable, and I call on the Committee to resist them.

I move on to the removal of the test in the Health Act 2006. That is to enable the Secretary of State to more easily make regulations designating outdoor spaces as smoke-free, but only where such a space is a workplace or open to the public. Reinserting the test would conflict with our intention to extend smoke-free status to places I have mentioned—for example, children’s playgrounds probably do not meet the requirement of there being significant risk of significant quantities of smoke. However, making them smoke-free would almost certainly protect some of the most vulnerable.

Since 2006, the evidence base for harms of second-hand smoking has evolved. It is therefore necessary to update the current legislation, as clause 136 does, to provide more flexibility should the Government wish to designate additional smoke-free places in future.

[Dr Johnson]

The Minister is making a reasonable point. However, the evidence can change on what constitutes a significant amount of smoke—in the past, people may have believed that someone had to be smoking in order to come to harm and then that someone could also come to harm in an enclosed indoor environment with someone smoking. It may be that the evidence now shows that even being in proximity to someone smoking outdoors—the fact that you can smell it means you are breathing it in—means you are coming to harm on some level. But does the amendment not account for that with the word “significant”? Amendment 94 says:

“if in the Secretary of State’s opinion there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke.”

A significant quantity of smoke may in the past have been considered to be quite a high volume, but now might be a much lower volume. The flexibility the Minister is seeking is already provided for in the amendment.

[Andrew Gwynne]

The shadow Minister would probably have a large degree of sympathy—at least one of her Back Benchers less so—with our updating the Health Act 2006 to allow us to take action to make more places smoke-free. We think that is right. We now have the ambition to make the whole United Kingdom smoke-free, and this is part of that effort.

--- Later in debate ---

It is really important to recognise that, if we are serious about our ambition to make the United Kingdom smoke-free, we must have that flexibility. Tying the hands of Ministers—whether in England only, as is the shadow Minister’s intention, or across the United Kingdom—would run counter to our desire to be able to act with some degree of speed, should the evidence or public demand be there in future, or to extend the scope. Those are discussions for the future. We are clear that we will consult on three areas, and hospitality is not one of them.

[Dr Johnson]

The Minister is being generous with his time. He knows my thoughts on smoking and vaping, particularly in relation to children, and how important I think creating a smoke-free and nicotine-free generation is—although he does not share the second part. He is talking about how the Secretary of State needs to be able to move with the evidence. I completely and utterly agree with that, but the clause says that there is a significant risk that without designation, persons present will be exposed to significant quantities of smoke.

I support the addition of the smoke-free legislation for spaces like playgrounds. If a playground were to be included, the Secretary of State could quite easily justify that by saying that even seeing someone smoking would encourage children to smoke, particularly if it is their parents, and that therefore it is a sensible action to take.

The words—drafted, I believe by the Minister’s predecessors—are “exposure to significant quantities”. “Exposure” does not necessarily mean breathing it in; children could be seeing it across the playground. “Significant quantities” does not necessarily mean a quantity enough to do them harm. If they cannot see it, they are not being exposed to it and it is not doing them harm, why would we want to stop it happening?

[Andrew Gwynne]

The point is that that is open to interpretation; that now runs counter to our ambition to have a smoke-free United Kingdom. We have put in place a much more flexible and workable measure. The measure from 2006 was right for 2006, but it is not right for 2027, when we hope to introduce the Bill. That is why we are looking to the measures in the Bill rather than the measures as they stood in 2006.

Lastly, I remind the shadow Minister that her amendments apply only to the clause in the Bill that relates to England. If we agreed to them, the powers in England would not be consistent with the powers in the rest of the devolved jurisdictions across the United Kingdom. This is a UK-wide Bill that provides a consistent legislative framework for the whole of the United Kingdom—all four nations—while allowing devolved nations to go further on subsequent regulations if they so wish. For these reasons, I ask hon. Members to withdraw their amendments.

--- Later in debate ---

[Jim Dickson]

I thank the hon. Member for those comments; I will do my best to answer them. Compliance with the measure is still not where we would like it to be: the last survey undertaken by an independent company on behalf of Action on Smoking and Health indicates that 9% of 11 to 15-year-olds say that

“they travel in a car with someone smoking some days, most days or every day in 2024.”

The current law also does not protect those with clinical vulnerabilities. The smoke-free powers in this Bill are driven by a desire to protect people with clinical vulnerabilities from second-hand smoke. That includes pregnant women and those with asthma and lung conditions, among others. No smoker wants to harm their family, friends, pets or co-workers, so no smoker should smoke in an enclosed vehicle.

The evidence is clear: concentrations of smoke in vehicles where someone is smoking are greater than in any other small, enclosed space. If we are to be led by the evidence when extending smoke-free places, we have to consider vehicles. That would provide consistency in policy and raise awareness of the harms of second-hand smoke even further than they currently extend. It would be easier to enforce than the current law, where we have to check who else is in the vehicle, and would make the regulations on vehicles simpler and easier to understand—“It’s a straightforward ban; you can’t do it.” Finally, it is worth pointing out that it is supported by the public, with 67% of British adults saying they are in favour of an outright ban on smoking in vehicles.

[Dr Johnson]

I thank the hon. Gentleman for his clear explanation of what he wishes to achieve. I have great sympathy with it, because nobody wants to see people making their health worse by smoking in a car. However, his statistics are quite interesting. He said that 9% of children find themselves on a regular basis in a car where someone is smoking, yet the Minister has said already this morning that 11% of people smoke. Given that not all of the 11% of people who smoke have children with whom they travel in a car, that implies that the measure is pretty badly enforced and badly adhered to at the moment. He might argue that a complete ban in all vehicles would make it more uniform and easier to enforce, but I am not sure that that is the case.

I will be interested to hear from the Minister when he responds to the amendment whether he has any information or statistics on the number of prosecutions that have occurred under the current legislation. I support the legislation that prevents someone from smoking in a car with children, and I would support an extension of that to include vaping and other nicotine products. I would also support a ban on people smoking while driving; if someone is holding a lit cigarette in their hand, that will have an impact on their ability to manoeuvre the car, particularly in an emergency situation.

Essentially the hon. Member is proposing to say to someone in a parked-up vehicle, perhaps in someone’s drive, “Although you are in a private space, you are not able to smoke.” I understand what he said about no smoker wanting to hurt someone—I am sure that is true—but I cannot imagine that there is any adult smoker that does not realise that smoking in a car with children is bad for the children. I find it very difficult to believe that that would be the case. I invite him to consider whether he is trying to prevent what is a legal activity—even under this Bill, if someone is the right age—in a private space that is theirs and theirs alone?

[Gregory Stafford]

My comments follow on the shadow Minister’s. My understanding of amendment 10 is that, even if the occupant of the vehicle is entirely alone in their private vehicle, the hon. Member for Dartford is seeking to ban them from smoking in that vehicle. We are in danger here of overreaching on what we need to do to achieve a smoke-free generation.

--- Later in debate ---

[Gregory Stafford]

I accept that point, but I do not think my hon. Friend the Member for Windsor’s point was that the police do not currently have powers to stop people who are driving dangerously. I completely accept that they should stop people using their mobile phones or doing things that constitute dangerous driving. The shadow Minister gave the view that smoking a cigarette could be counted as driving without due care and attention or dangerous driving, so that may be a way of enforcing it. However, I think that having the police stop someone simply smoking in their own vehicle—something that is legal in every other private location—when they are over the legal age required in the Bill and they are not harming anybody else, is an overreach.

[Dr Johnson]

The key difference between a mobile phone and a cigarette is that with mobile phones, it is the driver using a mobile phone while driving that is the problem. If one is pulled over in a parking space in one’s private car, one can use one’s mobile phone to one’s heart’s content, and likewise when one is parked in one’s drive. If one wants to sit in one’s car on one’s drive and use a mobile phone, provided the car is stationary, that is also a legal thing to do. What the hon. Member for Dartford is suggesting is not that someone is unable to smoke while driving, which would be quite a sensible measure, but that if one’s car is stationary and private and one is essentially alone in an enclosed space like one’s home, one still would not be allowed to smoke, which seems a little odd.

[Gregory Stafford]

I completely agree with the shadow Minister. I have two final points. Proposed new subsection (1B) makes reference to the meaning of an enclosed vehicle. I just want to clarify what that means. The amendment says:

“which may include vehicles which are partially enclosed or enclosed (or capable of being enclosed) for some but not all of the time.”

Is the amendment trying to capture convertible cars—someone driving with the top down on a sunny day?

Tobacco and Vapes Bill (Fourteenth sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Jim Dickson (Dartford) (Lab)]

Once again, the Minister has made convincing arguments for why now may not be the right time for this amendment to become legislation and be adopted. However, I think that within the next decade or so this measure is likely to become law one way or another, so for the moment I am content not to press it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 84, in clause 136, page 77, line 33, at end insert—

“(3A) In section 7 (Offence of smoking in smoke-free place)—

(a) in subsection (6), at end insert ‘, save if it is a first offence.’

(b) after subsection (6) insert—

‘(6A) 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.’

(3B) In section 8 (Offence of failing to prevent smoking in smoke-free place)—

(a) in subsection (7), at end insert ‘, save if it is a first offence.’

(b) after subsection (7) insert—

‘(7A) 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 prevents penalties for a first offence under sections 136 (pertaining to smoke-free area restrictions in England) being beyond a fine of level 3 and provides for a discretionary caution.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 85, in clause 142, page 85, line 29, at end insert—

“(ya) in section 1 (Offence of permitting others to smoke in no-smoking premises)—

(i) in subsection (4), at end insert ‘, save if it is a first offence.’

(ii) after subsection (4) 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 recorded police warning.’

(za) in section (2) (Offence of smoking in no-smoking premises)—

(i) in subsection (3), at end insert ‘, save if it is a first offence.’

(ii) after subsection (3) 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 recorded police warning.’”

This amendment prevents penalties for a first offence under sections 142 (pertaining to smoke-free area restrictions in Scotland) being beyond level 3 and provides for a discretionary caution.

Amendment 97, in clause 147, page 93, line 13, at end of line insert—

“(1A) In the Welsh language text of section 5 (Y drosedd o ysmygu mewn mangre ddi-fwg neu gerbyd di-fwg), at end of subsection (6) insert ‘, arbed os trosedd cyntaf ydyw.’

(1B) In the Welsh language text of section 5 (Y drosedd o ysmygu mewn mangre ddi-fwg neu gerbyd di-fwg), after subsection (6) insert—

‘(6A) Mae person sydd wedi cyfaddef ei fod yn euog o drosedd gyntaf o dan yr adran hon ynagored i rybuddiad.’

(1C) In the English language text of section 5 (Offence of smoking in smoke-free premises or vehicle), at end of subsection (6) insert ‘, save if it is a first offence.’

(1D) In the English language text of section 5 (Offence of smoking in smoke-free premises or vehicle), after subsection (6) insert—

‘(6A) Mae person sydd wedi cyfaddef ei fod yn euog o drosedd gyntaf o dan yr adran hon yn agored i rybuddiad.’

(1E) In the Welsh language text of section 6 (Y drosedd o fethu ag atal ysmygu mewn mangre ddi-fwg), at end of subsection (9) insert ‘, arbed os trosedd cyntaf ydyw.’

(1F) In the Welsh language text of section 6 (Y drosedd o fethu ag atal ysmygu mewn mangre ddi-fwg), after subsection (9) insert—

‘(9A) A person who has admitted guilt of a first offence under this section is liable to a caution.’

(1G) In the English language text of section 6 (Offence of smoking in smoke-free premises or vehicle), at end of subsection (9) insert ‘, save if it is a first offence.’

(1H) In the English language text of section 6 (Offence of smoking in smoke-free premises or vehicle), after subsection (9) insert—

‘(9A) A person who has admitted guilt of a first offence under this section is liable to a caution.’”

This amendment prevents penalties for a first offences pertaining to smoke-free area restrictions in Wales being a fine or imprisonment and makes provision for the penalty for a first offence pertaining to smoke-free area restrictions to be a cautionary warning.

Amendment 86, in clause 153, page 109, line 9, at end insert—

“(3A) In Article 8 (Offence of smoking in smoke-free place)—

(a) in subsection (5), at end insert ‘, save if it is a first offence.’

(b) after subsection (5) insert—

‘(5A) 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.’

(3B) In Article 9 (Offence of failing to prevent smoking in smoke-free place)—

(a) subsection (6), after ‘scale’ insert ‘, save if it is a first offence.

(b) after subsection (6) insert—

‘(6A) 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 prevents penalties for a first offence under sections 153 (pertaining to smoke-free area restrictions in Northern Ireland) being beyond level 3 and provides for a conditional caution.

[Dr Johnson]

This group of amendments comes back to the principle of proportionality, because there is not complete coherence between the different penalties across the United Kingdom and on the different offences that can be committed under the Bill.

The first part of amendment 84 would ensure that if someone admits guilt of a first offence of smoking in a smoke-free place, they should be liable to a fine not exceeding level 3, which is £1,000 on the standard scale, or a caution. That is a lot of money for lighting up in the wrong place, so it seems reasonable.

The second part of amendment 84 relates to the offence of failing to prevent smoking in a smoke-free place, which is where somebody who is in charge of an area or building fails to prevent people from smoking there. Again, we are asking the Minister to consider the proportionality of the penalty if this has not happened before, compared with a repeat offender, who we would want to throw the book at, metaphorically speaking.

Amendment 85 relates to Scotland. Amendment 97 relates to Wales and is partly in Welsh, and amendment 86 relates to Northern Ireland. Again, we are asking the Minister to consider whether the penalties are proportionate to the offence committed and whether the legislation gives due flexibility and enough guidance for someone committing an offence for the first time, perhaps inadvertently, to be treated differently from someone who is repeatedly flouting the law.

[Andrew Gwynne]

I am grateful to the shadow Minister for her comments. I have a sense of déjà vu, given that we have already debated ad nauseam her desire to weaken the enforcement regime and the penalties.

[Dr Johnson]

That’s not true!

[Andrew Gwynne]

The hon. Lady says that is not true, so maybe it is not quite ad nauseam, but we have covered an awful lot of ground on these arguments.

[Dr Johnson]

I do not seek to weaken the Bill or its enforcement. I wish to see the Bill be successful in stopping people smoking and vaping, particularly our young people, and I wish to see people who are repeatedly flouting the law in this way treated appropriately. However, I am keen to understand whether the Minister feels there is enough flexibility to deal with offenders appropriately, particularly if it is an inadvertent first offence.

[Andrew Gwynne]

We will have to agree to disagree, because I think anything that brings in lesser penalties than those that already exist in tobacco control, and I will resist that as I resisted the shadow Minister’s earlier temptations to be more lenient to certain people.

These amendments would change the penalty regime for the offence of smoking in a smoke-free place in England, Scotland, Wales and Northern Ireland and the offence of failing to prevent smoking in a smoke-free place.

[Dr Johnson]

Does the Minister accept that a fixed penalty notice of £200 is actually a more lenient penalty than a fine of £1,000 or a caution, which incurs a criminal offence?

[Andrew Gwynne]

I will come on to those points in due course to explain to the Committee why I think the shadow Minister is wrong in this regard and why she was wrong in all previous discussions about weakening the penalty system for first-time offenders. The amendments would create an exception to the maximum penalty that a person can face for committing one of these offences, if it is the person’s first-time offence. It would establish that someone who admits to committing either 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 instead to a caution in England and Northern Ireland, or a recorded police warning in Scotland.

For the offence of smoking in a smoke-free place, that is two levels higher than the level of fine someone is liable to under the current legislation, which is level 1 or £200 in England, and it is the same as the current level of fine in Scotland and Northern Ireland. For the offence of failing to prevent smoking, the new maximum fine would be one level lower, which is level 3 or £1,000, than the level of the fine that someone liable to under the current legislation, which is level 4 or £2,500, in all three nations. In Wales, amendment 97 would remove a fine altogether and someone who admits to committing either offence for the first time would be liable to a caution.

While I appreciate the shadow Minister’s intention in seeking to alter the penalty regime for first-time offenders, amendment 84 is not appropriate. We do not want to create a penalty regime for the offence of smoking in a smoke-free place that has the potential to be stricter for first-time offenders than for repeat offenders. This amendment would see first-time offenders face a maximum fine of £1,000 on conviction, while repeat offenders would face a maximum fine of £200 on conviction in England. That is not consistent with our approach to the enforcement of tobacco and vape legislation, where enforcement action can be escalated such that repeat offences may lead to harsher penalties. For example, repeated age-of-sale offences can result in a restricted premises order.

We also do not want to weaken the existing penalty regime for tobacco and vape offences, including the offence of failing to prevent smoking in a smoke-free place, by creating exceptions for first-time offenders. Tobacco and vape offences must be taken seriously, and it is important that existing consequences are not weakened for first-time offenders or for anyone who has committed these offences. It is therefore not appropriate to lower the maximum possible fine that an offender who has failed to prevent smoking in a smoke-free place for the first time may face. It is for those reasons that I ask the shadow Minister to withdraw her amendment.

[Dr Johnson]

I am grateful to the Minister for outlining his thoughts on the matter, and I do not want to see the Bill weakened in this regard. As such, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[The Chair]

With this it will be convenient to discuss the following:

Clause 142 stand part.

Clauses 147 and 148 stand part.

Clause 153 stand part.

--- Later in debate ---

The clauses mean that the devolved Governments will have equivalent powers to make additional smoke-free places. I therefore commend the clauses to the Committee.

[Dr Johnson]

I thank the Minister for setting out what the clauses do, which is, essentially, to provide for smoke-free places in England.

Clause 136 introduces changes to the Health Act 2006, and specifically updates provisions regarding smoke-free places in England to allow for the addition of smoke-free areas beyond those already designated under existing law. It empowers the Secretary of State to extend smoke-free regulations to more places—and, I would argue, to essentially any place—with the aim of reducing exposure to second-hand smoke and promoting public health.

