Tobacco and Vapes Bill (Fourth sitting)

Caroline Johnson Excerpts

Committee stage
Wednesday 1st May 2024 Public Bill Committees

[The Chair]

Before we begin, Dr Johnson wants to declare an interest.

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

I am a consultant paediatrician in the NHS and a member of the Royal College of Paediatrics and Child Health, and one of the witnesses this afternoon—Mark Rowland—is known to me.

[The Chair]

If anyone else wants to declare an interest, please do so now.

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[Mary Glindon]

Q There are still 6.4 million people who smoke. With this Bill, how do we prevent future generations from smoking and become a smoke-free country? What incentive is there in this Bill for persistent smokers to stop smoking now? Are there physical health benefits for long-term smokers to quit that could be an incentive if they have not tipped over the edge and have an incurable disease?

Professor Agrawal: It is never too late—that is what I say to patients who are currently smoking. I see people in their 60s, 70s and 80s, so it is never too late to quit. There are always benefits. Even when people have been diagnosed with lung cancer, we can provide treatment in the form of surgery, radiotherapy and so on, and quitting smoking still helps. I think the Bill sends a clear message that we recognise that there are 6.4 million smokers and we need to support them to quit. Vaping is one means of doing that, and we are not trying to take it away from them if that is the only way they have been able to quit smoking. The Bill contain provisions to help all groups. It is not just about stopping young people taking up smoking; it recognises the need to do something for the people who are still currently smoking.

Tim Mitchell: I would say that there is still an imperative to encourage people who smoke to stop smoking, and vaping can be a mechanism for helping with that. Certainly, as surgeons, when we see people who smoke who require surgery, we encourage them to stop smoking. We know that their risk profile through surgery is improved if they can stop smoking, even just a few weeks before they have surgery. Even if they do not smoke on the day they have their operation, that has some benefits. Encouraging people who smoke to stop smoking remains a very good thing to do, in addition to the provisions in the Bill.

[Dr Johnson]

Q Professor, you talked about choice, and about business and the need to maintain profits by addicting a new generation of people to a nicotine-based product that will be hard for them to quit. That applies to vaping as much as it does to smoking, although one may be more harmful than the other. Could you talk about the effects of vaping on those who have never smoked—particularly things such as e-cigarette or vaping use-associated lung injury, and the effects of nicotine on their lungs?

Professor Agrawal: In the report we have just published, we looked at a range of studies related to safety. Ann McNeill, who will be talking this afternoon, is in a much better position to talk about that work. We measured the range of toxins and the degree of exposure. E-cigarettes expose people who use them for a short time to quit smoking—which is the only thing we advocate them for—to a much narrower band of toxin, and the degree of exposure is lower. In comparison with tobacco, it is much lower, but in comparison with not using either, unsurprisingly the levels of toxins are higher. The RCP is very clear about that: if you do not smoke, do not vape.

[Dr Johnson]

Q Do you have any more details about the medical effects of vaping on non-smokers?

Professor Agrawal: Nicotine itself can raise the heart rate and raise blood pressure, although usually less so than tobacco. As I said, we do not advocate vaping for anybody who does not smoke.

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

Q Good afternoon to you both. You have explained to us the horrors and the multitude of harms that tobacco smoke can have on an adult who smokes. Can you explain a bit about the effects that second-hand tobacco smoke has on children, who have even less choice in the matter?

Professor Agrawal: We know that second-hand smoke causes a range of diseases for children, whether that is triggering asthma exacerbations or infections, such as middle-ear infections. There is a bunch of infections that are much more likely in children whose parents, carers or siblings smoke, and they are exposed to that second-hand smoke. By treating adults who smoke and helping them quit, you will also help their children.

One thing I did not talk about earlier was the impact on poverty. Helping adults to stop smoking increases household income and reduces child poverty. Action on Smoking and Health has estimated that something like 250,000 children live in households that are below the poverty line because of adults spending on smoking. Stopping smoking has myriad benefits, whether helping children, reducing poverty or reducing health inequality. That is why this Bill is so pleasing.

