Tobacco and Vapes Bill (Sixth sitting)

Jack Rankin Excerpts

Tuesday 14th January 2025 Public Bill Committees

[The Chair]

I remind the Committee that with this it will be convenient to discuss clauses 6, 55 and 72 stand part.

[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—

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[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.

[Sarah Bool (South Northamptonshire) (Con)]

I want to follow up on the points made on clause 5(3) and clause 6(3) in particular. Both specify that

“The notice must be displayed in a prominent position”.

I agree with many of the points my hon. Friend the Member for Windsor made about what that means in practice. In the information pack that we have been given, there is a quote from the Scottish Grocers’ Federation, which I want to read for the record. It explicitly states:

“In most convenience stores, space is at a premium and the suggested wording set out in UK Government proposals will require a significant surface area in order to be legible and accessible to all customers. The complexity of a moving ban will require very clear public messaging. Appropriate and mandatory signage is essential for good practice and the sale of age restricted items, SGF is concerned that multiple messages throughout the store relating to various product ranges and items could potentially create confusion and lead to challenging interactions between customers and staff.”

To protect our retailers, we must ensure that we enforce these regulations correctly. When making the regulations, the Secretary of State should take into account the voice of the retailers.

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[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?

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[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.

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There are currently no restrictions on giving away free samples of nicotine or non-nicotine vapes—for marketing purposes, for example—to children and young people, meaning those under the age of 18. In contrast, the free distribution of tobacco products is banned for all ages under the Tobacco Advertising and Promotion Act 2002. Vaping companies have come to Parliament and given away free vapes to Members of Parliament and staffers who wanted to receive them.

[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.

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[Dr Johnson]

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

Clause 10(4) states:

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

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

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

“currently vape or sometimes vape”.

Of those children, 65%

“expressed a preference for fruity flavoured vapes”,

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

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

[Jack Rankin]

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

[Dr Johnson]

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

[Jack Rankin]

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

[Dr Johnson]

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

[The Chair]

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

[Jack Rankin]

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

[Dr Johnson]

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

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

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

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

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

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[Jack Rankin]

rose—

[The Chair]

Order. Forgive me, I have only just taken over as Chair, but the hon. Gentleman was not in the room for a chunk of this debate. Is that correct?

[Jack Rankin]

It is, Sir Roger. I went to the toilet.

[The Chair]

In that case, I do not think it is quite appropriate for the hon. Gentleman to speak. I will allow him to speak very briefly, but I do mean brief.

[Jack Rankin]

I disagree with the Government on some of the clauses dealing with vaping, but I will come to those later, when it is more appropriate. I agree with what the Government are trying to do in clauses 10, 11 and 12 to toughen things up for under-18s. To that end, I encourage them to support new clause 10, tabled by the shadow Minister, which tries to make purchasing more difficult for under-18s online. We talked earlier about the principle of vending machines, which is addressed in clause 12 and by trying to ensure age verification when there is no one else present. It seems to me that new clause 10 is entirely in line with that, so I hope the Minister might consider supporting it.

[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.

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[Jack Rankin]

I commend the Minister on making the evidence-based point about the difference between a smoke-free generation and a nicotine-free generation. Does he agree—I think he does, given the comments he has just made—that there are some somewhat sweeping powers here, which could be used to come back and ask for more legislation against vaping companies? Does he agree that that potential lack of certainty for legitimate vaping businesses might impede investment in this space, which is actually contributing to the benefit of a smoke-free generation?

[Andrew Gwynne]

There is nothing in the Bill that we are proposing to do that will restrict the legitimate sale of vapes. As a Government, we recognise that vapes have been used, and continue to be used, as a stop smoking tool. Our advice remains very clear: vapes are not harm free. We do not yet know the full extent of the harm, but as we heard from the chief medical officers from the four nations, it is unlikely that they are harm free. Indeed, there is limited evidence showing some harms, and there are lots of studies and research taking place to ascertain what the long-term impacts of vaping might be.

Our advice remains clear: if a person has never smoked, not smoking, and not vaping, is the best thing. If a person has smoked, vaping is safer than smoking, but it is not risk-free, and as a smoking cessation tool, it has proven to be successful for some. We do not want children to ever take up vaping—ever, and not in adulthood, either. Vaping is for people who have been smokers who want to give up; vapes are a safer product than tobacco.