Although it clearly is the Government’s intention to use these powers to improve public health, they are very wide-ranging. As far as I can see, the clauses give the Secretary of State carte blanche to extend the smoke-free legislation to any place without needing a reason, because the Government did not accept our amendment that it should only apply to places that have a significant risk of actually having any smoke. I understand that the measures allow for greater flexibility, but I would be interested in the Minister’s reasons for the wide-ranging scope.

The Minister has said that he wants to focus on three areas: hospitals, children’s playgrounds and educational settings, and I believe that that is his intention. Unfortunately, over time, that may not be the intention of the rest of his Government, which is a risk for the Committee in allowing these measures to stand.

The Welsh have banned smoking on hospital sites. We heard in our evidence that compliance regarding playgrounds has been very good but that compliance around hospitals has been relatively poor. Does the Minister have any figures to add to that evidence about compliance in Wales? That could be the number of people who have been prosecuted or convicted of such an offence, or surveys from hospital trust leaders on the prevalence in their site, accepting that not all people will necessarily be caught or prosecuted. If we are to be successful, it is not simply enough to write laws in Westminster; there has to be a practical application in the real world. Has the Minister had any conversations with his Welsh counterparts on the perceived reasons why the law on hospitals in Wales has been followed less well than it has been in other areas, so that we can understand why?

The Bill states in proposed new section 4(2) of the Health Act 2006—this is interesting terminology—that if

“the place is used as a place of work or open to the public only some of the time the regulations must provide for it to be smoke-free only when so used.”

That means that if a place is used for the public only some of the time, it can only be a smoke-free place during the time that it is in use. That could lead to a whole queue of people standing outside a hospital. If it were, say, a community diagnostic centre, so it is not open around the clock, or a GP practice, we could have people smoking outside just as people arrive for work in the morning and as the first patients arrive, which would be somewhat counterproductive to the aims of the Bill.

I wonder whether the word “must” would be better off as “should” or “could”, or perhaps we could allow leeway either side for hospitals or schools that are open from a set time. If a school opens at 8.45 am for the children to arrive, when is it officially open and when can people be expected to stop smoking outside it? It seems to me that the risk for children is that people are smoking as they arrive at school, and some children may arrive just before it opens. I remember standing outside the school with my son, waiting for the doors to open before I went to work. This particular question is important. It is sensible that if somewhere is closed and private most of the time, it would not have to be smoke-free except when it is open. However, some thought needs to be given to the detail of that and how it would apply in practice to places that are insufficiently open.

The regulations can also be tailored to different situations. The Bill states that the smoke-free designations can be applied to certain “places or vehicles”, in specific circumstances at particular times or if certain conditions are met. That flexibility ensures that the regulations can address a variety of scenarios and settings, including potentially temporary or conditional restrictions based on factors such as the type of location or event. The regulations also have the option to include exceptions, such as allowing areas within designated smoke-free places to be designated as non-smoke-free, based on the discretion of the person responsible for the area. That would potentially undermine the principle of the Bill, so I would be interested to hear more about that.

Before implementing any new regulations to designate additional smoke-free places, the Secretary of State “must consult” relevant individuals or groups, which again seems sensible. I would appreciate clarification from the Minister on the definition outlined in proposed new section (4)(1), which allows the Secretary of State to designate “any place in England” as smoke-free if it meets the criteria of being “a workplace” or “open to the public”. But “any place” is very broad and could be interpreted to include beaches or open-air public festivals. Does the Minister intend to include other places open to the public within the remit of this legislation, such as public woodlands or national parks? Has he spoken to his counterparts in Scotland about the areas that are subject to the right to roam, and therefore open to the public to some extent? That includes, for example, public footpaths and rights of way through farmland. Could the very remotest piece of land in the United Kingdom be designated smoke-free and subject to legal repercussions thereof, if it were also open to the public?

I want to ask whether the enforcement of such broad measures would be feasible. If every public space, regardless of size, location or usage, was subject to a smoking ban, would it be realistic for local authorities or enforcement officers to monitor compliance across such vast and varied spaces?

In the modern day and with the change in working practices since covid, what counts as a workplace? In the age of working from home, can private homes count as workplaces? If a man sits down with his computer to work on a park bench, as is sometimes done, is that a workplace? If someone is working in an open area on the beach—we have heard that some people apparently do—does that make it a workplace? Does that place alternate between being smoke-free and non-smoke-free, depending on whether the man is typing away on his computer, or whether he is having a little break for a cup of tea?

Our hypothetical al fresco worker could be hashing out his latest policy report, but he could also be having a little break to play solitaire or chess. Would that count as working or slacking? Would that then be a workplace or not? Would the police officer attending the scene have to check that the man is working before issuing a fine to nearby smokers? I suppose playing computer chess could count as work if the man were a professional chess player—perhaps he is. How would the offending smoker or the police officer know what the person near them is doing?

These are somewhat colourful hypotheticals, but I hope I have demonstrated that the clause does throw up a great deal of colourful hypotheticals. For the sake of the Bill’s integrity, I would appreciate clarity from the Minister on the terms used in the clause.

Furthermore, I would appreciate clarification on how we designate the physical borders of a smoke-free area. With three children, I have been to a fair number of playgrounds. Some playgrounds have physical barriers around them, often some sort of knee-high fencing, making it easy to say where the physical borders of the playground are. But some do not—some are play areas within a park where there is no clear boundary between where the play equipment is and the rest of the park. Does that make the rest of the park a playground or not, and where would the edges be?

Given the seriousness of the offence and the significance of the penalties, the Government should ensure that reasonable steps are taken so that people know when they are violating the law. In this case, will physical markers need to be built around every smoke-free area to ensure that smokers know exactly when they enter one? I can think of many village playgrounds local to me where there is no such marking. Has the Minister considered the cost of providing barriers or markings to ensure that people know where the boundary is?

The nature of second-hand smoke throws up another issue. The Minister well knows that the smoker need not be physically present in the smoke-free area for the effects of second-hand smoke to be felt in one. How does the clause propose to seek to address that scenario? If a park is designated smoke-free, and is or is not barriered, but someone is sat there smoking, watching her children play—she wants to be reasonably close to them so she can keep an eye on them, protect them and keep them safe—would she be violating the smoke-free area if her cigarette smoke wafts beyond the bounds of the park? What if the wind blows the other way? Would that then be legal? Are the mother’s actions based entirely on which way the wind happens to blow?

The principle behind the clause is very sensible: smoking is dangerous, passive smoking is a danger to others, and people—particularly children—should not be forced to breathe in other people’s smoke. But the enforcement of this clause requires it to be made very clear what people should and should not do, and where they should and should not do it. I am not entirely sure that the clause is clear enough on that.

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

Like the shadow Minister, I agree with the essential thrust of clause 136, notwithstanding the amendments that I voted for earlier, but there is a clear problem with second-hand smoke. We have seen in studies from Public Health England and the World Health Organisation that even brief exposure to second-hand smoke can increase the risk of respiratory diseases, heart disease, and lung cancer—particularly among vulnerable populations such as children and the elderly, as the Minister outlined.

However, we have to understand that there are clearly differences in how much smoke could be inhaled, depending on the setting. Where air circulation dissipates smoke, such as outside, the risks are probably not as pronounced as they are indoors. Although I do not dispute—I do not think anyone does—the dangers of second-hand smoke in enclosed spaces, the question remains whether outdoor areas such as parks and public squares should be subject to the same restrictions.

--- Later in debate ---

[Andrew Gwynne]

My hon. Friend, who has done so much work in this area over such a long period of time, is absolutely right. I will come to some of the enforcement arguments. Our primary aim is to tackle passive second-hand smoking, but it is important that smoking is not so obviously prevalent in areas where children are present —for example, around children’s playgrounds and outside schools. It is not just that the issue of second-hand passive smoking is important—although it is—it is about the clear statement that smoking around children really should be something for the history books. That is why we have removed the public health test from the 2006 Act. Children’s playgrounds probably would not fall within the scope of that test, but it is a clear priority of the Government to remove the prevalence of smoking around children.

[Dr Johnson]

I thank the hon. Member for City of Durham for her excellent point; I agree entirely with her that we need to ensure that children are not exposed to cigarettes. Could the Minister clarify a couple of points on that basis? First, the edges of playgrounds have been difficult to define—when is the playground the park and when is the park the playground? If it is his intention that children do not see smoking and that that de-normalises the behaviour, which seems a noble aim, would that mean that if someone was within sight of the playground, they would not be able to smoke? Secondly, lots of hospitality venues have playgrounds within them. In fact, one attraction of some pubs that people take children to is that the children will be entertained, while the food is being cooked, by a play area. Will those play areas within hospitality venues be covered by these measures?

[Andrew Gwynne]

I refer the shadow Minister to the answer I gave some moments ago. These are all matters of detail that will be subject to consultation. We will have the arguments as to the definition of a children’s play area—whether it includes children’s playgrounds in hospitality settings or whether it is just in relation to playgrounds in housing estates and parks—and how the edges are defined. These are all matters for consultation and detail, before we get to the secondary legislation.

I want to challenge some of what the hon. Member for Farnham and Bordon said. To be fair to him, he rightly agrees that second-hand smoke is dangerous, but he makes the case that in outdoor settings it is potentially less dangerous than it is in enclosed settings. That was the view of the chief medical officer: clearly, if someone is indoors, in a constrained area, the prevalence of the toxicity that they are taking in as a second-hand smoker is much greater than it is outdoors—but even outdoors, if someone can smell it, they are breathing it in and it poses a risk to their health. The chief medical officers were really clear on this point: there is no safe level of exposure to smoke. That is particularly important for children, pregnant women and people with pre-existing health conditions such as asthma and heart disease, which may not be visible to the smoker.

A really interesting statistic that the English chief medical officer told the Committee was that at this moment in time, in January 2025, there are more people with clinical vulnerabilities in this country than there are smokers. That is really important when we talk about the balance of rights and responsibilities. The fact that there are now many more people with hidden clinical vulnerabilities than there are smokers shows, I think, where the balance needs to be.

[Dr Johnson]

The Minister is making a very powerful argument that smoking outside also poses a danger to the health of the nearby public. On that basis, if I were taking an older relative—with chronic obstructive pulmonary disease, perhaps—to a beer garden, I would be reluctant to sit outside in the summer in case someone sat down and smoked near her. Is the Minister not making an argument for including hospitality, on the basis that people who are outside in the beer garden are vulnerable to dangerous smoke?

[Andrew Gwynne]

People sitting in a beer garden where smoking is prevalent are breathing in second-hand smoke, but as the chief medical officers reminded the Committee, there is a balance here, and the United Kingdom Government of which I am a member have decided that that balance is appropriate in order to protect the hospitality business. That is why Ministers—myself, the Secretary of State and the Prime Minister—have made it very clear that outdoor hospitality will not fall within the scope of the consultation that we intend to bring forward like the clappers. That is our view and it is what we will do. That is not to say that there is a risk that is mitigated for somebody sitting outside. There is a risk, and we cannot mitigate that risk, but it is the balance that the Government have come to. There have to be trade-offs and, given the precarious nature of the hospitality business, we have decided that we will not consult to extend the outdoor smoking provisions to hospitality. I know that that disappoints the shadow Minister—it probably delights other Members on the Opposition Benches—but that is where this Government are.

The powers in the Bill allow for a change at some stage in the future, when it may well be that the balance has shifted and people no longer desire there to be smoking outdoors in hospitality settings. The hospitality trade may say, “This is such a minority pursuit that it is putting off good people from coming to my restaurant.”

[Andrew Gwynne]

The point I am making is that industry collectively may come to Ministers and say, “You know what? This carve-out that we’ve been given is no longer needed.” Ministers may well then come to the conclusion that, given that most of these hospitality businesses at some stage in the future are already imposing outdoor smoking bans because that is where their customer base is, we should bring the law into line with that and make it illegal. The provisions are written in the way that they are so that at some stage in the future, when things change, we can change the law, but right now, as I have said on umpteen occasions, we will consult on outside hospitals, outside schools and public children’s play areas, and that is it.

[Dr Johnson]

Can the Minister clarify a point? There seems to be a contradiction in my mind, but perhaps I have not understood him correctly. On the one hand, he is being very clear in stating that hospitality will not be included and that children’s play areas will—that seems very clear. Hospitality venues, however, do include children’s play areas. When I asked him about this before, he seemed to say that children’s play areas in hospitality would have to be part of the consultation. If children’s play areas within hospitality are included, then aspects of hospitality are included, are they not?

[Andrew Gwynne]

That is why it will be down to the consultation as to what precise details we will bring forward. It is not our intention to include hospitality settings, but the hon. Member has rightly raised that some pubs and restaurants have children’s playgrounds. As part of the consultation exercise, we will have to work out how a children’s play area is defined for the purposes of these measures, so that there is absolute clarity on what constitutes a children’s playground. These are not matters for now; they are matters for when Ministers seek to bring forward proposals. We will have that debate then.

[Andrew Gwynne]

Well, I hope that I will be a Minister for a very long time, both at the Department of Health and Social Care and with this public health brief, which I absolutely love. I will follow the evidence as and when it appears, but it is not my intention to bring forward changes any time soon. The reason that we are discussing changes now is that the last time that places were designated for a smoking ban was in 2006, and a lot of things have changed since that law came into force in 2007.

It may well be that, in a similar length of time into the future, things have changed sufficiently that the arguments we are having today on hospitality have become obsolete, and that the law needs to be brought into line with the facts on the ground. I hope that I can reassure the hon. Member for Farnham and Bordon—I am a man of my word—that it is not my intention, nor the intention of this Government to include the hospitality industry, but at some stage in the future, if things change, it may well be that Ministers do come back to the House on this. I cannot judge how long or short that time period may be, but I politely remind him and other Members of the length of time between 2006-07—when these issues were last being debated—and now, and hope that that gives him some reassurance.

The hon. Gentleman said that I have not been emphatic enough on beaches, woodlands, public parks, rights of way and public squares; these are all scenarios that are subject to consultation at some stage in the distant future. It is not our intention to cover these areas in England. I have been very clear about the three areas that we seek to extend smoke-free places to.

[Dr Caroline Johnson]

I remain a bit confused. On the one hand, the Minister has been very clear: no consultation on hospitality areas. On the other, he has been clear that consultation will occur on play areas. Fair enough. He then said that play areas in hospitality will be discussed as part of the consultation. In that case, how can he be discussing play areas in hospitality but not be discussing hospitality? I am completely confused by that.

[Andrew Gwynne]

Maybe I was not clear enough for the shadow Minister. We are seeking to bring children’s play areas into the scope of the Bill, and, as we have said, we will consult on restricting smoking around children’s play areas. How we define children’s play areas will be a matter for the consultation.

The hon. Lady has rightly raised a reasonable point that some pubs and restaurants have children’s play areas within them. The Government will have to come to a view, in advance of any future consultation, as to whether that would be included in the definition of children’s play areas—but those are debates for the future, not for now.

We have been clear that smoking will still be permitted in outdoor settings for hospitality. It may well be that there is a smoking facility in the beer garden and it is smoke-free around the children’s play area. That is a matter for a future consultation, but we are not going to bring outdoor hospitality settings into the scope of the smoke-free consultation. If anybody is a smoker today and wishes to sit in a beer garden, and that licensed establishment allows smoking—a growing number of pubs and restaurants are already making their outdoor settings smoke-free because that is where their customer base is—smoking will still be allowed. That will not be part of the scope of future consultation. I cannot be any clearer on that.

--- Later in debate ---

[Andrew Gwynne]

The clause relates to an existing regulation-making power in the Health Act 2006 that allows for the Secretary of State to make regulations that permit performers in England to smoke during a performance. The exemption would enable the creation of defences to the offences of smoking in smoke-free places and of failing to prevent smoking in a smoke-free place. It would be available only where smoking is justified to preserve the artistic integrity of a performance.

The creative industry is a significant part of the UK economy, and we have to balance a range of priorities while protecting the most vulnerable and ensuring that businesses are not financially impacted. The Bill aims to protect those who are most vulnerable to second-hand smoke, and we are of the view that the relative harm from the exemption is low. Without the exemption, it would not be possible for a film or TV show that is made in England to include an actor smoking, regardless of how of how integral that might be. The provision updates an existing power in the 2006 Act, so an exemption to allow performers to smoke during a performance is not new. I commend the clause to the Committee.

[Dr Johnson]

The Minister is right to say that the clause recasts an existing regulation-making power in section 3(5) of the Health Act 2006, whereby the Secretary of State may make regulations that allow performers to smoke during a performance

“if the artistic integrity of the performance makes it appropriate”,

and is allowed, on that basis, to create a defence to the offences of smoking in a smoke-free place and of failing to prevent smoking in a smoke-free place.

The act of smoking in film, theatre and other forms of art can be a character-defining gesture that speaks volumes about the person’s identity or emotional state, or about the period in history they represent—think of images of Clint Eastwood, John Wayne, Humphrey Bogart and James Dean. It can also establish the period in which a person lived. It was commonplace for virtually everyone to smoke in the 1940s and 1950s, and the smoke swirling around characters became as much a part of their onscreen presence as their dialogue or expressions. Although smoking in real life is certainly not cool, and comes with myriad negative health implications, its role in art and culture can deepen the portrayal of certain iconic figures and their stories.

The Minister says that the exemption has been part of law for a long time, and that it has worked. There are essentially two ways in which a performance can mimic smoking. The first is to have a fake cigarette, six of which can be bought on Amazon for less than a tenner. They look a bit like a cigarette and an actor can hold them, but they do not have any smoke coming from them. My understanding is that currently the most common prop cigarettes used by actors are cigarettes that contain no nicotine and no tobacco but some herbal items. They produce smoke but are less harmful than a cigarette because they do not contain tobacco, and less addictive because they do not contain nicotine.

The Bill provides for tobacco products to be banned for certain generations of people, and adds herbal smoking products to that ban. Could that inadvertently lead to individual actors and actresses smoking tobacco rather than the less harmful alternative, particularly if there is a price differential between the two? Has the Minister considered how the law will apply to actors and actresses who are born on or after 1 January 2009? Will there be an exemption from the other aspects of the Bill, either allowing them to buy the cigarettes themselves or allowing someone to give them cigarettes as a proxy sale, which would currently be banned under the first part of the Bill? At present, actors may be above the age of 18, but the Bill is intended to be future-proof, so if we roll forwards 15 years or so, when younger actors will be banned from smoking and buying cigarette papers and the like, how does the Minister envisage it working in practice?

