Tobacco and Vapes Bill (Eleventh sitting)

Gregory Stafford 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.

--- Later in debate ---

It is interesting to consider how this will ultimately play out in relation to the online world, because there are punishments and restrictions on those who provide the internet service. Obviously, that is aimed at the Instagrams, Facebooks and other corporations but, again, the offences are aimed at an individual. When it comes to a corporation as big as those, I am intrigued to see not only exactly who we think will be captured by the offence, but how that will work in relation to social media influencers, which I talked a lot about last week— I seem to be totally obsessed with Instagram. Perhaps I spend too much time on it. In relation to the offence of distributing an advert, all influencers obviously have to declare as part of their post, “This is an #ad,” to ensure that everyone knows that they are promoting a product, so it will be very clear if they are committing a breach, but if a fellow influencer shares a post from someone else—perhaps an influencer from outside the UK again—how do we ensure that they are caught? This is a niche point and a technicality, but I always look to a lawyer’s brain to see how they will find little flaws in the provision, and anything further that the Minister can say in that regard would be much appreciated.

[Gregory Stafford]

I do not intend to opine for very long on these clauses, because they have been covered amply by my hon. Friends. I caveat everything I am about to say with an absolute commitment: I continue to believe that this is the right Bill, that the clauses that we are discussing are the right clauses, that we should be trying to stop people smoking tobacco products and that people under 18 should not have any access to vapes.

However, I have mentioned on a number of occasions that vapes could be and are used as a smoking cessation tool. This is why I perhaps go further in my desire than the shadow Minister does in relation to the amendments that she has put forward. I do not know whether she will press them, but I do ask the Minister to think about the issue of smoking cessation. The shadow Minister talks about how someone who is promoting smoking cessation might fall foul of these rules as they are written—the Minister shakes his head, and I am sure that he will be able to give us reasons for that in a minute.

I would go one step further. For example, we allow the promotion and advertisement of gums and nicotine patches, because they are classed as a medical product, being effective smoking cessation tools. Of course we do not want anybody who does not smoke, either an adult or a child, to be chewing nicotine gum or wearing nicotine patches—to be frank, I am not clear whether there is any evidence that they do, but I suspect they are not seen as, to use the word I think the Minister used last week, “sexy”. I do not think anyone thinks that chewing gum is particularly sexy, and certainly a patch on the arm is not sexy, so I accept that those are not in the same bracket as a vape with colourful packaging and so on. However, gums and nicotine patches are monitored by the MHRA.

I know that the Minister has indicated that a new home is being sought for vapes, but as it stands in the law, they would be monitored by the MHRA. If we are going to say that they are in a similar vein to a patch or a gum in terms of smoking cessation, it is possible that we might want to be able to promote and publicise them, maybe through something in a doctor’s surgery or in a maternity ward, as my hon. Friend the shadow Minister said, that says, “Don’t smoke. Instead, use a vape, a patch or a gum.” If that advert in a doctor’s surgery said “gum” or “patch”, there would be no problem, but if it said “vape”, my understanding is that it would fall foul of these clauses. As my hon. Friend said, they may not want to fall foul of the law, but we might want to be able to advertise vapes as a smoking cessation tool in that very limited circumstance and in an appropriate place—that is, in a pharmacy or a doctor’s surgery.

[Dr Beccy Cooper (Worthing West) (Lab)]

I want to add something to what the hon. Gentleman is saying, which is interesting and relevant, about smoking cessation services and how they currently work. I have run and managed smoking cessation services. As it stands, when a smoking cessation adviser is talking to a person who wants to stop smoking, they discuss nicotine patches, gum and whatever other options may be available. They do not promote vapes or actively say that they are an option.

The reason for that is the public health evidence. In public health, we apply the precautionary principle, by and large, where we think that there may well be harms ensuing from using a particular product, but the evidence is not yet sufficient. The hon. Gentleman is absolutely right that, in the case of smoking, using vapes is much more preferable for a person’s health, but in terms of smoking cessation, as clinicians and advisers, we need to be careful in how we apply clinical norms, and that is relevant here.

[Gregory Stafford]

The hon. Lady makes an interesting point. I will not labour my point any further, because I think I have made it; I am sure that the Minister can respond to it when we get there.

The only other thing I will mention is the online advertisements mentioned in a number of the clauses. Is the intention to do with the website displaying the advert, the person who has put forward the advert or the intermediary companies? Online, a lot of adverts are now tailored via cookies. When the Minister goes on to a website, the adverts that he sees are tailored to the things that he has been looking at. I could go on to exactly the same website at exactly the same time and receive a different set of advertisements based on my internet viewing preferences—[Laughter.] I do not know why my hon. Friend the Member for Windsor is laughing. I get a lot of weird stuff, mostly for hoof trimming videos—I am not sure what I typed in to get those. Maybe it is my rural seat. I do not know.

My point is that those advertisements are totally unconnected to the website that I am looking at, which essentially has no control over what adverts are being displayed, as far as I understand it. Because the internet is so complicated, what thoughts does the Minister have about the fact that essentially, the internet provider and the website may not have any knowledge of what adverts are being put on?

[Dr Danny Chambers (Winchester) (LD)]

As part of the solution, legislation must already be in place, because human and veterinary prescription-only drugs are not allowed to be advertised to the public, but they can be advertised to medical professionals. There must be legislation that prevents rogue companies from advertising in the UK products that they are not allowed to advertise to the general public, and I imagine that it should be incorporated into the Bill to address the problem that the hon. Gentleman talks about.

[Gregory Stafford]

Forgive me; I am not sure I fully understand the hon. Member’s point in relation to what I was just saying, but that is probably because I have not explained myself well enough, not because he has misunderstood it. I entirely agree that the advertising of tobacco and vape products should be banned, and I agree with the sentiment and the outline in the law. All I am saying is that when the Minister or the relevant authority seeks to prosecute somebody for this offence, there may be occasions, given the complexity of the internet these days, when people may not know that their website is hosting said adverts. I do not want to labour that point again, but I am sure the Minister can respond.

[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.

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[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—

[Gregory Stafford]

Things haven’t got that bad yet.

[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.