Tim Mitchell: From a surgical point of view, in my practice as an ear, nose and throat surgeon, one of the commonest conditions we see is glue ear in children. That is a condition where fluid behind the eardrum affects hearing, and potentially affects speech. That is the condition for which children sometimes have grommets or ventilation tubes put in their ears. It is one of the commonest operations that children undergo. The risk of that is significantly increased in children who live in households with smokers. There are other disease pressures as well, as my colleague alluded to. It has a significant impact.

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[Dame Andrea Leadsom]

Q The chief medical officer said earlier that he would encourage the vaping sector to perhaps try for registration for a particular vape for prescription. Nobody has done that as yet, because it is a complete free-for-all out there. We are all really keen to see better, safer products and help adult quitters to quit. The CMO said that they could be prescription-only for people who are both in poverty and deprivation and trying to quit smoking, but not to in effect prescribe in a Bill such as this, “You shall now have only prescription vapes.” Would you agree with the CMO?

Professor Agrawal: I completely agree with that. I completely agree with what the CMO said.

[Dr Johnson]

Q In order to be a prescribable drug, an e-cigarette or vape would need to go through an awful lot of testing to demonstrate its effectiveness in what it does, the safety of its components and the safety of the product as a whole. Are you aware of any vape that has gone through the safety testing to demonstrate that it is safe in that way that can currently be prescribed?

Professor Agrawal: I think a colleague from the MHRA is on after me who might be able to answer. I believe there are products that industry has taken to the MHRA and got to the point of licensing, but it has not marketed them or wanted to take them further. I do not think that it is impossible. In fact, as the CMO said this morning, I think manufacturers should be encouraged to go through that process.

[Dr Johnson]

Q So you think vapes are available that could be prescribable in the United Kingdom.

Professor Agrawal: No, I am not saying that there are: I am saying that companies have started to go down that route, but they have not proceeded.

[Dr Johnson]

Q Why do you think that is?

Professor Agrawal: I do not know. Presumably it is related to what they feel is a good commercial bet or not.

[The Chair]

If there are no further questions, can I thank the witnesses? We will move on to the next panel.

Examination of Witness

Mark Rowland gave evidence.

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[Rachael Maskell]

Q But the testing kit would have to come through you?

Dr Squire: It would depend on what it was defined as. I think we could be going into the medical device regulations. I am thinking on my feet, but I would say that a testing kit to test a product would probably not be “for a medical purpose”. It probably would not be under the medical device regulations because the testing kit itself does not have a medical purpose, but it is quite a fine line. We would need to look at the actual testing kit and its purpose.

[Dr Johnson]

Q I want to make sure I have it clear in my head. If someone wants to license something as a medicine or a medical product, they have to go through the more complicated, more expensive process and show you that it is safe, properly made and works as it says it will, and that the risks are outweighed by the benefits of the product. If they want to list something as a product for sale, do they just tell you that they are going to do it and you do not test any of those things?

Dr Squire: No, they are under different pieces of legislation.

[Dr Johnson]

Q Would they count as listed with and notified to the MHRA?

Dr Squire: They are notified to the MHRA, and that notification is under the tobacco and related products rules. That is different from the human medicines regulations, which govern medical products. We do not deal with that notification scheme. That is set out by those regulations and the responsibility was given to us as the competent authority. We cannot go beyond those rules.

[Dr Johnson]

Q I understand that. Do you think that it is the right authority to do that? Could it be misleading to members of the public, who see that the vaping devices they buy have been listed by the MHRA and presume, because the MHRA is the medicines and healthcare products regulatory authority, that somehow you have tested them? Might it be more practical to say that this has been notified and we call the competent authority something else, to make what you have actually done with the product more transparent to the public?

Dr Squire: That is an interesting question. As I said at the beginning, our objective as the MHRA is to protect public health. Most of the time we do that by making a decision on whether the risks of a product are outweighed by the benefits. For medicines and medical products, they very often are, and they are if an e-cigarette is licensed and is being used for smoking cessation. However, for vapes, I think we have all said, “If you don’t smoke, don’t vape.” The benefit-risk decision on a lot of products would be that the benefits are not outweighed by the risks. It is an interesting question. I cannot really answer it today, but I would be interested in the public perception of whether having medical and healthcare in the title gives a misleading impression.