Freedom of expression is essential to the arts, but the laws and practices that protect and nurture free expression are often poorly understood by practitioners and those who enforce the law. The question is, then: what is a performer? Section 3(8) of the Health Act 2006 states that “performance” can include

“the performance of a play, or a performance given in connection with the making of a film or television programme, and…if the regulations so provide, include a rehearsal.”

That seems a rather narrow definition of performance. Performance art can cross disciplines such as dance on the stage or on the street. If we go to the south bank, just opposite this House, we can see performers performing solo activities on the weekend. Contract law for those engaged in paid work offers some recognition and potential protection for performance-related work, defines it and outlines the conditions of the performance—it is indeed the performer and not other members of the performance who are included.

To create another hypothetical situation, suppose there is an interactive performance in which the performer on stage requires mass audience participation for their act and suggests that the people in the crowd have to join in with them. Would the artistic integrity of the performance trump the laws that prohibit smoking? The line between performer and audience can be blurred, so if an audience member were invited up on the stage by the performer, would they be allowed to try a cigarette or vape? Proposed new section 7(3) of the Health Act 2006 does not suggest that the performance needs to take place on stage or even in the theatre; some occur outside hospitality venues, as we have discussed.

To give a colourful example, imagine there is a performance called “Smokers”, taking place in a pub in, say, Sleaford, in my constituency. It features performers smoking and chatting in a pub. It is quite an experimental, interactive performance, and the members of the audience —in other words, regular pubgoers—can take part in the performance and light up a cigarette themselves should they wish to. Technically, does this scenario not fall within the remit of the law? We have to bear in mind that the tobacco industry is creative in looking for loopholes. Smoking is required in order to preserve the artistic integrity of this alleged performance. Will the Minister provide clarification on this point? Although my examples may sound inventive, the tobacco industry does come up with inventive ways of circumventing the legislation.

My other point relates to performers who are born after 1 January 2009 smoking or vaping on stage. We need some clarity on that.

[Sarah Bool (South Northamptonshire) (Con)]

To follow on from what the shadow Minister said, the Minister said that performers who smoke during performances would not be a problem because the second-hand passive smoking would not be big enough of an issue. But why can a cigarette be smoked as part of a performance, yet a cigar cannot be smoked once a year by a single person? Why is smoking allowed for this artistic purpose, yet it is not allowed for someone who would like to smoke a cigar recreationally?

[Andrew Gwynne]

This is an existing power, in the Health Act 2006, that we have retained in the Bill at the request of the creative industries in England. I reiterate what I said in opening the debate: the exemption will be available only where smoking is justified to preserve the artistic integrity of a particular performance, so smoking would not be allowed in the hypothetical situations we have heard about. The provision is intended solely to allow the artistic integrity of a performance to be retained.

The shadow Minister asked whether the provision would merely encourage actors to smoke tobacco. Of course, that is not the case. Herbal smoking products are covered under “smoke-free” as well, so they are treated the same.

[Dr Johnson]

With respect to the Minister, the point was that they are treated the same. My understanding is that, because of the rules around tobacco, actors who are non-smokers are more likely to use a non-tobacco herbal product that does not contain nicotine. Given the Minister’s previous comments about tobacco being more harmful, why not make the exemption specific to products that do not contain tobacco and nicotine?

[Andrew Gwynne]

We are following the request of industry. This is an existing power in the 2006 Act and it is to be used only in the exceptional circumstances in which cigarettes or indeed herbal smoking products are appropriate for the authenticity of the performance. That is exactly what the law is now.

I agree with the shadow Minister that it is not cool to smoke. I may have mentioned in previous sittings that I have been successful in getting not one but four stories in LADbible. One of them made precisely the point that the shadow Minister made: that smoking is not cool and it is not glamorous. It is a dirty, stinking, horrible habit that kills two thirds of people who start it. That is why we are committed to a smoke-free generation.

I suspect that this exemption for the creative industries, which is pre-existing, may become obsolete at some point in the near future, not least because I would imagine that as more and more actors themselves are brought up smoke-free as a consequence of the measures we are introducing, actors will eventually point-blank refuse to smoke a cigarette, whether it adds creative authenticity or not.

As I have said, this is a follow-on from an exemption that was previously granted in the Health Act 2006, which is why I seek the Committee’s permission to retain it in the Bill.

[Dr Johnson]

I understand that the Minister is saying this is what the industry is asking for and that it existed before. However, as a result of the change in regulations, people who act as if they are smokers in a video or film are currently able to smoke herbal cigarettes that are designed as prop cigarettes and do not contain tobacco or nicotine. Although it may not be terribly good for their health for them to do so, those cigarettes do not contain the tobacco that kills two thirds of its users, and they do not contain nicotine either. In providing the exemption for the creative industries, will the Minister at least consider providing an exemption for the least harmful version of what will appear to the audience as a cigarette and cigarette smoke, so that we can protect actors as much as possible?

[Andrew Gwynne]

I am open to taking that suggestion away and having a look it, but at this stage it is our intention merely to copy and paste the existing exemption that applies for the creative industries in England, which is what the clause does.

Question put and agreed to.

Clause 137 accordingly ordered to stand part of the Bill.

Clause 138

No-smoking signs in England

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

[The Chair]

With this it will be convenient to discuss clauses 143, 149 and 154 stand part.

[Dr Johnson]

Clause 138 relates to no-smoking signs in England and amends section 6 of the Health Act 2006, setting out that whoever occupies or manages no-smoking premises must ensure that the relevant no-smoking signs are displayed in or near the premises—which is, of course, very sensible.

We talked earlier about the importance of people understanding what the law is and where they can and cannot smoke. The clause allows the Secretary of State to make regulations further to the no-smoking signs. That is sensible for outdoor spaces, but does the Minister have information on how the regulations will define the size and edges of those spaces, and on the cost to industry and local councils of providing signage?

[Andrew Gwynne]

I thank the hon. Lady for that point. The exact requirements of the position of the signs for smoke-free locations will be set out in regulations, but we will ensure that they are required to be in a prominent position near the smoke-free place.

The other matters that the hon. Lady raises relate to questions that we will need to consult on and work through in regulation—for example, who will be required to provide the signs and whether it will be down to public bodies such as NHS trusts and local authorities. All the costs, including any requirements to put up signs and their exact locations, will be considered as part of any future impact assessment of the policy. I commend the clauses to the Committee.

--- Later in debate ---

[Andrew Gwynne]

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to vape-free places across the four nations. They will allow the Secretary of State in England, the Scottish Ministers in Scotland, the Welsh Ministers in Wales and the Department of Health in Northern Ireland to designate certain places and vehicles as vape-free, but only where they are already smoke-free. They also provide that appropriate signs must be displayed in or near the vape-free locations, and they give the power to set requirements in respect of those signs.

Although vapes are less harmful than smoking, they are not harm-free. There are legitimate concerns regarding the unknown long-term harms of vaping. Vapes produce aerosol that exposes people to nicotine and potentially to other toxicants. This poses health risks to children and vulnerable people in particular, for example the risk of triggering an asthma attack. It is important and right that the Government act to protect more vulnerable groups from potential health harms.

Many businesses and enclosed public places already voluntarily have schemes in place to prohibit vape use in their premises. We want clearer legislative requirements so that it will be easier for the public to understand where vapes can be used and for enforcement agencies to enforce accordingly. The clauses will therefore give the relevant Ministers and the Department of Health in Northern Ireland powers to restrict the use of vapes in areas, but only those areas already designated as smoke-free. Those could include spaces such as indoor pub areas, public libraries or buses.

In addition to making it an offence to vape in a vape-free place, the clauses will place duties on persons who control or manage vape-free places—that can include drivers of vape-free vehicles—to ensure that their premises or vehicle remains vape-free. In Scotland, the obligation is to not knowingly permit another to use a vape in a vape-free place; in England, Wales and Northern Ireland the obligation is to cause someone who is vaping in a vape-free place to stop using the vape. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

The clauses make provision to permit the use of a vape during a performance if the use is justified to preserve the artistic integrity of the performance. In Wales, Northern Ireland and Scotland, this takes the form of a defence to the offences of vaping in a vape-free premises or failing to prevent vaping in a vape-free premises. In England, the Secretary of State has the power to create equivalent defences.

The power to designate any spaces vape-free will be subject to a full and open consultation, and the evidence for imposing any restrictions will be considered before regulating. I commend the clauses to the Committee.

[Dr Johnson]

This is an important clause that I am pleased to see, as I have campaigned against vaping in children for quite some time, as the Minister is aware. As the Minister says, if you can smell it, you are breathing it in. That is an obvious statement, but I have had people tell me that vapes do not give out any smoke and that it is therefore not possible for them to cause damage to anyone nearby. They may not give out smoke, but they certainly give out chemicals that are inhalable by anyone next to the person vaping. Otherwise, it would not be possible to smell the blueberry, or whatever flavour the person has chosen.

Key findings from studies on second-hand vaping include those on nicotine exposure. E-cigarettes emit nicotine in their vapour—in lower concentrations than cigarettes, to be fair, but they do emit it. The amount of second-hand nicotine depends on the brand; nicotine emissions vary among products. One study found second-hand exposure to nicotine from e-cigarettes to be lower than that from tobacco smoke generally. Nevertheless, it exists, and it is still undesirable for people, particularly children, to be forced to inhale such a toxin. It is particularly harmful to pregnant women and those with cardiovascular conditions. The potential long-term effects of such low-level nicotine exposure are unclear.

Although e-cigarettes do not release compounds such as carbon monoxide, as cigarettes do, they do emit other chemicals such as propylene glycol and vegetable glycerine, which have been associated with respiratory irritation. Certain volatile carbonyl compounds, such as formaldehyde, have been identified in cigarette vapour, which could pose health risks with long-term exposure.

One of the persistent limitations with vaping is the lack of long-term data on the health effects of second-hand e-cigarette vapour. Most researchers focus on the acute effects, but as e-cigarettes are a relatively new product, certainly on a mass-market scale, we still do not fully understand the potential long-term health consequences of inhaling these vapours regularly, especially in confined spaces.

I would argue—it seems from the clause that the Minister agrees—that we need to be careful, particularly with our children. We do not want to addict a whole load of generations to this habit. We do not want others to experience second-hand vapours. There have been cases of people dying of second-hand smoking. As the Minister has said, we know that second-hand vapour can cause asthma and other lung diseases.

Parliament itself has been a place where one experiences second-hand vaping. I was pleased to see last year that Mr Speaker had put notices in the Tea Room and elsewhere around the House stating that there should be no vaping in public. We are due to vote shortly, as you said, Mr Pritchard; even during votes, I have gone into the ladies’ rest rooms, where we have a little seating and sofa area, and found female MPs vaping, including one member of the Cabinet. It is prevalent in all parts of society. We should not be exposed to such things in the workplace. Children, in particular, should not be exposed to such chemicals at all.

Clause 139 will amend the Health Act 2006 by inserting a new chapter, “Vape-free places in England”, which will establish a framework for prohibiting the use of certain vapes in designated areas and in vehicles in England, ensuring that specific places remain vape-free, much like the existing rules for the smoke-free environment. Does the Minister intend there to be an overlap? Clearly it would be much simpler, both for enforcement and for understanding among the public, if there were a direct overlap with the incongruity between the smoke-free and vape-free environments. I know that some say that if we make places vape-free we are encouraging people to smoke, but they cannot smoke there either, so that seems to be a false argument.

--- Later in debate ---

[Jack Rankin (Windsor) (Con)]

I am afraid to say to Government Members and to the shadow Minister that I am going to break up the cosy consensus. I had lunch at the Institute of Economic Affairs, which has given me some classical liberal vibes. I know that that will warm the Minister’s heart.

Part 7 of the Bill will give the Secretary of State powers to designate smoke-free places through secondary legislation; clause 139 will do the same for vape-free places. I have a few concerns about that approach. First, it has the potential to force people who have already switched or are in the process of switching from cigarettes to vapes—or indeed to heated tobacco, which is the subject of the next clause—to use their devices in the same areas as smokers, which runs the risk of their moving back to cigarettes. There is a risk that the places designated for vaping will often be the places designated for smoking. We all agree that even though we do not want people to start vaping, we would rather that people vaped if they are on cigarettes. In my view, the clause will be detrimental to its own aims.

[Dr Johnson]

I appreciate that we do not agree on the point about vape-free places, but the argument that they will make people smoke seems to be based on the premise that if someone cannot have a vape in their office, they will pick up a cigarette. They cannot pick up a cigarette in their office either. If, as has been suggested, there is congruity between smoking and vaping, how is it that a person who cannot smoke or vape in a place will then decide to smoke when they go outside to an area that is not designated as smoke-free?

[Jack Rankin]

It is not that people are not going to vape. They will go outside to the designated vaping spot, which in the overwhelming majority of instances will be either the same place that is designated for smoking or immediately adjacent to it. If someone is a recent ex-smoker or is trying to quit, effectively forcing them to vape in an area near cigarette smoke seems incredibly damaging to public health. I do not think that that is a particularly controversial statement.

--- Later in debate ---

[Dr Johnson]

Surely the alternative is asking people to vape elsewhere, although they would be exposing non-vapers and non-smokers—perhaps with clinical vulnerabilities, or perhaps children—to their vapes instead.

[Jack Rankin]

I will come on to the point about the relative effects of second-hand vaping and of smoking, but I will make some progress first.

My second point, which I have made throughout our debates on the Bill, is that we are potentially conflating vapes with cigarettes in legislation, which will exacerbate the misinformation that such alternatives are equally harmful to cigarettes. That will further undermine the Government’s goal of helping smokers to quit. Indeed, Action on Smoking and Health found:

“Half of all smokers…incorrectly believe vaping is more or equally as harmful as smoking…This is the highest ever proportion with this misconception across all waves of the survey and a significant increase on misperceptions found in 2023. Only one third of smokers understand vaping is less harmful than smoking.”

It seems to me that if we group vapes and cigarettes together and treat them in the same way, that misperception will only be exacerbated. That may further reduce the inclination of smokers to switch to vapes.

--- Later in debate ---

[Jack Rankin]

My hon. Friend gets to the nub of the point that I am making. Vapes can be a tool to help the Government in their desire to create a smoke-free generation, and this legislation could be counterproductive to that, by their own measures of success. Members—certainly those on the Opposition Benches—have to engage with not necessarily the law that is written but how it will be implemented in reality. Businesses are likely to respond to this legislation by just putting up a sticker on the smoking shelter that says it is the designated vaping place as well. That is the risk.

[Dr Johnson]

Although I disagree with my hon. Friend on the principle of vape-free places, he is making a reasonable point about the enforcement and congruity with smoke-free areas. If there is not congruity with smoke-free areas, this legislation will be more difficult to enforce, because people will not know which is which and it will lead to more inadvertent errors. He also talks about the idea of vape-free areas being less important because vaping is potentially less harmful, but we do not know that.

[Jack Rankin]

As my hon. Friend knows, I am not a doctor as she is, but I will repeat that Cancer Research UK said that there is

“no good evidence that second-hand e-cigarette vapour is harmful”.

and Public Health England made a similar comment. I understand the point that the hon. Member for Worthing West has made a few times about the precautionary principle, but we could take that to any excess.

--- Later in debate ---

[Andrew Gwynne]

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to heated tobacco-free places. They provide for the Secretary of State in England, Scottish Ministers, Welsh Ministers, and the Department of Health in Northern Ireland to designate certain places and vehicles as heated tobacco-free, but only where they are already smoke-free. They also require that appropriate signs must be displayed in or near the heated tobacco-free place, and they give powers to set requirements in respect of those signs.

In addition to making it an offence to use a heated tobacco device in a heated tobacco-free place, the clauses also place duties on persons who control or manage heated tobacco-free places, which can include drivers of heated tobacco-free vehicles, to ensure that their premises or vehicles remain heated tobacco-free. In Scotland, the obligation is to not knowingly permit another to use a heated tobacco device in a heated tobacco-free place; in England, Wales and Northern Ireland, the obligation is to cause someone who is using heated tobacco in a “free from” place to stop using the device. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

The provisions for England will also provide powers for the Secretary of State to create defences to permit the use of heated tobacco devices during a performance if that use is justified to preserve the artistic integrity of the performance.

There is no safe level of tobacco consumption. All tobacco products are harmful, including heated tobacco products. There is evidence from lab studies of the toxicity of heated tobacco. There are less harmful, tobacco-free products that can support people to quit instead of using an alternative tobacco product. It is therefore important that heated tobacco products be included within the scope of the Bill.

We are considering making all currently smoke-free indoor places heated tobacco-free, and making outdoor spaces heated tobacco-free. However, that is subject to consultation. There is a statutory duty to consult, as I have mentioned on umpteen occasions, before bringing forward regulations to designate any spaces heated tobacco-free. I therefore commend the clause to the Committee.

[Dr Caroline Johnson]

Clause 140 and the associated provisions for the other parts of the United Kingdom provide powers for the Secretary of State to prohibit the use of heated tobacco products in England in places that are already smoke free. That will need to be enforced by people who may not be familiar with heated tobacco devices. Will the Minister comment on the training?

I have only once come across a heated tobacco device at a dinner at Westminster. I initially thought the gentleman was vaping at the table, but it turned out he was using a heated tobacco device, which I had a look at—I had never seen anything like it before. It may be all well and good in metropolitan London, where people may be more familiar with heated tobacco, but how will people who are not familiar with these devices and have perhaps never heard of them be expected to recognise them and know they are not legal?

Has the Minister any plans on how to educate the public on the presence of heated tobacco, what it is used for and what the devices look like, in order that the law can be enforced? How will he do so without providing an advert for it to people who are old enough to buy it—at least in the short term, until it becomes illegal?

[Jack Rankin]

Government Members will be glad to know that I do not intend to repeat my points from the previous clause. Like the shadow Minister, I am less familiar with heated tobacco products, but I suspect the arguments I made regarding clause 139 apply to clause 140.