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[Jack Rankin]

I supported clauses 10 and 11 because I agree with the Government that under no circumstances should children be taking up vaping. I was heartened by the Minister’s comments on the principle of clause 10, the general point about evidence and balance when it came to vaping, and treating vaping differently from cigarettes and tobacco products.

However, I cannot quite go along with the Government on clause 12, because there they have the balance slightly wrong. I accept that vape vending machines should be prohibited, for the same reason that tobacco and cigarette vending machines were prohibited: vending machines cannot provide for age verification. That balance is well struck. However, I do not support the related measure for nicotine product vending machines. The Minister may seek to correct me, but I am not aware that any of the products described by the shadow Minister, such as nicotine patches and gum, is used recreationally or is attractive to children.

[Sadik Al-Hassan]

Does the hon. Gentleman not think that, if other items are restricted, people will end up buying those items? We are going to restrict what is available, and that will surely open them up as an avenue if we do not close it now.

[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?

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[Jack Rankin]

I mean the former: nicotine patches and gum. The stated intention of the Bill, supported by the House on Second Reading, is to move to a smokefree generation, so it would seem sensible to make nicotine products pretty widely accessible, in so far as they do not attract children. We should largely welcome a vending machine selling nicotine patches or gum if the intention is to move to a smokefree generation. I do not think the Government have the evidence and the balance quite right on that point, so I cannot support clause 12 as it is currently written.

I would make a similar case in support of the amendment in the name of my hon. Friend the Member for South Northamptonshire. She has read to us evidence from a relevant professional, who has a legitimate concern. It might be sensible, in the interest of broader public health, to have such a vending machine. If the Government are concerned about evidence and balance, those are exactly the kinds of voices they should be listening to, and they should accept the amendment, which is very much in line with their intent.

[Sadik Al-Hassan]

Does the hon. Gentleman have any evidence that there is a restriction on access to stop smoking products now? In my experience as a pharmacist, I have not seen that.

[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.

[Sarah Bool]

I will say a little about the intention behind the amendment. We have obviously stressed throughout this debate how addictive nicotine is, but I want to ensure that if we are trying to deal with mental health issues, we are not creating an extra burden. The intention was not to encourage people to smoke, vape or take up other bad habits, but to make sure that we offer the best possible healthcare in the round, which means giving support.

Nicotine is addictive and so stresses are associated with it. Perhaps there are alternatives to give patients, but if they are not suitable for a particular patient or they do not work as well for them as nicotine, they will effectively be going cold turkey, which has its own issues. The intention behind the amendment was purely to encourage us to listen to the evidence from trusts themselves, to try to come up with a practical solution to enable this transition and allow us to get to a smokefree generation.

[Jack Rankin]

I thank my hon. Friend for her intervention and I agree with everything she has just said.

I will just finish my remarks to my hon. Friend the shadow Minister. She talked about this measure being a further opportunity; I would suggest that the easy availability of nicotine products in certain instances would be an aid on that journey.

We should be working pragmatically on amendments such as this in Committee, to ensure that the evidence is considered and that the right balance is struck. I will support the amendment tabled by my hon. Friend the Member for South Northamptonshire. Because the nicotine product vending machine measure is part of clause 12, I will vote against clause 12 stand part.

[Andrew Gwynne]

Clauses 12 and 78 prohibit vape and nicotine product vending machines in England, Wales and Northern Ireland, and similar provisions are made elsewhere for Scotland. However, it is really important that the Committee understands that Scotland already specifically prohibits vape vending machines.

Clause 12 makes it an offence for any person managing or controlling a premises to have a vaping or nicotine product vending machine available for use, which effectively prohibits the sale of vapes and nicotine products from vending machines. I will try to clarify this point for the shadow Minister. She asks, “Who is responsible? Who is that person?” The offence is linked to the person with management control of the premises, as that is the most appropriate mechanism; they have control over whether the vending machine is present. That is the answer to her question.

This Government will stop the next generation from becoming hooked on nicotine. To do that, it is essential that we stop children from accessing harmful and age-restricted products. Prior to the prohibition of tobacco vending machines, we know that children who smoked regularly used those machines as their source of cigarettes. We cannot allow the same thing to happen with vapes.