[Dr Johnson]

Q Could you clarify something else? If I were a vape manufacturer wanting to get full registration as a medical product for one of my vapes, and I did an apple flavour and a gummy bear flavour, would I have to put those products through separately because the apple flavour is a different chemical to the gummy bear flavour?

Dr Squire: Any product that has different constituents would have to be put through separately, because we would have to test everything. I can see the issue around flavouring is about making it attractive to children, and we are not interested in that, but we look at what the chemicals and substances are in a product, which will be different for different flavours, so we would have to look at those separately and make sure that they all came up to scratch.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Q I ask more for clarification, if a GP wanted to offer a patient a vape as a means of reducing smoking, would that have to be licensed by the MHRA as a medical device? Would it have to be licensed through your organisation?

Dr Squire: Yes, if you want a licensed product that can be prescribed, that would be a medical product. I know, because I was talking to one earlier, that GPs do recommend that their patients go and buy a vape. They do not have any choices at the moment, because there are no licensed products available on the market in the UK.

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[Kirsten Oswald]

Q To extend that conversation a bit, the issue of youth vaping is particularly concerning to me and obviously to many others around the table. You spoke to the Committee about how easy it is to buy products that are illegal but that may look to the unexpert eye as if they are legal products—even to the shopkeepers, one presumes. That must be much more difficult for children and young people—even people who are at the lower age of legally buying vapes—so I wonder what your thoughts are on how that might be acted upon. I also wonder whether you think that vape manufacturing is likely to be impacted by the measures in the Bill.

Mr Lawson: I can answer that anecdotally for you. Of my friends and peer groups who vape, despite what I do for a living, they do not listen to me that the products they are using are illegal, so I think the only way to prevent those products being used is to enforce action against them being on the market to begin with. I think there is a complete lack of awareness and knowledge of the current regulations among shopkeepers, and among the population. Many people may choose to buy an illegal product despite it being illegal, but many people might not have made that decision had they known otherwise.

What we are seeing more recently in that category of illegal products is that the safety of those products is less well known than for products that have gone through the MHRA’s notification process. We have done research into their metals content, for example, and we see elevated levels that you would not normally see in a product that has been notified to the MHRA. There are a few layers of this, but I think that if consumers are not aware of the safety of the products they are using—which they are not—that is a bigger concern. Whether youth use them or not is a separate thing to that.

[Dr Johnson]

Q Mr Lawson, you talked about how many of these products exceed the level, and those figures you presented were quite shocking, but how do people tell? You might think that if you went to a reputable major supermarket, the products there would be the right thing to buy, but we know that in February last year, Elf Bars were removed from Tesco, Morrisons and Sainsbury’s because their products—the Elf Bar 600s, I believe—were found to contain over 50% more than the legal limit of nicotine liquid.

I have three questions: how can a consumer tell if they are buying a legal product? How can a shop, particularly a smaller shop with fewer resources, tell that they are buying a legal product—as we have already heard, the MHRA does not actually test them? And are the penalties for getting this wrong enough?

Mr Lawson: With respect to Elf Bar, the industry itself has tried to take some level of leadership. Distributors are now doing testing on products before they go to the shops, before they stock them or sell them on. My company is registered for testing with UKAS—the United Kingdom Accreditation Service. We work with trading standards, and we work with the industry in testing products like these, so I think this Elf Bar issue has been a bit of a wake-up for industry to take more action.

With respect to smaller stores, I mentioned post offices earlier, because you would assume that going into a post office, you would be able to purchase a legal and reputable product, but I think there is a lack of awareness among the people purchasing these products in stores about what is and is not illegal. I would assume that you should not be able to buy an illegal product; if I owned a store and I was able to buy these products somewhere, I would assume that the only things I could buy were legal. You do not go into a store and buy alcohol, for example, that is illegal, so I guess there is an assumption that products should be legal.