I want to make two or three points specific to heated tobacco. As with vaping, designating smoke-free areas as also being heated tobacco-free is dangerous, as it forces consumers to use their less harmful products alongside smokers. The risk is to increase the chance of their moving back to cigarettes. I will quote Public Health England:

“Compared with cigarette smoke, heated tobacco products are likely to expose users and bystanders to lower levels of particulate matter and harmful and potential harmful compounds.”

It is not clear to me that there is an effect on a bystander of someone using these devices. The Cochrane review cited an earlier review on heated tobacco products that concluded that users and bystanders were exposed to toxicants,

“although at substantially lower levels than cigarettes”.

Perhaps the Minister could comment on the relative harms, but I am not convinced.

--- Later in debate ---

[Jack Rankin]

The Minister is disagreeing, but he can combat that in his speech.

[Dr Johnson]

My understanding is that the industry, in the same way that it in the past marketed filters as a way of making things less harmful, when in actual fact the microplastics may have made them more harmful, may have advertised heated tobacco as a way of saying, “You’re not smoking it, so it’s not as bad for you.” It is not therefore a recommended quit aid, but a way for the industry to try to maintain its market.

[Jack Rankin]

My hon. Friend’s points have been noted for the record. From what I have read and seen in the representations to the Committee and more widely, heated tobacco seems to me to be similar to vaping, in the sense that we do not people to start it as a product, but it is less harmful than cigarettes, so we should try to facilitate a way for people to use those methods as cessation devices.

[The Chair]

With this it will be convenient to discuss the following:

Schedule 17.

Clause 146 stand part.

Schedule 18.

Clause 152 stand part.

Schedule 19.

Clause 157 stand part.

Schedule 20.

[Dr Johnson]

Clause 141 is fairly self-explanatory and links to schedule 17, which contains the amendments to other legislation consequential on clauses 136 to 140. I do not have any specific comments to make on it.

[Andrew Gwynne]

These clauses and schedules ensure that the definitions in existing legislation align with those used in the Bill, and that references are accurate and reflect any provisions inserted into or removed from the relevant Acts. I therefore commend the group to the Committee.

Question put and agreed to.

Clause 141 accordingly ordered to stand part of the Bill.

Schedule 17 agreed to.

Clauses 142 to 146 ordered to stand part of the Bill.

Schedule 18 agreed to.

Clauses 147 to 152 ordered to stand part of the Bill.

Schedule 19 agreed to.

Clauses 153 to 157 ordered to stand part of the Bill.

Schedule 20 agreed to.

Clause 158

Power to prohibit vaping etc on ships

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

[Dr Johnson]

Clause 158 relates to shipping. I think a question was raised earlier about why ships were specifically excluded. That is partly because ships are important enough to have their own specific, separate clause. Clause 158 amends section 85 of the Merchant Shipping Act 1995 and makes provision regarding safety regulations that are made under that Act to provide for vape-free and heated tobacco-free provision for ships and hovercraft, corresponding to provisions in the Health Act 2006.

As I mentioned in an early sitting of this Bill Committee—I am glad that the Minister enjoyed the history of tobacco—maritime history and tobacco are inextricably linked. The allure of tobacco in the new world enchanted European sailors and left an indelible mark on global commerce as well as on our culture. Famous sailors, both factual and fictional, were smokers, from Captain Cook—who came from a place very close to where I was born, Marton in Middlesbrough—to Ernest Shackleton, and from Popeye the sailor man to Captain Haddock in the Tintin books. Smoking was a fact of life—worryingly, even aboard wooden vessels.

For four centuries, seamen and passengers used cigarettes, pipes and matches, which were a significant cause of maritime fires and disasters. The earliest dated clay pipe comes from a ship that sank off Alderney in the Channel Islands, probably in November 1592. A sea captain wrote in Fraser’s Magazine for Town and Country in 1875, I think, a piece entitled “The Dangers of the Sea”. In it, he chastised the carelessness of merchant seamen. He said:

“It is to be regretted that in all classes of merchant ships smoking below is an acknowledged custom. Jack lies on his dirty bed of straw with pipe in mouth, reading some old scrap of a newspaper, or the pages of a novel, and not unfrequently falls asleep with the burning embers beside him”,

adding that the mystery is not why the ship in question was burned,

“but why such accidents are not constantly occurring from this and other causes.”

Indeed, we talked earlier in Committee about the dangers of house fires from people falling asleep while smoking in bed.

More than eight decades later, in a 1957 booklet, the Ministry of Transport still blamed smoking more than any other reason for fires on board ships. It said:

“Lighted cigarettes smoked surreptitiously are abandoned in combustible cargo and cause fires which smoulder unnoticed for days before bursting into flame. They are thrown away on deck where the wind catches them and blows them into an open port, hatch, or ventilator where they may land on inflammable material. They are left on the edges of ashtrays in the saloon or dropped from men’s hands as they fall asleep.”

With reports like that, it is no wonder that smoking was eventually banned in the maritime context.

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

Tobacco and Vapes Bill (Fifteenth sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

Question (28 January) again proposed, That the clause stand part of the Bill.

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

When we adjourned on Tuesday evening, we were talking about this clause, which relates to shipping and a power to prohibit vaping and so on ships. We were —or I was—talking about the history of maritime restrictions on tobacco and cigarette use and why that has been the case. I had a couple of questions about the clause for the Minister.

My first question relates to the fixed penalty notices and the powers of entry mentioned in relation to previous enforcement. How would they apply on board ship, given the international nature of shipping? What is the role of maritime authorities and enforcement, or is it down to the captain? Who is going to enforce this? How will it work across different jurisdictions? Many ships operate internationally, so it is relevant to consider how the regulation interacts with international maritime law. For example, if a ship is registered in one country but operates in another jurisdiction, how will enforcement of the new provisions vary?

Enforcing a vape ban on ships operating in international waters, or outside the jurisdiction of the United Kingdom, raises the question of which laws apply. Ships registered under a particular nation’s flag are typically subject to the laws of that nation, but in international waters, enforcement may be complicated by the lack of physical presence of the authorities in the country whose law is being enforced.

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

It is a pleasure to serve under your chairship, Mr Pritchard. On the questions that the hon. Member is asking about maritime law, are those kinds of issues not already tackled? Drinking, gambling and so on can happen on ships, but do not happen when they enter countries, and that is based on agreements between international partners, shall we say.

[Dr Johnson]

We are talking about something that will be illegal in the United Kingdom and how United Kingdom law is enforced. My question relates to how people might behave in other countries’ waters on the basis of local laws. The question is, if this is a law that we are bringing in to apply to British ships, how will the Government expect it to apply when the British ship is not in a British port or in British waters, but perhaps in international or foreign waters? It could lead to difficulties in compliance and potential jurisdictional conflicts where the local laws do not agree. If the ship is operating in another nation’s territorial waters, that country might have its own laws on vaping or smoking. Which law prevails? Another question is when trying to enforce a ban when transporting humanitarian aid or refugees, in that the people who are being picked up might not realise that there is a ban. How would that be enforced in such circumstances?

Some people might ask whether the extent of the regulations for vaping and heated-tobacco devices is too inflexible? Such devices do not pose the same fire risks as cigarettes or pipes, although they are not without risk. Modern Royal Navy deployments, as I understand them, can typically last six to nine months, and vaping is used when smokers are trying to quit as a cessation tool. What discussions has the Minister had about the health of our military personnel deployed for such periods of time? How will he ensure access to nicotine replacement therapy and smoking cessation services so that we are not leaving people without access to what would, for them as an adult, be a legal product?

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

It is a pleasure to see you back in the Chair, Mr Pritchard. There is light at the end of the tunnel: today is the day that we will have a Bill in one shape or another, having reached the end of Committee stage and deliberated everything; and if not, of course everything that has not been debated gets accepted anyway, so we will have a Bill.

The clause amends an existing regulation-making power in section 85 of the Merchant Shipping Act 1995, so that any safety regulations—this is what we are talking about here. Health and safety regulations in merchant shipping that are made under section 85 provide for heated tobacco and vape-free provision for ships, which will correspond with the provisions in the Health Act 2006.

The shadow Minister, the hon. Member for Sleaford and North Hykeham, put a couple of questions. We have the power to make provision about health and safety in the merchant shipping sector already, under the 1995 Act. Those powers are already there, are already being implemented and are already being enforced. All that this measure will do is extend the provision to vapes and heated-tobacco devices, to bring it into line with everything else we have done over our debates.

The matter is one for the Department for Transport. It owns this policy, and health and safety in merchant shipping. We will continue to work with the Department for Transport as we consider any future regulations to create additional smoke-free places, but it is for the Department for Transport to implement and to enforce health and safety regulations in merchant shipping, as it does now. It will continue to do that, but with an extension of its powers. With that, I commend the clause to the Committee.

Question put and agreed to.

Clause 158 accordingly ordered to stand part of the Bill.

Clause 159

Application to Parliament

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

[Dr Johnson]

This is an interesting clause, because it applies the Bill to the parliamentary estate. According to Erskine May, there has been some confusion about whether statute law can apply inside the parliamentary estate, because of the principle of exclusive cognisance. That means that Parliament has control over its own internal matters and that not all laws automatically apply within Parliament. To quote from Erskine May directly:

“Actions in respect of which exclusive cognizance is claimed and has been admitted are not restricted to formal acts of either House. This privilege has been held to extend to the sale of intoxicating liquor within the precincts of the House, though those responsible did not hold a licence.”

Smoking, for example, has technically been prohibited in the Commons Chamber, public and Members’ Lobbies and Committee Rooms since 1694. According to Erskine May, MPs agreed

“That no Member do presume to take tobacco in the gallery of the House or at a committee table”.

Around the estate, however, historically it was the custom to smoke in the bars and the Tea Room, and in the Committee Corridor outside this very Committee Room we are in today. There are legal exceptions and exemptions that are worth discussing now.

The Office of the Parliamentary Counsel published guidance on Crown application in 2021 and noted that the Palace of Westminster is Crown land. The guidance explains the general presumption that an Act does not bind the Crown unless it does so expressly or by necessary implication. Often, an Act includes a clause on Crown application, specifying whether the Act applies to Crown land, but the Health Act 2006 does not include such a clause.

The position set out by case law is that the Health Act 2006 does not apply to the Crown, as in the 2017 case of R (on the application of Black) v. Secretary of State for Justice. In that case, the prisoner, named Mr Black, was serving an indeterminate sentence at Her Majesty’s Prison Wymott. He was a non-smoker with a number of health problems that were exacerbated by tobacco smoke—we talked about prisoners and vaping earlier. He complained that the smoking ban was not being properly enforced in the common parts of prisons, and issued proceedings for judicial review of the Secretary of State’s refusal to provide access to the NHS smoke-free compliance line to prisoners.

The Supreme Court unanimously dismissed Mr Black’s appeal, holding that Parliament must have intended the Crown to not be bound by the smoking ban, otherwise it would have made an express provision for it in the Act. In the words of Lady Hale:

“there are powerful indicators in the language of the Act itself that the Crown was not to be bound by the smoking ban.”

In 2013, the Joint Committee on Parliamentary Privilege noted that the ambiguity had led to many inconsistencies in statute law. That Committee considered that it was not practicable to resolve the inconsistencies without sweeping retrospective change, which could have unforesee- able consequences. It concluded that in the absence of legislation, the safest way forward—however undesirable it might be as a statement of principle—was to reiterate and formalise the current presumption that legislation does not apply to Parliament unless it expressly provides otherwise. That was agreed on, and now there is a rule that legislation creating individual rights that could fit with parliamentary activities must expressly say that it applies within Parliament.

Here we are today, with clause 159, which stipulates that the Bill and regulations made under it will apply to the parliamentary estate. The Bill does not replace the smoke-free provisions in the Health Act 2006 and does not otherwise provide directly for the smoke-free restrictions discussed above. There is no obvious means by which clause 159 will place the parliamentary estate within the scope of the 2006 Act. However, clause 136 enables Ministers to add to the list of places designated as smoke-free by introducing new regulations under proposed new section 4(1) of that Act. It is therefore possible for new regulations to designate the parliamentary estate as smoke-free, but I have seen no indication from the Government that they plan to do that. Clause 136 also enables Ministers to make exceptions to smoke-free legislation.

The extent to which the Bill can be used to place the parliamentary estate within the scope of smoke-free legislation is therefore a matter for legal interpretation, and I would be interested to know the Minister’s thoughts on that. Earlier in the debates that we have been having during line-by-line scrutiny of the Bill, we talked about the snuff that is kept outside the door, with the Doorkeepers, and the Minister suggested there was no reason why that could not continue, but I am interested to understand his thoughts in relation to clause 159.

[Sarah Bool (South Northamptonshire) (Con)]

I concur with the rationale and explanation that my hon. Friend has just given. The question about how we will deal with snuff and other products in the House is an interesting one, because we do not want to see any of our Doorkeepers perhaps being criminalised for having something on the estate or how they have supplied it. I know that earlier discussions focused on the BBC—

[Dr Johnson]

I thank my hon. Friend for her support in this discussion. Is it not also the case that the House has a lot of peculiarities and traditions that are sometimes eccentric, but interesting, and that although we would not necessarily want to create exceptions for MPs to use a product that is not available to members of the public, the inability to have the box there would be a loss of a tradition, which would be a bit of a shame?

[Sarah Bool]

I agree. One of the things that I have most enjoyed over the last few weeks and months has been learning all the different traditions and the meanings behind them. Having done my original degree in history, I appreciate all that, so the many history lessons that we have had from the shadow Minister in the course of these debates have been much appreciated by me. It is interesting that that is why clause 159 has been put in place, but I would like the Minister to expand on how he thinks that it will work in practice. Will we see the removal of the snuffbox? How will that work in the future?

--- Later in debate ---

[Andrew Gwynne]

This is a standard clause. It provides that the measures in the Bill and regulations made under it apply to the parliamentary estate. I hope that Opposition Members do not think that the parliamentary estate should be above the law that Parliament will, I hope, pass. This clause requires the parliamentary estate to adhere to the tobacco and vaping control measures under the Bill and regulations made under it, ensuring consistent application of the law. The wording of the clause was previously agreed with the Clerks of both Houses of Parliament—both the House of Commons and the other place—so that the whole of the parliamentary estate will be covered by the same laws that will apply outside the parliamentary estate. It will include, for example, the shops, to ensure that there is consistent application of the law. It appertains to the House of Commons shop, the House of Lords shop and the retail outlets on the parliamentary estate. Those regulations that apply to retailers outside the parliamentary estate will apply within the parliamentary estate.

[Dr Johnson]

Is the Minister aware of any retailers on the parliamentary estate at the moment that actually do sell any tobacco or cigarette products?

[Andrew Gwynne]

No, I am not, but the point is that the law has to apply equally within Parliament and outside of Parliament. There has to be a consistency of approach, and just because a person cannot get the House of Commons snuff from the House of Commons shop does not mean that the House of Commons shop should have a different set of regulations from any other retail outlet in the United Kingdom. Parliamentary Clerks and the Cabinet Office were consulted before the inclusion of this clause. They were content for it to be included, and that is why it is in the Bill.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss schedule 21.

[Dr Johnson]

I know that the Minister enjoyed grandstanding about equality, but I am not sure that he actually answered the question. Clause 160 talks about consequential amendments, and one question that I asked him about clause 159 was whether it would have the effect that he says it will. It says:

“To the extent that this Act or regulations made under it would not…apply in relation to the Parliamentary Estate, they do so apply”,

but it does not include the Health Act. As there are consequential amendments in clause 160, would there need to be a consequential amendment to the Health Act? It is that Act, as amended, that provides for the regulations in relation to smoking.

[Andrew Gwynne]

Clause 160 and schedule 21 provide further general consequential amendments relating to this Bill. The specific amendments to existing legislation are set out in the schedule. Those amendments help the provisions in the Bill to function effectively within the existing legislative framework. This is a standard supplementary clause that enables the legislation to function as intended following the Bill’s introduction.

The shadow Minister refers to different aspects of legislation. Many of the clauses that we have already debated bring together existing tobacco control legislation in one place, so the consequential powers that we are seeking through this clause will make sure that the existing legislation set out in the schedule will be amended, to ensure the smooth running of the legislation. I therefore commend the clause and schedule to the Committee.

Question put and agreed to.

Clause 160 accordingly ordered to stand part of the Bill.

Schedule 21 agreed to.

New Clause 2

Tobacco products statutory scheme: consultation

“(1) The Secretary of State must consult and report on the desirability of making a scheme with one or more of the following purposes—

(a) regulating, for the purposes of improving public health, the prices which may be charged by any producer or importer of tobacco products for the supply of any tobacco products,

(b) limiting the profits which may accrue to any producer or importer in connection with the manufacture or supply of tobacco products,

(c) providing for any producer or importer of tobacco products to pay to the Secretary of State an amount calculated by reference to sales or estimated sales of those products (whether on the basis of net prices, average selling prices or otherwise) to be used for the purposes of reducing smoking prevalence and improving public health.

(2) In this section—

‘importer’, in relation to tobacco products, and ‘tobacco products’ have the meaning as in Part 5 (see section 112),

‘producer’, in relation to tobacco products, is to be construed in accordance with the meaning of ‘production’ in Part 5 (see section 112).”—(Mary Kelly Foy.)

This new clause would require the Secretary of State for Health and Social Care to consult on proposals for regulating the prices and profits of, and to raise funds from, tobacco manufacturers and importers.

Brought up, and read the First time.

[Mary Kelly Foy (City of Durham) (Lab)]

I beg to move, That the clause be read a Second time.

I will not be pushing this new clause to a vote; nevertheless, I think it is a policy that the Minister should take into consideration. New clause 2 would require the Secretary of State for Health and Social Care to consult on a “polluter pays” levy. The Minister will know that I and members of the all-party parliamentary group on smoking and health have campaigned for this for some time. It was also recommended in the Khan review in 2022 and, more recently, by the Institute for Public Policy Research’s commission on health and prosperity.