Vending machines do not require any human oversight, so it is much easier for determined individuals to bypass age-of-sale restrictions and, crucially, to undertake proxy purchases on behalf of individuals under 18 because there is a much lower chance of their being challenged about such a purchase. Additionally, by their very presence vending machines advertise their contents and the Bill will ban the advertising of vapes. We need to ensure that children are protected from harmful and addictive products. Ensuring that we remove the ability of children to access age-restricted products is an essential part of that approach.

I turn to amendment 96, regarding the exempting of mental health units from the vending machine prohibition. I am grateful to the hon. Member for South Northamptonshire for bringing this important issue before the Committee today for discussion. Her amendment would allow vape and nicotine product vending machines to be available for use in specialised mental health units in England and Wales.

I am very sympathetic to the needs of adult smokers and vapers in mental health facilities, and I know that this topic came up during the evidence session. However, we do not currently believe that there is a need to exempt mental health settings or other healthcare settings from these requirements. Scotland did not exempt mental health units from its vape vending machine ban, and it has had no issues. I want to be clear, because it is really important that I make this point: we are not banning the sale of vapes and nicotine products in mental health settings. We are only prohibiting their sale from automatic machines that provide no means to prevent proxy purchasing. Facilities that contain shops will still be able to sell vapes to patients and staff. Additionally, patients in mental health settings may be able to benefit from stop smoking services and the swap to stop scheme.

The majority of in-patient trusts, both acute and mental health, successfully deliver stop smoking support to smokers. As part of the swap to stop scheme, localities can request free vaping starter kits to provide to adults engaging with their local stop smoking services. Awards have now been made to individual services in a range of settings, including NHS and mental health settings, and to specific populations. It will still be legal and possible for vending machines to dispense medicinally licensed nicotine replacement therapies such as gums, patches and inhalers. These important medicines will still be available to patients who are looking to quit smoking or who are struggling with their nicotine addiction.

--- Later in debate ---

[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?

[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.

[The Chair]

With this it will be convenient to discuss clauses 62 and 80 stand part.

[Jack Rankin]

I have supported the Government so far on the principle of not allowing under-18s to vape, but I am concerned that, as we get to these clauses relating to distribution and discount—we have just talked about display, and I will not talk about flavours and marketing in depth, because I know they will come later—we are at risk of moving away from the evidence, and from the balanced approach that the Minister talked about when he delineated between vaping and tobacco.

These clauses give quite wide scope to Ministers on all of these products together, but I think the products should be treated differently. There should be scope for legitimate, responsible vaping companies to offer free distribution and discount of products, in aid of the Government’s stated aim. We do not want to create new vapers, but vaping is a powerful tool to realise the aim of a smoke-free generation. As with most products, it is possible to promote price savings in a responsible way.

We have received a huge weight of correspondence on this topic and I cannot say that I have had the time to read everything that has come across our desks, but I read the letter from VPZ, which I understand is a vaping company. It talked about its partnership with the NHS in Essex, which had put out to tender for a process to help people successfully quit. There was a £55 voucher from the NHS associated with that partnership. As I understand the letter—perhaps the Minister knows more about this than I do—VPZ used that voucher to offer a cashback scheme such that that money came off the price of vapes. VPZ did not benefit directly, because it did not think it should be doing so from a public source, but it passed that saving on, and I suppose that counts as a discount on a product.

I might contend to the Minister that that is exactly the kind of thing we want responsible, legitimate vaping companies to do. I understand that he wants, through this mechanism, to strictly limit advertising to, and targeting of, children and new vapers, but—

[Gregory Stafford]

I accept the point that my hon. Friend is making: there might be an argument for some kind of promotion around the use of a vape for cessation from tobacco products. However, the reality is that there are thousands, if not tens of thousands, of medicines that we do not advertise in this country, because they are generally prescribed by a medical professional, and those that are not—those that can be bought over the counter—are generally harmless so long as they are taken according to the instructions. We would not want a situation like that in America, where specific drugs are promoted to the general public, because I think that would send us down a very difficult route. Does my hon. Friend not think that what he is suggesting on vapes is something like that, and that for products prescribed by a doctor for smoking cessation, or at least for over-the-counter products, we should not have advertising, marketing or promotional products?

[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.)