[Dr Johnson]

Q The final part of that question was whether you think the penalties are enough of a deterrent, and whether you think the Bill does anything that will really resolve this.

Mr Lawson: At the moment, there is little enforcement, so I guess anything is an improvement on the current status quo. The question is whether or not retailers make more money and can pay off the penalties due to the profits they are making from illegal products. It is a positive that some action is being taken, but it needs the enforcement behind that, too.

[Dr Johnson]

Q Do you think the penalties should fall on the person who sold the good, rather than the person who produced and made the illegal product and released it for sale?

Mr Lawson: You would find it very difficult to enforce it if you were trying to take action against a manufacturer in China, where you do not have jurisdiction. I think the only way of addressing this is in the UK, where the stores are purchasing products and then selling them on illegally.

[Mary Glindon]

Q The UK Vaping Industry Association, which represents the vaping sector but not any of the tobacco companies that produce vapes—I note that John Dunne, the CEO, is in the Gallery today —has suggested that the Government should include a vape retailer and distributor licensing scheme in the Bill. The industry has itself developed a comprehensive framework for such a scheme, which it claims is designed to, once and for all, deal effectively with the issue of underage and illicit vaping sales. Would that be a big step forward to cut out illicit vape sales?

Mr Lawson: The evidence I have seen is mainly from Spain, where tobacconists must be registered and licensed before they can sell products. In Spain traditionally, vape products have been sold only through licensed tobacconists. More recently, you can see them in convenience stores. I think we are seeing issues in Europe beyond the UK where products are now being sold illegally. Where they are sold in licensed outlets, you generally see much better compliance with the regulations. Obviously the licence can be removed, so it is a deterrent to the retailer to selling any of the products. That would be a good step in the right direction.

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[Nickie Aiken]

Q Are they the ones that you put on your gums?

Professor Ford: Yes, it is a little white pouch. You put it underneath your lip and leave it there for up to an hour. For some of these products on the market, their displays are becoming more elaborate. The packaging is very childlike and the number of those childish packs is increasing.

The products can be incredibly strong. We have seen some for sale that contain up to 150 mg of nicotine. In terms of future-proofing the Bill and having the powers to regulate a range of products, the market is so innovative and developing so quickly that it is important to stay on top of that kind of thing.

[Dr Johnson]

Q This is very interesting evidence. I want to ask you about flavours. I note that more recently we have started to see flavours among the nicotine pouches that you have just described. I introduced a ten-minute rule Bill last year to ban disposable vapes, because I am concerned about their attractiveness to children and their environmental impact. As part of that, I met representatives of the vaping industry, who told me that the reason they have flavours is essentially to maintain an addiction.

If a person uses a standard stop smoking device, such as a nicotine patch or nicotine gum, the natural history is that they smoke, they use the said gum or patch, they wean themselves off the gum or patch, and then they are no longer a customer providing the industry with revenue. If a person uses vapes, however, they have a choice of flavours that help to maintain the addiction. One thing we have seen with the Bill, which contains powers for the Government to potentially regulate the flavours, is that people are using the argument that it will prevent smokers from stopping smoking. They are trying to argue that flavours do not attract children, but the evidence says otherwise. Do any of you have any comments on that?

Professor Ford: It is true that the flavours are part of the appeal of these products for young people. That appeal is made up of a whole marketing mix of things, and flavours are one element of that. We know that adults like flavours as well, and they might help some adult smokers to migrate away from tobacco, so that is also a factor.

The concern is the vast number of flavours that are available—there are thousands. The way they are described is also an issue. In our pack analysis, we looked at how all the flavours are described: you have a basic flavour such as strawberry, or a flavour blend, but you also have what we call flavour concepts, which do not denote a flavour at all. We had examples such as tiger blood and koala drool. I do not know what they taste like, but they are certainly not flavours that I am aware of.

We believe that those descriptors are tapping into this youth culture and youth slang—some other kind of imagery. They go beyond the factual content of a flavour. One easy way to help to restrict the appeal around flavours would be to restrict those flavour descriptors in the first instance. I think it is great that the Bill would contain the power to go on to restrict flavours if that is the right thing to do.