Action on Smoking and Health estimates that smoking costs England more than £43 billion a year. That is more than £27 billion in productivity costs, nearly £14 billion in social care costs and more than £1.8 billion in NHS costs—and much more. A “polluter pays” levy on tobacco manufacturers could raise around £700 million a year, with that money coming from tobacco companies’ profits, not raised from consumers.

A levy of this kind would provide sustainable funding for tobacco control and could be given to organisations such as Fresh, the tobacco control programme in the north-east, which does such vital work in ensuring that no one gets left behind as we move to a smoke-free future. In fact, all the Government’s programmes on tobacco, including mass media campaigns, incentives for pregnant women and support for smokers with mental health problems, could be funded many times over, with cash to spare that could go to other public health initiatives.

This would be subject to consultation, but the model proposed by Action on Smoking and Health would cap the wholesale price of tobacco, similarly to how we cap the prices of essential utilities and hence limit profits. The big four tobacco companies account for 95% of UK sales and make excessive profits selling a highly addictive product that kills two in three long-term users when used as intended by the manufacturer. Tobacco manufacturers make an estimated £900 million in profit per year in the UK, with an average net operating profit margin of about 50%. For context, the average profit margin for UK manufacturing is 10%.

There is widespread public support for this measure: 79% of adults in Great Britain would support a levy on the tobacco industry, with only 5% opposed. I hope the Government will seriously consider this, because it would complement the intentions of the Bill.

[Dr Johnson]

I am interested by this new clause. Tax is applied to some products that the Government would like us to consume less of, to make them more expensive so that we consume less of them, and that has been the case with tobacco for some time.

Looking at the current levels of tobacco duty, we see that tax on cigarettes is 16.5% of the retail price of £6.69 for a pack of 20, which is quite a substantial proportion of the cost. Cigars are taxed at £4.17 on a 10 gram cigar, and there is 14.3% tax on a £30 packet of hand-rolling tobacco.

The Government introduced an escalator for further increases in tobacco taxation in their autumn Budget. In addition, they have introduced a tax on vaping products, which will help to take them out of the reach of pocket money. Personally, I have been quite concerned about the fact that vaping products are so cheap that children can easily buy a vape with pocket money, and if they are potentially about to get caught, they can discard it without worrying and then buy another one. A tax on vaping products is, therefore, a welcome initiative.

However, as I understand it, the Government make £8.8 billion per year from tobacco taxation—I am sure the Minister will correct me if that figure is wrong—and it is in the gift of the Chancellor to increase these taxes if she wants to. She is quite good at increasing taxes, so I am sure she knows that that is the case.

As I understand it, the hon. Member for City of Durham proposes that the tax on these products should automatically go towards improving the health—including the public health—of the nation, as opposed to going into general funds. In practice, the Government are already free to spend the money that they receive from tobacco and vape taxation on the health service. They certainly already spend more on the health service than they receive in tobacco taxes. It is a choice. To govern is to choose, and they are choosing how they wish to spend the taxes they raise.

The new clause proposes

“limiting the profits which may accrue to any producer or importer”.

Presumably, that would require some sort of open-book system, and I am not quite sure how the hon. Lady thinks that would work. This level of regulation of the market would require quite detailed open-book working. Perhaps she would like to explain why she thinks that is necessary, when the Government already have in their remit the levers of taxation specifically for these products.

[Mary Kelly Foy]

The difference is that the tax would not come from the consumers. This would be a tax on the big four tobacco companies, rather than raising taxes from consumers. We know that consumers of these products are already likely to come from deprived backgrounds. In addition to raising revenue, the measure would allow us to impose much tighter controls on the prices of tobacco products. That would disincentivise the tobacco industry from creating so much profit from their products.

Although the Chancellor can use taxes for whatever purpose, this measure would be a tax on those companies whose product, as we know, kills one in two of the people who use it. Just raising taxes in the way that the hon. Lady describes would be an extra burden on the consumers who we are trying to help quit tobacco.

[Dr Johnson]

I thank the hon. Lady for her explanation, which was really helpful. I am grateful that she, as a Labour MP, understands that a tax on business will be passed on to the consumer, because it seems that the Chancellor does not. Perhaps the hon. Lady should apply for a new job.

The hon. Lady is right that if taxes are applied to a business, the business will pass them on to the consumer. The only way to avoid that is through price control. Nevertheless, I do not think that makes price control a desirable thing for the Government to interfere with. That level of regulation would go too far, and other measures in the Bill already seek to restrict and disincentivise smoking in so many different ways. I hope that they will be effective and that there will be no need for such onerous regulation.

[Sarah Bool]

The hon. Member for City of Durham has proposed a very interesting concept. Although she may not be pressing the new clause to a vote, it is interesting to discuss the concept in principle, so I thank her for tabling it.

Essentially, the proposal is that the Secretary of State would have to consult on a scheme that would regulate prices and limit profits, and then they would calculate the tax:

“by reference to sales or estimated sales of those products”.

That is an interesting concept, but I wonder whether it could be deemed anti-competitive. I know that the ultimate aim is to close down the tobacco companies, and that is essentially what the measure would drive towards, but in the interim, when many people will still be legally able to smoke, what arguments might the companies make in that regard? The Chancellor says she is pro-business and is encouraging business. The tobacco companies are perhaps not the businesses she has in mind, but the provision would have wider repercussions that could flow into other areas.

--- Later in debate ---

[Mary Kelly Foy]

The new clause would be a game changer. One of the questions was whether the measure might later be applied to other areas—I presume that the hon. Member means taxing the big alcohol and gambling companies—but tobacco is a uniquely lethal and addictive product, so in this case the intervention is justified. She makes a good and compelling point, but I think the Government’s overall health strategy is to shift from sickness to prevention, which will require looking at all habits and supporting people to live healthier lives in healthy environments.

[Dr Johnson]

I have been listening carefully to the hon. Lady. Does she have a price for tobacco products in mind? Governments of different colours have increased tobacco duty a bit at a time, presumably to nudge behaviour. If we do not increase it enough, we do not have the desired effect, but if we increase it too much and too fast, we potentially drive people into illicit-market tobacco. We heard from the chief medical officer about the difficulties people have in giving up cigarettes because of the profoundly addictive nature of nicotine, so if we were to increase the prices too quickly, we could end up making life difficult for people who are poor and addicted to nicotine, without the necessary support in place. If the prices are going to go up to somewhere in the middle, how is that different from taxation?

[Mary Kelly Foy]

The new clause asks for a consultation, so a lot of issues would need to be worked through with the Chancellor. However, the tobacco companies make exorbitant profits from a product that kills the folk to they sell it to, so I am sure that the shadow Minister would agree that that means we should use some of their profits to pay for the damage being done.

[Dr Johnson]

I certainly agree that it is immoral to sell products that they know are addictive, are dangerous and kill people.

[Sarah Bool]

I am almost glad that my hon. Friend the Member for Windsor is not here, because at this point we would probably be launching into a much longer and more protracted debate, so we are lucky in that regard—[Interruption.] I am being chastised by the shadow Minister.

We should consider that interesting point and its knock-on impact because, in common with the hon. Member for City of Durham, I have concerns about the illicit tobacco market. I very much agree that we should be moving to a new system of preventive medicine. As I have mentioned, I have type 1 diabetes, and I want to see a greater and earlier use of technology to prevent long-term problems. The new clause provides a useful point for discussion, and I thank the hon. Lady for tabling it.

[Mary Kelly Foy]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Ban on supply of cigarette filters

“(1) The Secretary of State must make regulations under section 140 of the Environmental Protection Act 1990 having the effect of prohibiting the supply of relevant cigarette filters or cigarettes containing relevant cigarette filters, whether by way of sale or not, in the course of a business.

(2) The notice required under section 140(6)(b) of the Environmental Protection Act 1990 in relation to the regulations mentioned in subsection (1) must be published no later than the end of the period of 6 months beginning with the day on which this Act is passed.

(3) In this section,

‘relevant cigarette filter’ means a filter which contains plastic and which is intended for use in a cigarette, whether as part of a ready made cigarette or to be used with hand rolling tobacco or other substances to be smoked in a cigarette.”—(Dr Caroline Johnson.)

This new clause requires the Secretary of State to make regulations which would prohibit the supply of cigarette filters which contain plastic or cigarettes containing cigarette filters which contain plastic. The regulations would be made under section 140 of the Environmental Protection Act 1990.

Brought up, and read the First time.

[Dr Johnson]

I beg to move, That the clause be read a Second time.

I am sorry that the hon. Member for Dartford is not here to discuss his important new clause 4, which is about a ban on cigarette filters. I asked the Minister why cigarette filters were not included in clause 1, along with cigarette papers and tobacco products. Cigarette filters have a health effect, but it is not necessarily the effect that most people think. Filters were first introduced in the 1950s in response to mounting scientific evidence highlighting the dangers of smoking. The tobacco industry seized upon the opportunity to present the filter as a way to make cigarettes safer. It claimed that they reduced the inhalation of harmful substances such as nicotine, tar and other toxicants.

The early filters were made of cork, which is the origin of the cork pattern that can still be seen on many cigarettes. By the end of the 1950s, sales of cigarettes with filters had surged to more than 40% of the market, and by 1965, more than 60% of cigarettes were manufactured with filters. Alongside that shift, the marketing of light and mild cigarettes with ventilated filters further enhanced the illusion—and it is an illusion—of reduced harm, making smoking appear to customers more palatable, and to some extent reducing customer awareness of the risks involved.

There were some early studies that appeared to support the tobacco industry’s claims. Filter tip cigarettes at that time were thought to be associated with lower rates of lung cancer and mortality, compared with their unfiltered counterparts. However, when comprehensive and rigorous studies were completed over time, the initial findings were disproven. Subsequent epidemiological data revealed that both ventilated and non-ventilated filter tip cigarettes were just as harmful as unfiltered cigarettes. In fact, the incidence of lung adenocarcinoma—a type of lung cancer that has increasingly replaced the more prevalent squamous cell carcinoma—has risen significantly in recent decades. The rise in adenocarcinomas is believed to be linked to the use of ventilated filters, as they affect smoking behaviour and the combustion of the product.

One of the key reasons why filter tip cigarettes fail to reduce the risk of lung cancer and other diseases is the changes they cause in smoking behaviour. When cigarette filters were introduced, they altered the way people smoked. For example, smokers began taking longer and deeper puffs, increasing their exposure to harmful chemicals in the smoke. Such behaviours may have upset the potential benefits that some individuals thought filters might have in reducing the toxic smoke inhaled.

The presence of a filter, especially those with ventilation, changed the combustion of the cigarette itself. That led to a greater exposure in smokers to tobacco-specific nitrosamines, which are potent carcinogens and a major contributor to lung cancer. The filtering process did not remove those harmful substances, and in some cases may even have enhanced their presence in the smoke that smokers inhaled.

Another concerning aspect of modern cigarette filters is the material from which they are made. The most common material used is cellulose acetate—a synthetic plastic that, when inhaled, can contribute to respiratory issues. The fibres and microplastics from filters can embed in the lungs, potentially leading to long-term damage. Although that material can be effective in filtering out some particles, it does not remove gases of low molecular weight, such as carbon monoxide, which are also harmful to health.

Despite cigarette filters being marketed as a safer option, their widespread use over the past 60 years has had little effect on reducing the health risk of smoking. In fact, it may have contributed to a decrease in public awareness about the dangers of smoking, and may have led to more people becoming addicted to smoking without fully understanding the risks involved.

I note that new clause 4 suggests that the Environmental Protection Act 1990 should be used to ban the supply of cigarette filters, because they have a significant environmental impact. Roughly 4.5 trillion cigarette filters are disposed of annually, making them the most littered man-made waste item in the world and accounting for roughly a third of all litter found in coastal and urban clean-ups. Despite their small size, the sheer volume of discarded cigarette butts would fill almost 50,000 shipping containers every single year, and that is expected to increase by 50% in 2025.

[Dr Danny Chambers (Winchester) (LD)]

I was absolutely shocked to learn that cigarette butts account for one in five pieces of discarded plastic. When it is predicted that by 2050 there will be more tonnage of plastic in the ocean than fish, we should look at every way possible of protecting the environment and wildlife from plastic pollution. Back in 2019, a third successful dive was made to the Mariana trench—the deepest part of the ocean; it is 36,000 feet deep, which is greater than the height at which jumbo jets fly—and I was surprised that when the people were down there documenting previously unseen life forms, they came across plastic pollution. This is such a serious issue that we need to look at every way possible of reducing plastic pollution. Those tiny cigarette butts in particular can be swallowed by a huge number of creatures, as well as contaminating the environment.

[Dr Johnson]

I thank the hon. Gentleman for that important intervention. He is absolutely right that these items are a huge danger to the environment, and it is sad when we go to parts of our world that are still not well explored, such as the Mariana trench, and find evidence of damage caused by the human race, such as plastic pollution. Although I have huge sympathy for people who have become addicted to nicotine and find it difficult to quit smoking, there is no excuse for the litter that it creates all over our beaches and our urban and rural areas.

Cigarette filters are neither biodegradable nor effectively recyclable. They are made, as I said, primarily from cellulose acetate—a plastic material that does not biodegrade. Even after two years of decomposition, cigarette filters will have lost only about 38% of their mass, and the remaining material continues to persist in the environment. During that time, filters leach harmful substances, including heavy metals and toxic chemicals such as arsenic, that have been inhaled through the filter and into the surrounding environment, further contaminating soil and water sources.

Cigarette butt waste has been shown to impact marine and coastal environments. Studies have demonstrated that cigarette filters affect the micro-biodiversity of coastal sediment and that they pose harm to marine animals that ingest them. That is a growing concern, as the hon. Member for Winchester said, as plastic waste continues to accumulate in the ocean, harming wildlife and disrupting ecosystems. The Ocean Conservancy’s international coastal clean-up has, over the course of 32 years, collected more than 60 million cigarette butts from the ocean. Although that sounds like a lot, that accounts for just 0.00001% of all cigarette filters thrown away in a single year, so this is a difficult thing to clean up.

Despite the growing awareness of the environmental impact of single-use plastics, cigarette filters have not been subject to the same regulations as other plastic products. For example, the European Union banned many forms of single-use plastic in 2019, but cigarette filters were not included, leaving a significant loophole. As cigarette consumption remains widespread, the environmental impact of the filters continues to grow. In October 2024, Santa Cruz county in California became the first jurisdiction in the world to approve a ban on filtered cigarettes and cigars.

One of the questions I have for the hon. Member for Dartford who tabled the new clause—he sadly is not here—is why he has chosen to use the 1990 Act. The previous Conservative Government banned a number of single-use plastics on the basis that they were harmful to the environment, that there were non-plastic, more environmentally friendly and more suitably priced items available, and that it would help to improve the environment, which is a very good thing. However, one of the reasons for introducing those bans through secondary legislation under the 1990 Act was that there was not an opportunity to do so in primary legislation, because of the time constraints of the parliamentary calendar. The Minister has talked about getting time for primary legislation already.

This Bill is a piece of primary legislation, and to add cigarette filters to it only requires the Government to write in clause 1 “and cigarette filters too”, and to make consequential amendments through the Bill on that basis. I agree with the principle that cigarette filters are a bad thing for the environment, and they are not good for people’s health, but I am not entirely sure why the 1990 Act is being used and why the Minister has not included filters in clause 1 and consequentially throughout the Bill. Perhaps he can tell us in winding up.

[Sarah Bool]

I thank my hon. Friend for her explanation. I did not know that it was cork that gave the colouring, so that is another benefit of her history lesson. We are aware that the previous Conservative Government took strong action to try to remove plastics in the environment. We introduced the UK-wide prohibition on the use of plastic microbeads in the manufacture of some cosmetic and personal care products, such as face scrubs, toothpastes and shower gels, where the little beads could wash into the sea. That was one of the reasons why those beads were banned. It is therefore an interesting argument to make that we should ban cigarette filters with their plastic content, because we do not want further pollution of our beautiful natural environment.

The World Health Organisation has advocated for banning those filters. As my hon. Friend compellingly said, there are no health benefits to such filters being used—which I had not appreciated. One would assume that those filters would have helped, but it is interesting that they do not. I note that the UN General Assembly is also advocating for a ban on filters, particularly given their plastic content.

[Dr Johnson]

My hon. Friend makes the point about the plastic content. I just spotted that in the explanatory statement for new clause 4 from the hon. Member for Dartford, he talks about wanting specifically to ban cigarette filters that contain plastic, as opposed to other cigarette filters. That would improve the environment, but a question is raised by the fact that when a cigarette filter is in use, the toxic chemicals present in the cigarette flow through that filter and becoming lodged in it. So as well as the plastic pollution as the filter is littered into the environment, causing a hazard, there is also the fact that as it decomposes, those other toxic chemicals present in the tobacco smoke are in the filter and leach out into the environment. That presumably would be the case even if the filter was not made of plastic, although the plastic is clearly extra harmful.

[Sarah Bool]

I agree. That is a good conclusion to have worked through, which we perhaps had not had the opportunity to turn our attention to. I would like to see a provision of this nature. I am intrigued, as my hon. Friend said, by why the Minister has not included filters in the outright initial ban. That should be considered, perhaps on Report.

As a general principle, we need to look after our natural environment. A ban on the plastic contained in cigarette filters would surely be a sensible move. As my hon. Friend has said, however, the filters do not achieve what anyone was hoping and do not make smoking safer. I therefore think we must have further discussion. Will the Minister give a little more explanation on some of the rationale and whether the measure can be included in the Bill?

--- Later in debate ---

[The Chair]

Given that the shadow Minister moved the new clause, it is for her to press or withdraw. Shadow Minister, do you want to withdraw it or press it to a vote?

[Dr Johnson]

That depends on whether the Minister can assure me that he intends to bring forward legislation under the Environment Act 2021 to deal with plastic filters.

[Andrew Gwynne]

That is way above my pay grade. It is a matter for the Department for Environment, Food and Rural Affairs, and I have already assured my hon. Friend the Member for Dartford that I will speak to ministerial colleagues in DEFRA. We are very sympathetic to the aim of the new clause, but we do not support the Bill being the mechanism to achieve it.

--- Later in debate ---

[Dr Johnson]

I take the Minister at his word. He is an honourable man and I hear that he has sympathy for the new clause. The important thing is that it gets done, not necessarily that it gets done in a particular piece of legislation. I will take him at his word and look forward to seeing the legislation come before an SI Committee for DEFRA. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Ban on manufacture and sales of high-strength nicotine pouches

“(1) It is an offence to manufacture a high-strength nicotine pouch.

(2) It is an offence to—

(a) sell or expose for sale a high-strength nicotine pouch, or

(b) offer or expose a high-strength nicotine pouch for sale.

(3) It is an offence for a person to have a high-strength nicotine pouch in their possession with intent to supply it to another in the course of business.

(4) In this section “high-strength nicotine pouch” means a nicotine pouch that—

(a) is intended for oral use,

(b) is not intended to be inhaled,

(c) does not contain tobacco, and

(d) contains more than 20 milligrams of nicotine per pouch.

(5) It is a defence for a person charged with an offence under subsection (2) to prove that they took all reasonable steps to avoid the commission of the offence.

(6) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, or a fine, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.”—(Mary Glindon.)

This new clause provides for a ban on the manufacture and sale of high-strength nicotine pouches.

Brought up, and read the First time.

[Dr Johnson]

I beg to move, That the clause be read a Second time.

New clause 5 was tabled by the hon. Member for Newcastle upon Tyne East and Wallsend (Mary Glindon), who is not on the Committee, and addresses an important issue that is causing me huge concern as well: that of nicotine pouches. We have heard repeatedly in this Committee, and from our witnesses in the evidence sessions, about how the tobacco industry behaves—how it seeks to addict people to nicotine for a lifetime and how it seeks to do so in relatively young people, who are most susceptible to its marketing and to the nicotine addiction itself.

Nicotine pouches are tobacco-free products that are becoming increasingly popular in the UK. They first entered the market in 2019 and are most prevalent among smokers trying to quit, although there is now a substantial market for non-smokers, in the same way that we have seen with vaping and other products over time—this is the latest one, as it were. The main type of oral nicotine products comes from brands like Zyn, Velo, Nordic Spirit, LOOP and White Fox. There are also stronger variants, like Siberia and Killa. They are a tobacco-free product that is placed between the lip and the gum and held there for oral absorption of nicotine, similar to Swedish snus. They are pre-packaged, pre-portioned pouches produced in a variety of flavours.

The Health and Social Care Committee went to Sweden last spring—around the time that the previous Government’s Bill was in Committee—where we saw rows upon rows, floor to ceiling, of these products in shops across Sweden, where they are very popular. We have seen the same pattern of marketing towards children as we are seeing for vapes and have seen for tobacco in the past. If mint is one’s favourite flavour, one could go for crispy peppermint, mighty peppermint, peppermint storm, witty spearmint, humble spearmint or even spiffy spearmint. If fruit flavours are more your thing, Mr Pritchard, choices include wintry watermelon, blueberry boost, hot berries, blushy berry, groovy grape, breezy mango and punchy lime. These pouches are now available in a whole variety of flavours, also including cinnamon flame, nutty Virginia and fizzy lemonade, and they have become more popular. They have attracted investment from the world’s biggest tobacco companies, eager to shift to so-called reduced-risk products as regulation and health concerns tighten worldwide, and have become a viral hit with consumers, many of whom are too young to already be smokers.

Philip Morris International acquired Zyn maker Swedish Match in 2022 for about $16 billion and said that the product had helped to boost its revenues by almost a fifth in the first nine months of last year as it delivered its third quarter results. It said that Zyn was now available in 30 countries, with recent launches in Greece and the Czech Republic. British American Tobacco owns the Velo brand and said in August that nicotine pouches were its fastest-growing new category, with organic revenue up more than 48% in the first half of 2024 compared with 2023. I am sure the Minister will look at this carefully and, as he seeks to protect the population’s public health in relation to nicotine products, I am sure he will be cognisant of the need to protect under-18s from these products.

New clause 5 focuses specifically on the nicotine content of these products. The nicotine content of oral nicotine pouches can vary. Typically, it is between 4 mg and 18 mg of oral nicotine per pouch, but there are many that contain much more. Some online retailers sell products containing up to 150 mg of nicotine per pouch. Oral nicotine pouches are sold in a variety of flavours but also in a variety of strengths. The comparison with a cigarette is quite stark:

“Researchers at the University of Stirling found that some pouches for sale on the UK high street had a nicotine content equivalent to 10 cigarettes.”

Those products are being put on people’s gums and giving them the equivalent of 10 cigarettes over a short period of time. The Financial Times article from 5 November 2024 goes on:

“‘They are strong enough to be psychoactive and they can cause local irritation,’ said Rosemary Hiscock of the Tobacco Control Research Group at the University of Bath. ‘Even if flavours are safe for food, we can’t be sure that they’re actually going to be safe if they’re held in the mouth for a long time, next to the gum line. There’s not been research on the interactions of that at all.’”

Oral nicotine pouches, alongside other novel nicotine products such as nicotine toothpicks and nicotine toothpastes that could emerge or have already emerged on to the market, are regulated under the General Product Safety Regulations 2005. Under the regulations, there is no current age of sale for retailers to impose, so these products are legally being bought by those under the age of 18, though the Bill will help to resolve that. Nicotine products are also not regulated by the Medicines and Healthcare products Regulatory Agency, because no medical claims are made and they are not an alternative to an authorised medical product. They are not being used as a medical prescription stop smoking device, but are sold more as a recreational form of nicotine by tobacco producers, who see their market in tobacco shrinking and want to find another way to addict the next generation of people to nicotine, thereby removing their choice and potentially damaging their health.

We have seen social media and website, content and brand advertisements promoting nicotine pouches as performance enhancers for gaming and sport. We have seen the promotion of JTI’s Nordic Spirit pouches at music festivals; and Zyn and Velo, which are owned by tobacco companies, run reward programmes allowing consumers to swap empty packets for prizes such as iPads. I hope the Minister can confirm that those will be prevented by the Bill—they will be prevented by legislation if the Minister regulates, as he is given the powers to do by the legislation. We hope that he intends to do so.

The Advertising Standards Authority has tried to control this within current powers; a major nicotine pouch brand implying mood enhancement and stimulation was banned by the ASA in 2021. There is little reliable evidence that nicotine has any performance-enhancing benefits in sports, but a report by Loughborough University in May 2024 found that one in five 5 professional footballers in England currently use nicotine products and that two in five have used nicotine products at least once.

UK survey data shows that nicotine patches are becoming increasingly prevalent in the UK. In 2020, a survey of the UK showed that 2.7% of people had tried nicotine patches, but that had essentially doubled by 2024 to 5.4%, with an increase in popularity among young people, which shows increased awareness among young people; shop displays, bus banners and social media promotion are making them more and more of a problem among young people.

Does this matter? Well, of course being addicted to something one does not want to be addicted to does matter, but what health issues might be caused by these nicotine pouches? According to the impact assessment for the Bill,

“a recent scoping review, found that oral nicotine pouches claimed to be less toxic than cigarettes and deliver comparable nicotine, although data was mainly available from industry funded studies. Despite potentially lower toxicity than cigarettes, oral nicotine pouches still contain nicotine, which”

is still addictive and still

“can have harmful effects. A systematic review considering the harmful effects of nicotine found nicotine to adversely affect various systems within the body including the cardiovascular, renal, respiratory and gastrointestinal systems, it has also been shown to be a carcinogenic.”

--- Later in debate ---

[Andrew Gwynne]

I am grateful to the shadow Minister for moving the new clause tabled by my hon. Friend the Member for Newcastle upon Tyne East and Wallsend.

New clause 5 would introduce a ban on the manufacture and sale of high-strength nicotine products, with the maximum level of nicotine in a pouch set at 20 mg. Unlike nicotine vapes, there is currently no set nicotine limit for nicotine pouches; as we have heard, nicotine strengths vary from 2 mg per pouch to as high as 150 mg per pouch. There is also significant variation in these products internationally.

I am incredibly sympathetic to the arguments from the shadow Minister, from the hon. Member for South Northamptonshire and indeed from my hon. Friend the Member for Newcastle upon Tyne East and Wallsend. It is important to define the correct and safe nicotine level of a nicotine pouch. That is why we are already taking powers in the Bill that would allow the Government to limit the amount of nicotine in a pouch and to ban any other ingredient in a pouch that might be harmful.

We believe that secondary rather than primary legislation is the appropriate way to legislate on these matters, for all the reasons we have already debated. Legislation always has to be flexible enough to be amended based on new and emerging evidence. That allows the Government to set the right level of technical detail to ensure legal clarity. We will therefore consider the matter very carefully in our consultations post Royal Assent. I note that the shadow Minister referred to “if” we decide to use these regulations. Let me be very clear: these are precisely the kinds of things we will be looking at when we are moving like the clappers to get the regulations through.

In addition, nicotine pouches will be covered by all our other measures designed to reduce the appeal and accessibility of such products to children, such as powers to restrict flavours and regulate packaging, as well as those on general advertising. The shadow Minister gave an example of promotions that give out iPads in exchange for empty pouches. We clearly need to look at that specific promotion, but we are confident that it would be banned under the advertising restrictions that we have already debated and agreed to in Committee. I therefore ask her to withdraw the amendment.

[Dr Johnson]

I am grateful for the Minister’s comments. I understand that he is sympathetic. I know that he is going to go like the clappers; “going like the clappers” is apparently an RAF phrase, but I doubt that he is going as fast as a Tornado jet or a Typhoon—[Interruption.] Maybe he will: he is indicating that he might.

[Andrew Gwynne]

I reassure the shadow Minister that on some of these things I am going to go supersonic.

[Dr Johnson]

Hear, hear. However, in reality, regulations take time, and a sonic boom could damage the windows of this beautiful Palace of Westminster.

I do not know where the hon. Member for Newcastle upon Tyne East and Wallsend, who tabled new clause 5, has got the 20 mg figure, but my understanding is that 20 mg is a higher level than we would expect in a cigarette. Anything stronger than a cigarette could certainly not be considered a stop smoking device: it will just get people more addicted to nicotine than they would ever wish.

I will press the new clause to a vote, because I feel very strongly that over time we will see these pouches becoming the latest thing for children to become addicted to, despite the Minister’s best intentions.

Question put, That the clause be read a Second time.

Tobacco and Vapes Bill (Sixteenth sitting)

Caroline Johnson Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

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

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 50, in clause 168, page 120, line 30, after “3” insert

“, save Sections 16 to 18 and Schedules 1 and 2,”.

See explanatory statement to Amendment 51.

Amendment 51, in clause 168, page 120, line 39, leave from “force” to end of line 41 and insert

“on such a date as the Secretary of State may by regulation appoint following the consultation on licensing regulations (see section (Consultation on licensing regulations)).”.

This amendment, together with Amendment 50 and NC6, would require the Secretary of State to consult on licensing scheme regulations before Sections 16 to 18 and Schedules 1 and 2 come into force.

[Dr Johnson]

New clause 6 will introduce a process of consultation and scrutiny of the licensing regulations for the retail sale of tobacco products, when the relevant sections of the Tobacco and Vapes Act come into effect. New clause 6 is designed to ensure that the implementation of the licensing system is transparent and effective.

Subsection (1) lays out the following requirement:

“Within two months of the passing of this Act, the Secretary of State must publish draft regulations for the licensing of retail sale of tobacco products etc in England.”

The Secretary of State says he is working like the clappers, at supersonic speed, so I am sure that that should be more than achievable, but the new clause holds his feet to the fire on timing.

The provision is crucial because it sets a clear and reasonable timetable for the initial stage of the regulatory process. The publication of the draft regulations will provide a starting point for discussions about the rules governing the sale of tobacco, enabling relevant stake-holders, including retailers, public health experts and consumer advocacy groups, to examine responsive proposals. The two-month window allows the Secretary of State to move promptly—like the clappers—while also giving enough time for key groups to review the draft and contribute meaningfully to the conversation.

Subsection (2) further strengthens the consultation process, and it states that after the draft regulations are published, the Secretary of State must publish a call for evidence. This is an invitation for the public, industry participants and experts to provide their view on the proposed regulations. The goal of the call for evidence is to gather insights on the efficacy and suitability of the draft regulations, helping the Government to understand whether the proposals will achieve the intended outcomes and whether they are feasible in practice. Furthermore, the subsection ensures that the Business and Trade Committee will be invited to scrutinise the draft regulations, ensuring that any regulations that are developed are subject to thorough review and are held to the highest standards of accountability.

Subsection (3) requires that within six months of passing this Act, the Secretary of State must lay before both Houses of Parliament a report that responds formally to the evidence gathered through the consultation process, details the Government’s response to the feedback received and outlines any changes made to the draft regulations. In addition, the Government will address any recommendations put forward by the Business and Trade Committee in their scrutiny of the draft regulations.

The report will provide a mechanism for the Government to explain how public input and parliamentary scrutiny have influenced the final regulations, thus reinforcing the transparency and accountability of the process. The report also gives Parliament the opportunity to assess whether the Government sufficiently considered evidence before moving forward with the regulations.

Finally, subsection (4) introduces an important safeguard, and states:

“The Secretary of State may not make an order under section 168(4) bringing Sections 16 to 18 and Schedules 1 and 2 into force until the report specified in subsection (3) has been laid before both Houses of Parliament”.

This ensures that significant changes are not implemented without the proper review, approval and scrutiny of the House.

In summary, the new clause will strengthen the legislative framework of the Tobacco and Vapes Bill by ensuring the licensing regulations on the sale of tobacco products are subject to a thorough process of consultation, scrutiny and formal response. By requiring early publication, gathering public input, inviting parliamentary review and ensuring that no major changes are enacted before proper scrutiny, the new clause guarantees that the regulations will be well informed, balanced and accountable.

It will also ensure that the Minister does indeed go like the clappers, because it gives quite a tight timetable. One of my concerns, which I raised earlier in the debate, was that it would take some time for the regulations to come in. If we allow the time taken to bring in the regulations and consult to drag out, more children and adults will become addicted to these products, and that will be bad for the public health of the nation. The new clause provides a reasonable timetable to ensure the regulations are brought in swiftly, as the Minister has described.

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

It is good to be back after a short lunch break, Mr Pritchard; I trust Members are well nourished ahead of this afternoon’s sitting.

I am grateful to the shadow Minister for this set of amendments. They would require the Government to publish and consult on draft regulations relating to the licensing scheme in England, as set out in clauses 16 to 18 and schedules 1 and 2. The new clause stipulates that those regulations must be published within two months of Royal Assent of the Bill, and that a report on a mandated call for evidence, including a response to the Business and Trade Committee, must be laid before both Houses six months after Royal Assent.

I am sympathetic to the shadow Minister’s desire to move swiftly in this space. It is certainly my intention and the intention of the Government to move at pace—like the clappers, in supersonic fashion—in a whole range of areas. However, as with similar amendments relating to the registration scheme, we believe that new clause 6 would place an unreasonable and impractical constraint on Government. The reality is that to publish the regulations within two months of Royal Assent is simply not feasible, and the new clause does not reflect the processes and stages required for the development of proportionate, appropriate and well-considered regulations.

Development of secondary legislation takes time, and the arbitrary timescales proposed would not enable effective policy development. Forcing the Government to proceed with producing new legislation at the pace that the shadow Minister seeks to stipulate would open the Government up to the risk of creating flawed policy. Creating flawed policy carries clear risks, not least the potential for the Government’s work to be legally challenged, thereby delaying measures either for a further period of time or indeed for good.

The Bill imposes on the Secretary of State a statutory obligation to consult ahead of the introduction of any regulations. Through that process, we will be able to carefully consider views from stakeholders, including the retail sector, in order to build a licensing scheme that supports legitimate businesses while cracking down on rogue retailers.

Finally, to echo points that I have already made, the Bill has been developed in collaboration with colleagues across the United Kingdom, and such close working and close alignment will continue through the development of all secondary legislation. My concern about new clause 6 is that it risks creating inconsistencies with licensing regimes elsewhere, particularly in Wales and Northern Ireland. We are approaching this together, and that is why I ask the shadow Minister to withdraw the new clause.

--- Later in debate ---

[Dr Caroline Johnson]

We have learned from the Minister that terms such as “like the clappers”, “quickly”, “in due course” and “soon” all mean a timescale longer than publishing a draft within two months and the final version within six. In practice, that means the concerns I have expressed about the Bill are true. This will take a long time, and the Minister’s “soon” is not really soon enough.

I understand the Minister’s concern that if he does not get the work done in time, it will cause the Government problems, but the answer to that is simply to get the work done in sufficient time. The Minister has been clear all along that this is an urgent public health measure. Two thirds of the people who get addicted will die as a result of the tobacco they are consuming. Not to agree that he must produce draft regulations within two months, when he knows much of what the consultation will say—indeed, the previous Government consulted on much of it anyway—is to say that the Government will move slowly and not like the clappers at all.

I understand that he is concerned about inconsistency between the nations, but he has not expressed such concern before. In fact, throughout our debate, when we have discussed the nations, we have spoken repeatedly about respecting devolution and the ability of other nations to go at different paces, do different things in different ways, and impose different fines and other penalties.

[Andrew Gwynne]

I am not sure whether it is because of selective amnesia, or whether the shadow Minister has had a really good lunch, but she seems to have entirely forgotten our previous debates. We have debated the licensing regime at length, and I made it perfectly clear to the whole Committee that Scotland is doing its own thing because it believes that that works well for Scotland, but that England, Wales and Northern Ireland would be moving in lockstep on this. If she was not aware then, she should be now.

[Dr Caroline Johnson]

I thank the Minister for making my point, which is that some parts of the United Kingdom are choosing to do this in a different way.

[Andrew Gwynne]

We are doing this together.