Dr Branston: Can I add that these are profit-seeking companies? They will do what they can to continue to make the profits that they are making. The profits are as addictive as the products that they make, so it is not in any way surprising to me that they design their products to be as appealing as possible to consumers, as well as being as addictive as possible to consumers.

[Rachael Maskell]

Q I want to come back to the point about advertising. Should the legislation bring tobacco advertising and vaping advertising into line so that the same standards are applied across all products?

Professor Ford: That is something to consider. As I said in my previous answer, it is the whole marketing mix of the current vaping products that has led to the rapid rise in youth use. That includes not only the packaging, the retail displays, which we have spoken about, and the flavours, but the actual product design: the price, the promotion, the price promotion, the images on social media, the posters in the shop window—there are a lot of youth cues and messages in some of those—the accessibility, because of the wide variety of retailers that sell these products, and the user imagery. We find when we speak to young people that they associate vapes not with cessation, but with social vaping.

It is important for the Bill to be mindful of all of the marketing mix, and I would put sponsorship in there as well. We know that there has recently been investment from tobacco companies in outdoor advertising for their vapes, and we are seeing a lot of sponsorship of nicotine products at music festivals and music events and in the sports sponsorship that I mentioned earlier. It is really important to be mindful of all those marketing avenues.

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[Dame Andrea Leadsom]

Q Thank you; that is very helpful. Professor McNeill, may I ask you again about the vape flavours? The Bill takes powers to restrict packaging, location in store, and flavours. I would like to get your views on the record. Some say, “Let’s choose and put the actual flavours on the face of the Bill,” while other medics say, “No, you can’t do that, because you will never stay ahead of the vape industry.” What would your view be?

Professor McNeill: My view would be that it is quite a complex issue. As I have said, there are dangers of unintended consequences by removing flavours. Certain research that I have been involved in has shown that the flavours were important in people transitioning out of cigarette smoking, so I think one has to be quite careful about doing it. We also know that it is very difficult to characterise flavours, and that has happened with tobacco cigarettes. That is something for the secondary regulations, where it can be properly thought through. However, I think that removing flavoured descriptors from cigarette packs—as I think Dr Ford said in the last session—would be a really important measure. Our group at King’s has done some work showing that that would have an impact in reducing interest in young people, while being unlikely—we think—to affect adult smokers.

[Dr Johnson]

Q I want to ask about this tension that you have kept coming back to throughout the past couple of days. Particularly on flavours, it is the idea that we need to help grown-ups who may have made the choice, have the conviction, and have some purpose to quit—bearing in mind that we know the average person takes 30 times in total to quit, so they are likely to relapse at some point—versus the need to prevent children from starting to vape. We know, and we have heard today and yesterday, that they are particularly vulnerable to addiction in their mid-teens, and that those who develop addiction to nicotine in their mid-teens—whether that be vaping or smoking—are highly likely to get their choice removed, because they will be unable to stop it. We also heard that some of those who vape will then go on to smoke. If the Government are to choose, and it may be that we have to make a choice in this matter, do you think it is more important to prevent relapse to smoking in adult smokers, or to protect children from starting on a lifetime of nicotine addiction?

Professor McNeill: I don’t think it has to be a choice of one or the other; you can do both. It is a difficult balancing act to achieve, but it is important to do so. It is not about just avoiding relapse to smoking among adult vapers; it is about the 6.7 million smokers who we need to support to stop smoking quickly. They are in disadvantaged groups, and we know that children will also emulate what their parents do, so it is cyclical in disadvantaged communities. I don’t think it has to be a choice. It is a delicate balancing act that we have to get right, and this Bill is trying to do that. I want to pick up on one comment—you implied that vaping is a gateway to smoking.

[Dr Johnson]

That is what we heard from the doctors earlier.