[Dr Johnson]

But there is nothing to stop the Union doing it together. In the event that England chose to do things at a particular pace, as it has a right to do, the Scots have already chosen to do things differently, as is their right, and the Welsh and the Northern Irish could then choose to do things at the same pace—the same appropriately quick, or reasonable, pace—or they could decide that they want to go more slowly. That would be up to them. What is in the Minister’s control is to decide that he is prepared to act at a suitable pace to ensure that these regulations come into force as properly and as quickly as possible, including with scrutiny from the House.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I appreciate the shadow Minister’s zeal in desiring to see this Bill on the statute book as quickly as possible, and in many ways I agree with her. Following on from what my hon. Friend the Minister has said, my concern is that putting in something that is perhaps impractical, and may have unintended consequences, might undermine the good intention that no doubt underpins her new clause.

For example, if new clause 6 became part of an Act and, for whatever reason, the draft regulations were not published within two months, and therefore the Government failed to meet the requirement in subsection (1), would subsection (4) not mean that clause 168(4) could never be implemented? Would that not have the opposite effect to what I think she is trying to achieve?

[Dr Johnson]

I thank the hon. Member for his intervention, but the answer is no, because a report has to be laid before both Houses of Parliament. If the Government were late in doing that, they would have breached the requirement in the clause and demonstrated themselves to be slow off the blocks, but, as I read it, that would not stop the other measures being brought into place.

We are trying to encourage the Government to move more quickly. My worry is that much of the Bill consists of provisions that give the Secretary of State the capacity to make regulations to do a whole range of things, most of which are very good and will help to protect public health—if he does them. I do not doubt the Minister’s zeal to ensure that the Secretary of State does so, or indeed the Secretary State’s desire to do so, but the fact is that the Government seem to have all sorts of priorities, and if this one gets put on the back burner, it could be many years before any of this comes into force.

The Minister is shaking his head, but what we are suggesting here begins after Royal Assent. Bear in mind that the Bill still has to move to Report, go to the House of Lords and then come back for Third Reading, so it has a long way to go through this Parliament before we get to the start of the two-month period. It does not start today, when we finish line-by-line scrutiny in the House of Commons Bill Committee. Even if we said that it would start two months from now, with six months until the report was published and the regulations put forward in their final form, it would be closer to a year by the time we got through all the parliamentary scrutiny, so the Minister has much more time even than the new clause would suggest.

If we put two-month and six-month markers into the legislation, the actual time involved would be more than two months and more than six months, because of the further parliamentary stages that the Bill must go through before we even get to Royal Assent. Those time periods start from the point at which the Bill becomes law, so I think the Minister has more than enough time, particularly if he is going to go supersonic, like the clappers.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Dr Johnson]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 52, in clause 169, page 121, line 21, after “etc)” insert—

“, save Sections 95 to 98,”.

See explanatory statement to Amendment 53.

Amendment 53, in clause 169, page 122, line 21, at end insert—

“(1A) Sections 95 to 98 (Registration and information requirements) come into force on such a date as the Secretary of State may by regulation appoint following the consultation on Registration and information requirements (see section (Consultation on Registration and information requirements)).”

This amendment, together with Amendment 52 and NC7, would require the Secretary of State to consult on registration and information requirements before Sections 95 to 98 come into force.

[Dr Johnson]

The purpose of new clause 7 is to ensure that the regulations surrounding tobacco products are both well informed and effective before they come into force. Subsection (1) requires the Secretary of State to publish draft regulations concerning the registration and information requirements for tobacco within two months of the passage of the Act. This provides an initial, timely step towards addressing these critical regulatory areas and ensures that the Government take swift action to establish clear guidelines for the tobacco industry, particularly regarding registration and information requirements. Again, we are trying to avoid delay. The two months do not start until the Act has passed, which means that the deadline is significantly more than two months from now—more than enough time for the Minister to produce the draft regulations, particularly given that, I suspect, much of the work is done already, and some of it was done by the previous Government anyway.

Subsection (2) requires the Secretary of State, following the publication of the draft regulations, to issue a call for evidence. That call for evidence will seek views on the efficacy and suitability of the draft regulations from a wide range of stakeholders, including industry experts, public health organisations and other interested parties. Additionally, the Secretary State is required to invite the House of Commons Business and Trade Committee to scrutinise the draft regulations. This subsection aims to ensure a transparent process that involves detailed external scrutiny of proposed regulations, helping to identify any potential issues or improvements before they are finalised.

Subsection (3) mandates that six months after the passage of the Act—I should mention again that that is more than six months from now—the Secretary of State must lay a report before both Houses of Parliament setting out the Government’s formal response to the evidence submitted in response to the call for evidence under subsection (2), as well as any recommendations made by the Business and Trade Committee. This requirement ensures that the Government are held accountable for considering all feedback and making any necessary adjustments to regulations before they are implemented. It promotes transparency and enables Parliament to monitor how the Government have addressed public and expert input.

Subsection (4) specifies the Secretary of State cannot make an order under clause 169(1A) bringing clauses 95 to 98 into force until the report mentioned in subsection (3) has been laid before both Houses of Parliament. That report sets out the Government’s response to consultation and any recommendations from the Business and Trade Committee, if there are any. Again, this is trying to make sure that the Government act at appropriate speed to get things done.

[Mr Barros-Curtis]

I repeat my point, perhaps inarticulately made earlier, about new clause 6, which applies to new clause 7. If subsection (4) said “any report”, my point might not stand, but it says

“the report specified in subsection (3)”.

If the Bill passed and the report was for some reason laid not six months later, but nine months later, would that not mean, because of the way the new clause is drafted, that an order under clause 169(1A) could not be implemented by the Secretary of State, thereby hampering their ability to bring about some important public health legislation?

[Dr Johnson]

The only thing that would inhibit the Government is not getting the work done in time—if they did not hand their homework in on time. We have all been at school and we know that if we do not hand our homework in on time, it causes us trouble. The simple fact is that the purpose of the clause is to get the Government to do their work in an appropriate time frame. So that is the point—we do not want to create a whole load of capacity in this legislation for the Government to do stuff only for them to put it on the back burner because they are too busy, do not have the time and do not see it as a priority. Legislating to have the power to do things and doing them are not the same thing. The purpose of this new clause is to make sure that the Government get them done.

[Andrew Gwynne]

I am grateful to the shadow Minister for her new clause 7. It would require the Government to publish and consult on draft regulations relating to the registration and information requirements set out in clauses 95 and 98. It stipulates that these regulations must be published within two months of Royal Assent of the Bill, and that a report on a mandated call for evidence, including the response to the House of Commons Business and Trade Committee, must be laid before both Houses six months after Royal Assent.

Again, I am sympathetic to the shadow Minister’s desire to move swiftly in this space, but as with her similar proposals relating to licensing, this new clause would place an unreasonable and impractical constraint on the Government. To draft and publish these regulations within two months of Royal Assent is simply not feasible, and the new clause does not reflect the required processes and stages for the development of proportionate, appropriate and well-considered regulations. Development of secondary legislation takes time, and the arbitrary timescales proposed would not enable effective policy development.

The Bill imposes on the Secretary of State a statutory obligation to consult on the appropriate parties ahead of introducing any regulations on this issue. Through this process, we will be able to carefully consider views relating to the existing notification schemes for tobacco products and nicotine vapes, as well as to get views on how a future registration scheme might work, and, importantly, use that input to shape and draft the required regulations. Forcing the Government to proceed hastily with producing new legislation opens up the risk of creating flawed policy. Creating flawed policy creates clear risks, not least the potential for the Government’s work to be legally challenged. I know that that is not what the shadow Minister wants, so I therefore ask her not to push her new clause to a vote.

[Dr Johnson]

I think it is inevitable that much of this will be legally challenged, because the effect of the legislation is to hamper severely an industry that has a lot of money. They are going to challenge every dot and comma of it—I am quite sure of that. The purpose, however, of this new clause is to get the Government to move at speed. The Government have been in power for more than six months now, so they cannot say that they are not capable of producing draft guidelines for regulations within six months of the date of Royal Assent, which is many weeks from now, given that they have managed to publish the Employment Rights Bill, the Renters’ Rights Bill, the Finance Bill and various other things. I do not understand why the Minister is not keener to get these things done.

I will therefore push the new clause to a vote. Yes, the Minister could get himself in trouble if he did not work quick enough, but I have every confidence that if this new clause were enacted, the Minister would—like the clappers, at supersonic speed—be more than capable. I have every confidence that the Minister is more than capable of drafting regulations within the time available if he is forced to do so.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Dr Johnson]

I beg to move, That the clause be read a Second time.

New clause 8 is designed to require the Government to produce annual reports detailing the scale of the illegal sale and availability of tobacco and vaping products. Subsection (1) would mandate the Secretary of State to prepare reports on the scale of illegal tobacco and vaping products in the UK. The reports would focus on providing a detailed overview of the prevalence and impact of illegal, counterfeit and contraband products in the market. Subsection (1) would also require the Secretary of State to lay a copy of each report before the Houses of Parliament, ensuring transparency and parliamentary oversight.

Subsection (2) outlines the specific information that each report would have to include. It stipulates that the reports would have to cover the estimated amount and value of illegal, counterfeit and contraband cigarettes and other tobacco products available for sale in the UK; the estimated amount and value of illegal or non-compliant vapes available for sale; a breakdown of the actions taken by the Government and relevant authorities to tackle the illicit sale of tobacco, tobacco products, vaping devices and vaping products; and an assessment of the impact that the illicit trade of tobacco, vapes and nicotine products had been having on public health and safety. That is crucial to understanding not just the scale of the problem, but the broader implications for public health.

Subsection (3) sets out a requirement for the first report to be laid before both Houses of Parliament within 12 months of the passing of the Act. That would ensure that the Government addressed the issue of illegal tobacco and vaping products promptly after the Bill was enacted. Subsection (4) establishes that each subsequent report would have to be laid

“annually beginning with the day on which the previous report was laid.”

That annual cycle would ensure that ongoing monitoring of the illegal trade, providing a regular and up-to-date picture of the situation in the United Kingdom.

In conclusion, new clause 8 would establish a consistent and systematic process for reporting on the illegal sale and availability of tobacco and vaping products in the UK. By producing detailed annual reports assessing the scale of the illicit trade and its impact on public health and safety, the Government would be held accountable for addressing this issue. Furthermore, the new clause would provide Parliament with the necessary information to scrutinise the actions taken by the Government to combat the illegal trade, promoting transparency and informed decision making.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. New clause 8 would require the Government to produce annual reports on the scale of the illegal sale and availability of tobacco and vaping products and the impact on public health and safety. I am sympathetic to the hon. Lady’s aim to ensure that the benefit and progress made as a result of our measures is known and seen by the public. However, this new clause is not needed, given that the Government already publish data on the illicit tobacco market and we will be doing the same for vapes following the introduction of the new vaping products duty.

On tobacco, His Majesty’s Revenue and Customs already regularly provides data and reports on various aspects of the illicit trade. For example, HMRC periodically publishes the tobacco tax gap report, which estimates the difference between the theoretical duty liability and the actual amount of tobacco duty collected by HMRC. That report also estimates the market share of illicit tobacco. HMRC also publishes the annual outputs for tackling tobacco smuggling, which include figures on tobacco seizures, including the number of criminal prosecutions and amount of civil penalties issued. National Trading Standards, too, provides public reports and updates related specifically to enforcement activity, which include the illegal sale and importation of vapes and related products. Additionally, HMRC intends, following the introduction of the vaping products duty, to publish annual estimates of the size of the illicit market, using tax gap data as well as data on activity targeting vaping duty fraud, such as the number of seizures.

It is important that enforcement agencies produce the estimates and figures on enforcement activity, given that that is their area of expertise. An annual report from the Secretary of State would only duplicate that information. For that reason, I ask the hon. Lady to withdraw the new clause.

[Dr Johnson]

I thank the Minister for his detailed response to this new clause. Can he confirm that the reports are produced on an annual basis, and will continue to be produced on that basis by both relevant authorities through this Parliament?

[Andrew Gwynne]

It is our intention that the reports will be published in accordance with the mechanisms with which they are published now, with the frequency that they are now published. Therefore, we do not need this new obligation on the Secretary of State.

[Dr Johnson]

I take the Minister at his word, and beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

Prohibition on manufacture and retail of high-capacity count vaping devices

“(1) The Secretary of State must produce regulations relating to the design, manufacture and sale of vaping devices and products that ensure—

(a) refill containers cannot be attached to a vaping device post-purchase to increase a device’s overall capacity during use, or allow for multiple pods to be attached at the same time to a device to increase its functional capacity beyond a 2ml limit.

(b) devices only have a single pod or tank that does not exceed 2ml limit.

(c) refill devices do not exceed a 10ml capacity and must be sold separately and not in the form of a clink-on tank.

(2) A person commits an offence if the person—

(a) manufactures, designs for manufacture, imports or supplies for sale a vaping device that is contrary to the regulatory requirements set out in subsection (1).

(b) sells or retails a vaping device that is contrary to the regulatory requirements set out in subsection (1).

(3) A person who is guilty of an offence under paragraph (2)(a) is liable on summary conviction to a fine of £20,000.

(4) A person who is guilty of an offence under paragraph (2)(b) is liable on summary conviction to a fine of £10,000.”— (Dr Johnson.)

This new clause would seek the introduction of regulations and new offences to prohibit the manufacture, design and retail sale of high-capacity count vaping devices.

Brought up, and read the First time.

[Dr Johnson]

I beg to move, That the clause be read a Second time.

New clause 9 is designed to regulate the design, manufacture, and sale of high- capacity vaping devices, specifically addressing concerns around devices that allow for an increased capacity beyond a specified limit. The proposal seeks to ensure that vaping products sold in the UK remain within acceptable safety standards and prevent devices from becoming overly powerful or difficult to control. The clause places limits on the size of pods, tanks, and refill containers for vaping products.

Subsection (1) introduces specific requirements regarding the design, manufacture, and sale of vaping devices and products. It mandates that vaping devices sold within the UK should not allow for refill containers to be attached to a device post purchase to increase its capacity beyond the legally accepted limits. That part of the clause ensures that devices can only hold a single pod or tank that does not exceed a 2 ml capacity. This is a critical public health measure, because larger capacities could encourage excessive consumption of nicotine, posing potential risks to users, particularly younger people or those who may be more vulnerable to nicotine addiction.

It is worth pointing out that in line with the vote we had this morning on nicotine pouches of very high strength, if vapes are there to help people to stop smoking—as the industry says they are—there is no requirement for those devices to be stronger in nicotine than a cigarette is. Otherwise the addiction to nicotine will go in precisely the wrong direction.

Furthermore, subsection (1) ensures that refill devices, such as e-liquids, must not exceed a 10 ml capacity. Importantly, these refill devices must be sold separately, preventing sellers from marketing click-on or multi-pod systems that could encourage users to exceed the capacity limits in a single vaping session. By introducing the restrictions, the clause aims to maintain control over how vaping products are consumed and reduce the potential harms associated with unregulated usage.

Subsection (2) establishes that it is an offence for anyone to manufacture, import, supply for sale, or sell a vaping device that does not conform to the regulations outlined in subsection (1). The provision is designed to create accountability within the vaping industry, ensuring that businesses involved in the design, production, or sale of vaping products are held to strict standards. The penalties outlined in the clause will deter manufacturers or retailers from attempting to circumvent the capacity restrictions for financial gain.

Subsection (3) specifies the penalties for manufacturers, designers, or importers who are found guilty of violating the regulations set out in subsection (1). Specifically, those found guilty of manufacturing or importing non-compliant vaping devices could face a fine of up to £20,000 on summary conviction. That substantial fine acts as a deterrent against non-compliance by manufacturers, encouraging them to adhere strictly to safety standards.

Subsection (4) establishes penalties for retailers who sell non-compliant vaping devices. If a retailer is found guilty of selling a vaping device that does not meet the specified requirements, they could be fined up to £10,000. The tiered nature of the fines, with higher penalties for manufacturers and lower penalties for retailers, reflects the differing levels of responsibility in the supply chain.

New clause 9 introduces important regulations to prevent the manufacture, sale, and distribution of high-capacity vaping devices that could pose greater health risks. By limiting the size of tanks, pods, and refill containers, and imposing penalties for non-compliance, the clause seeks to protect public health and prevent the misuse of vaping products.

[Andrew Gwynne]

Again, I am grateful to the shadow Minister for bringing this important discussion to the Committee. The provision would regulate high-capacity count vaping devices, which we understand to mean so-called “big puff vapes”, or devices that provide more than 600 puffs, by ensuring that the Secretary of State regulates the amount of liquid in a tank and ensures that the refill container cannot be connected to the vape device, creating more liquid and thus more puffs.

Although I empathise with what the shadow Minister is trying to do, the Bill already provides powers that allow us to regulate for the size of a tank or refill container and the amount of liquid that can be included, as well as powers to standardise vapes and to further restrict liquid availability. In addition, the Bill contains powers that allow us to regulate the amount of nicotine in a puff, so as to restrict not only the amount of nicotine in the tank, but the amount of nicotine that can be emitted in the vapour.

We have a duty to consult on ways in which vapes and vape devices can be standardised before we make regulations. This will ensure that the right decisions are taken, based on evidence, which will reduce the legal risk to Government from any future litigation.

Moreover, many so-called big puff vapes currently on the market will be caught by the upcoming ban on single-use vapes, which will be led by the Department for Environment, Food and Rural Affairs and comes into force on 1 June, because most of them are disposable products and do not have replaceable coils.

It is for these reasons that I ask the shadow Minister to withdraw her new clause.

[Dr Caroline Johnson]

The key thing is that although the Bill does have powers for all that to happen under regulation, we have already established that the regulations will take more than two months to write and more than six months to review, even after the Bill has gained Royal Assent in a few months’ time, so we will probably be sitting here next year with no restrictions at all on vapes, because the Government will not have written them. Therefore, I think it is important that in the meantime we try to use the Bill to make the most clear and important changes, including the size of the tank limit.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Andrew Gwynne]

This clause outlines the territorial extent of the Bill: part 1 applies to England and Wales, part 2 to Scotland, part 3 to Northern Ireland, and parts 4 to 6 and 8 to the entirety of the United Kingdom. Part 7 contains only amendments to existing legislation, and therefore, by virtue of subsection (1), its extent does not need to be explicitly stated. This is a standard clause that helps the measures in the Bill to function effectively; I therefore commend it to the Committee.

[Dr Johnson]

As the Minister says, clause 167 provides for the extent of the Bill. I am particularly interested in the way that part 3 extends to Northern Ireland. As part of the Windsor framework, Northern Ireland is subject to 283 Euro laws, including the EU’s tobacco directive. Article 24 of the tobacco directive says:

“Member States may not…prohibit or restrict the placing on the market of tobacco or related products”,

apparently contradicting this Bill.

--- Later in debate ---

[Andrew Gwynne]

Of course that has been considered. It is the responsibility of the United Kingdom Government to ensure that any legislation appertaining to Northern Ireland is compatible with the Windsor framework—that is clear. In drafting the Bill, the Government have taken into account all our domestic and international obligations. It has been put together following full consultation with Scotland, Wales and Northern Ireland, and we intend it to be United Kingdom-wide legislation for a smoke-free UK, in accordance with our international obligations.

[Dr Johnson]

I understand that that is the Minister’s intent—indeed, it would be my intent to see people in Northern Ireland, as part of our great country, be as healthy as the rest of those in the United Kingdom—but intent is not enough to make things happen, in the same way that the Government saying they will go for growth does not make it happen, particularly if they do things that have the opposite effect. What is the legal position on which the Minister believes the clause will stand?

[Andrew Gwynne]

The Bill is and will be, as an Act of Parliament, in full accordance with our international obligations. We will have a smoke-free United Kingdom, and the measures appertaining to Northern Ireland fit within our international and domestic obligations under the Windsor framework.

Question put and agreed to.

Clause 167 accordingly ordered to stand part of the Bill.

Clause 168

Commencement: Parts 1 to 4

--- Later in debate ---

[Andrew Gwynne]

I am grateful to my hon. Friend for her intervention. Perhaps it shows that history does matter and we can learn from it. Never mind Henry VIII powers: perhaps when we bring forward the regulations, we will have papal powers to go further.

[Dr Johnson]

As the Minister is aware from my previous contributions, I am delighted to see both the Bill’s passage and that the Government have taken on board some of my amendments to the Conservative Bill, which was similar. I very much enjoyed the history lesson from the hon. Member for City of Durham and hope that the Minister’s version of “like the clappers” will be just as quick.

[Andrew Gwynne]

I am grateful to the shadow Minister. We have been greatly entertained by her history lessons—I now know more about snuff than I ever wanted to. We have had tradition. We spent such an inordinate amount of time on clause 1: I thought we would never reach this stage. We were certainly not going like the clappers or supersonic at the start. I suspect that we have heard a large amount from ChatGPT—[Interruption.] Well, I think perhaps my hon. Friend the Member for City of Durham certainly did a good google.

[Dr Johnson]

The Minister credits me with more tech savvy than I have. ChatGPT is well outside my portfolio.

[Andrew Gwynne]

Well, if we have not heard from ChatGPT, we have certainly had, through the Institute of Economic Affairs, a bit of ChatSHT.

--- Later in debate ---

[Andrew Gwynne]

rose—

[Dr Johnson]

I think there is another person to whom thanks need to go on the record, and that is my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak). Let us not forget that while this Bill is coming through now, the vast majority of it is similar in content to—in some cases, it is entirely verbatim—the Bill that came through a similar Committee last spring, thanks to the visionary leadership of my right hon. Friend.

[Andrew Gwynne]

First, I thank my hon. Friend the Member for Dartford for his thanks. It would be remiss of me not to pay tribute to the former Prime Minister. When we were debating clause 1—all those many, many moons ago—I said that it took a lot of political bravery for a Conservative Prime Minister not just to go as far as he did, but to announce it at Conservative conference. I know from some of my Conservative friends that it raised significant eyebrows within that conference hall, but it was the right thing to do. That is why the Labour Opposition supported this legislation in the last Parliament. We would have loved to have seen it taken through the wash-up procedure before the general election, but that was not part and parcel of the deal that was put.

However, we are here today with this Bill, which includes many of the things that the shadow Minister wanted to have included in her Bill. What is transformative is that once what we have taken through Committee today—we have Report and Third Reading to go—gains Royal Assent, it will ensure that no child born after 2009 will legally be able to be sold tobacco products ever again. We are stopping that conveyor belt, as I have described it, for the tobacco industry, and through stop smoking services and support we are coming after the market share that they have protected. We are going to make sure that vapes are never promoted, advertised or displayed in a way that will encourage children to take up vaping.

The Bill is a landmark and it is life-changing. In just 25 years’ time, if the Government’s impact assessment is correct, the smoking prevalence of people under the age of 30 will be near to zero. It started here, with this Bill. Well done, and thanks to all Members.

Tobacco and Vapes Bill

Caroline Johnson Excerpts

Report stage & 3rd reading
Wednesday 26th March 2025 Commons Chamber

[Madam Deputy Speaker (Judith Cummins)]

I call the Opposition spokesperson.

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

It is now a truth universally acknowledged that smoking is bad for one’s health. It is the leading cause of preventable death in this country, responsible for over 80,000 deaths every year. When we say that number, it is easy to allow it to trip off the tongue as another statistic without really realising just how many people it represents. For each of them—such as my Nana Burton, who was a smoker and who died of lung cancer—there is a personal story of damaged health and often an early and preventable death.

The Conservative party introduced a Bill based on a similar premise to this one in the last Parliament, although the Government have made significant changes since to the legislation, including taking a power that could be used to ban smoking and vaping in pub gardens, as well as a licensing scheme for tobacco products.

On amendment 85, while we have received repeated assurances that the Secretary of State intends to use the measures in the Bill only to improve public health, we must still examine whether the legislation is proportionate and reasonable. As far as I can see, it gives the Secretary of State enormous powers to extend the smokefree legislation to any place with minimal oversight and without needing to provide a reason. There were whispers last summer that the Government were considering banning smoking in pub gardens, before they hastily withdrew this provision in the face of public backlash. If only they would withdraw more of their policies in the face of public backlash, because perhaps then we would not be in the situation we are in now.

The Bill empowers the Secretary of State to extend smokefree and vape-free regulations to more places—essentially, to any place—with the aim of reducing exposure to second-hand smoke and promoting public health. However, on Second Reading the Government did not accept our amendment that it should apply only to places that have a provable significant risk to public health to justify such a ban. For that reason, I commend amendment 85 once again, which would restrict the Secretary of State to being able to designate only open or unenclosed spaces outside a hospital, a children’s playground, a nursery school, a college or a higher education premises as a smokefree area. Those are the areas the Secretary of State has said he wants to target, and the amendment would prevent any targeting of other areas, such as pub gardens, by the back door. While he claims that that is not his intention now, that may not remain the case for the rest of this Government’s time in office, nor indeed for any future Government. That is the risk in allowing these measures to stand, and for those reasons I encourage the House to support amendment 85.

3.15 pm

On new clause 18 and amendment 89, the new Bill also gives powers to the Secretary of State to introduce a new licensing scheme for retailers selling tobacco, vaping or nicotine products. However, we know that licensing schemes will come at a cost, to businesses and local authorities that will administer them, and in enforcement. That does not make it the wrong thing to do, but we would need to make sure that any licensing scheme is not excessively burdensome or expensive. New clause 18 and amendment 89 would therefore require the Government to consult on the new licensing scheme for tobacco sales before it came into force. That would mean that the views and impact on businesses including small businesses are heard, and ensure that councils and trading standards have the capacity to deliver such a scheme. Ultimately, there is a balance to strike between the requirements on business and public health, and a public consultation would ensure that the Government are more likely to get that balance right.

On new clause 19, another concern we have heard from those who oppose the Bill is about the impact that the legislation would have on the black market. His Majesty’s Revenue and Customs estimates that the illicit market in tobacco duty and related VAT was £2.8 billion in 2021-22, with the tobacco duty tax gap remaining broadly unchanged since 2015, while in 2023 the Chartered Trading Standards Institute estimated that a staggering one in three vape products were non-compliant. Given warnings that increasing the age requirement for tobacco products and prohibiting more vaping could expand the black market economy further, it is sensible to take precautions to tackle the issue.

[Sir Ashley Fox (Bridgwater) (Con)]

Specifically on new clause 19, does my hon. Friend agree that it is inevitable that the generational smoking ban will lead to an increase in the illegal tobacco market and that that is a highly regrettable consequence of the Bill?

[Dr Johnson]

That is certainly a significant possibility, and that is the reason for moving the amendment, as my hon. Friend will understand.

Illegal products can include smuggled and counterfeit cigarettes, vapes with nicotine levels way above the legal limits, and products containing illegal and potentially dangerous ingredients. They can be more harmful and may not include the appropriate labelling requirements and health warnings that genuine products have to carry. Regardless of whether colleagues support or oppose this Bill as a whole, I am sure we all agree that a black market is unacceptable. We have therefore put forward an amendment that would require the Government to produce annual reports on the rate of sale and availability of illegal tobacco and vaping products and their impact on public health and safety.

[Sir John Hayes (South Holland and The Deepings) (Con)]

My hon. Friend has rightly taken a fierce line on illegal tobacco sales in Lincolnshire. Does she acknowledge that those illegal tobacco sales are often linked to serious and organised crime? The shops that sell them are often linked to money laundering—and are usually foreign owned, by the way—and the damage they do is extreme. Will she join me in urging further action by Government to support trading standards and the local police, who are doing such a fine job in trying to clamp down on this industrial-scale crime?

[Dr Johnson]

As is usually the case, I find myself agreeing with my right hon. Friend, and that is of course why we have tabled the amendment: it will give us the evidence that we and the enforcement authorities require to make sure that the black market is reduced.

[Jack Rankin (Windsor) (Con)]

Does my hon. Friend accept that there is not a risk that a black market will open, because a significant black market in tobacco already exists? In 2021, some 23.6 billion cigarettes were sold under duty, whereas in 2024 the figure was 13.2 billion, a 44% reduction. Yet an Action on Smoking and Health survey has found that smoking has reduced by only 0.5%. The black market is already here—it is not a new thing that will be created—so the Bill presents an even greater risk.

[Dr Johnson]

My hon. Friend makes a fair point. We know the black market exists, but the amendment would enable the Government to understand the scale of that black market and the changes in it, so that regulation could be enforced more robustly.

On amendment 90, as currently drafted the legislation will ban all forms of advertising of nicotine and non-nicotine vapes, nicotine products and sponsorship that promotes those products. Adverts will no longer be permitted on posters, billboards or the sides of buses, and sports teams will be prevented from being sponsored by a vaping company. As a Member of Parliament and a children’s doctor, I have been very concerned by the sharp increase in children addicted to vaping and, more recently, the other nicotine products such as pouches that have begun to flood the market. Schoolteachers have reported that children are unable to concentrate or even to complete a whole lesson without visiting the bathroom to vape.

Action to tackle the rise in vaping is welcome, and I support steps that restrict the appeal of vapes to young people, including through flavours and packaging. However, as the Minister mentioned in her opening speech, vaping can be a useful smoking cessation tool for adult smokers trying to quit; in my view, that should be their only purpose. Within the context of proposed advertising restrictions, amendment 90 would ensure that vapes that are targeted solely as a quit aid, to help adults stop smoking, can continue, in recognition of their role in bringing down smoking rates.

Finally, new clause 20 would introduce a requirement on online vaping products to operate an age verification policy, as is currently the case in Scotland. Whether someone is buying vaping products online or in store, robust provisions must be in place to ensure that the purchaser is of legal age, and businesses must have a robust policy in place. As we have seen through recent tragedies, the age verification process for online sales on age-restricted products has not always been effective. The new clause would be an important step towards protecting children from accessing products online that they should not be able to buy.

In closing, the Conservative party has a strong record of action on tobacco control. It was under a Conservative Government that plain packaging was introduced for all tobacco products and that minimum pack sizes for cigarettes and rolling tobacco were introduced—policies that have been demonstrably effective at reducing smoking rates. I have personally campaigned passionately on the issue of tobacco and vapes for over two years, and I am pleased that some of my original amendments to the Bill have made it beyond Committee stage and are with us today. I was also glad to see some of the new Government amendments introduced on Report that were born of debates we had in Committee, which have strengthened the Bill.

Our amendments are designed to highlight some of the difficulties in the Bill. We oppose the Government’s power-grab—creating powers to ban smoking and vaping wherever they choose by regulation, but without consultation or enough notice. We have concerns about how the Bill will operate in practice, especially the burden on small businesses, and the potential for unintended consequences, such as a growth in the black market for tobacco products, so we ask that the Government seriously consider our amendments today.

[Preet Kaur Gill (Birmingham Edgbaston) (Lab/Co-op)]

I welcome the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for West Lancashire (Ashley Dalton), to her role. It is a great pleasure to speak in the debate and to support this genuinely world-leading piece of public health legislation, which will help to consign smoking to the history books.

Unless we act to help people to stay healthy, the rising tide of ill health in our society threatens to overwhelm our NHS. Paring back public health, as the last Government did, was the definition of penny wise, pound foolish. It is vital that we tackle the causes of ill health, not just the symptoms, so that we can save the taxpayer billions of pounds and, most importantly, save lives.

We know that prevention is better than cure. As we have heard today, smoking remains the single biggest preventable cause of ill health in our country, causing 80,000 deaths a year. It is responsible for one in four cancer deaths, and it is a factor in over 70% of lung cancer cases. In my own constituency alone, nearly 12,000 people smoke. They are more likely to leave the workforce due to ill health. Many will suffer strokes, heart attacks and conditions such as chronic obstructive pulmonary disease. On average, they will lose 10 years of life expectancy.

However, the real tragedy is how many thousands of those smokers will have started when they were children, when they did not know any better, and have simply never been able to quit. Most smokers report wishing that they had never started, which is why it is incumbent on us all to support this legislation to help stop the start. According to ASH, in my constituency alone the cost of smoking exceeds £90 million every year, including £56 million in lost productivity, £4 million drained from the NHS and £30.7 million in social care. The costs of smoking to our society are enormous, and that is why it is time to stub it out.

Even today, in 2025, hundreds of young people a day take the first drag of a habit they will never manage to kick, and will regret for the rest of their lives. I was proud to lead the Opposition’s response to the last Government’s Bill through Committee in the last Parliament and, as I said then, there is no freedom in addiction. It is a shame that the leader of the Conservative party allowed her ideology to blind her from that fact when she voted against the legislation in the last Parliament, and against this Bill in this one. Where the last Government failed to get their Tobacco and Vapes Bill over the line, this Government will get the job done.

I am proud that the Government have vastly improved on the legislation that the previous Government drew up. First, the introduction of a new licensing regime to cover tobacco and nicotine products, including vapes, is hugely welcome. That was a key recommendation of the Khan review in 2022, which the last Government largely ignored and which retailers and the public overwhelmingly support, according to surveys conducted by ASH. The status quo, where there was no requirement to obtain a licence to sell those products, is a major gap in enforcement, particularly when we consider that the sale of alcohol is licensed, while nicotine and tobacco are not.

Secondly, I am pleased that the Government are taking forward an amendment I tabled in Committee during the last Parliament, for the introduction of £200 on-the-spot fines for retailers selling products to under-age people. In 2019 to 2020, 50% of the councils that undertook test purchasing reported that cigarettes or tobacco products were sold to children who were under 18 in at least one of their premises. That proves that the current regime is not enough of a deterrent. The introduction of new on-the-spot fines, which are double the amount proposed by the previous Government, will be much easier to issue and much harder to ignore. Does the Minister agree with me that double the fine is double the deterrent?

Thirdly, I commend Ministers on the action they are taking on vapes. Under the last Government, youth vaping trebled in two years. An estimated one in three vapes on the market were illicit, and products often contained harmful chemicals, heavy metals or even drugs. Gaping loopholes were left to sit on the statute book for years, putting children at risk. The promulgation of dangerous illicit vapes in shops, schools and on our streets is a real concern. Recently, in Birmingham, trading standards officers and the police led raids on retailers under Operation Cloud, when they seized nearly £6 million-worth of illicit vapes, tobacco and drugs. One raid alone, the biggest ever in Birmingham, clawed £1 million-worth of goods out of criminals’ hands. That shows the extent of the problem of the illicit market and the incredible job that council trading standards teams do to keep the public safe.

I thank the Government for getting behind trading standards with a £10 million boost to support their work next year. In particular, I welcome the new Government’s introduction of clauses to this Bill to set up a testing regime for vapes, a proposal that I championed in the last Parliament. It is shocking that under the current rules, unlike with tobacco, there is no testing regime for vaping products. That means that dodgy products can be rubber-stamped by the British regulator and wind up on our shelves, undermining the valuable enforcement work that trading standards do to identify and seize un-notified products.

As testing of vapes marketed at young people has shown, a significant proportion of vaping products are not what they say they are. Some market themselves as 0% nicotine when they are not, leading to accidental addictions; others contain harmful substances, such as heavy metals and even anti-freeze, as evidenced by research undertaken by Inter Scientific. That is why during the last Parliament I tabled amendments that would have established a new testing regime for vapes. Unfortunately, the Conservatives voted them down. I commend Ministers for introducing powers that the previous Government snubbed. Nearly 3 million people have quit smoking using vapes. Clearly vapes have a role to play in the transition to a smokefree future, but if they are to be used as stop-smoking aids, we need confidence that the products people buy are safe, which is what routine testing would do.

Finally, I commend the Government on the amendments that have strengthened this Bill; they close the loopholes on vape vending machines and ban vape advertising, promotions and sponsorships. The new clauses will ensure that these products are kept away from the impressionable eyes of young people, so that the next generation are not simply substituting one nicotine addiction for another. There were significant holes in the last Government’s plan, and I am glad that the new Government are slamming them shut.

The health crisis facing our country has never been confined to the running of its hospital wards, doctors’ surgeries and dental practices. We are a sicker nation, and that public health challenge needs confronting. Life expectancy was extended by three and a half years over the course of the last Labour Government, but in the 14 years under the Tories, it grew by just four months. In this Bill, we see the epitome of the future-facing approach that only a Labour Government can deliver. By stopping the start and ensuring that the next generation never develop an addiction to nicotine, we can protect their health and wellbeing and protect our NHS for many years to come.