Professor McNeill: I think the jury is out on that. I would say that the gateway hypothesis is highly contested. It used to be invoked quite a lot in the drugs field but was abandoned because it is quite difficult to test. You cannot randomise children to environments where there either are cigarettes and vapes or are not. It has been contested, and our research and other research has shown that it goes both ways. An argument against the gateway theory is the common liability theory, which says children who take risks will try different products. That said, we obviously want to try to stop young people from vaping.

The other thing I would look at is the epidemiological evidence. In the UK, when vaping was increasing among young people, smoking was declining, and that has happened in the US and Canada, which is the opposite of what you would expect with the gateway theory. I think we can get that balance right. It should not be an either/or, and it would be detrimental to think about it in that way. Adult smoking will continue to influence generations to come, if we do not support them to stop smoking as quickly as possible.

Professor West: I agree with what Ann has said. I would put it like this: I think we can have our cake and eat it, and we have. Until the advent of disposables, the UK had a very rational policy, and it was working. The prevalence of vaping and e-cigarette use among never-smokers of all ages was very low, and it was not really going anywhere. If we look at the course of time when these new products came in and the particular rise in youth vaping, the game changer has been the disposables. The key is addressing that. I even think, if we look at the evidence, that it may be an interaction with disposables—flavours per se have been around for a long time. On their own, they were not doing much in the UK to drive vaping prevalence up. The way the Bill is crafted at the moment—if I may say so, though it is not my area of expertise—means that from an implementation point of view, it is well crafted to allow Governments to adjust their policies on vaping as might be required.

As we saw in the rapid rise in new vaping with the advent of disposables, we need to be agile. The industry is constantly coming up with things, and we need to be able to figure out how we are going to deal with that quickly, before things start to get out of hand. For example, and I agree with Ann, on a population level, we do not see a population gateway effect, in the sense that as vaping has increased, we do not see a knock-on effect on smoking—but we could. We could have a situation where, if we have loads of vapers out there who have never smoked, and somehow we discourage them from vaping, smoking becomes the easiest thing to do. These are difficult balancing acts—there is no question about it—but the fact that we have achieved a pretty successful strategy in the past gives me confidence that we could do so again.

[Dr Johnson]

Q I find what you say about the disposables interesting. A year ago last February I proposed a ten-minute rule Bill to ban disposable vapes to protect the environment and children, and the Government now have a statutory instrument to do just that. I heard today from representatives who have been to those meetings that the industry is already working around those many pages of regulations to find a way to create something that just sneaks in under the balance.

Professor West: That is the tricky thing. We can ban disposables as currently construed, but once the genie is out of the bottle, as it were, and with humans being innovative, as they tend to be, especially when they can make money out of it, it will be terribly hard to nail it so that, basically, we can put the genie back in the bottle. That is why the sort of approach that is being adopted makes good sense to me so that we can respond quickly, or so Governments can do what is necessary.

[Trudy Harrison]

Q Professor West, I found your introduction on addiction absolutely fascinating. One of the things that people have said to me—I am sure it has been said to all of us here—is that could be a slippery slope, the thin end of the wedge, because there are other addictive things in society, such as alcohol, ultra-processed foods or gambling. Where do we start? What is it about tobacco products, uniquely, that gives such a compelling reason for the Bill being so necessary?

Professor West: That is a really good question. The wedge issue comes up a lot. Essentially, what is unique about tobacco is the significant degree of harm at low levels of use. With alcohol, it has been and could be argued, there is at least some degree of harm from so-called moderate use, the level of harm is of an order such that, I think, most people in society would say, “Well, you know, this is okay.” Even non-daily smoking, however—even smoking one, two or three cigarettes a week—can present significant harm, particularly of cardiovascular disease, for example, which has a very nonlinear function relating the exposure to the risk. So there is that, the unique harm.

The other unique thing about tobacco is the proportion of users who become addicted. With alcohol, alcohol dependence as it would normally be measured is present —depending on your definition—in between 5% and 10% of users. With tobacco and cigarettes in particular—not all tobacco or nicotine products are identical, but with cigarettes in particular—it is much higher than that. A majority of people who use any amount, and any form, of smoked tobacco probably have a significant level of addiction. That would be my response.