Tobacco and Related Products Regulations 2016

Lord Campbell-Savours Excerpts

Monday 4th July 2016 Lords Chamber

[Lord Campbell-Savours (Lab)]

My Lords, in February 1996 I found myself under the surgeon’s knife, on the slab at St Bartholomew’s Hospital in London, having a tumour on my lung removed, an operation in which I lost half of my lung capacity, making it impossible for me now to walk upstairs or walk any great distance. The reason for all this was that for 25 years I smoked cigarettes.

I only wish that these new inventions that now exist had been available to me. I tried hypnosis on Harley Street. I tried patches of different forms. I could not quite do cold turkey but I tried everything possible to stop smoking, and it was utterly impossible. Indeed, I had my last cigarette the night before they took out the tumour. That is how addicted I was to tobacco.

With that in mind and knowing of my particular difficulties, a gentleman in the north of England wrote me a letter. I want to bring the salient points of his correspondence to the attention of the House, because he manufactures the product in question. He says:

“we … have 3 Shops and 6 employees … we are manufacturing the eliquid that is used in the devices. We have sold thousands of these devices locally”—

that is to say, in the north of England—

“and helped so many people make the switch. This has been such a rewarding and positive part of the business for myself and staff who still love helping people to remove a lifelong use of tobacco and improve their health”.

If those listening to my contribution this evening can hear my heavy breathing, that is the result of the operation that took place as a result of smoking all those years ago.

In his letter, that gentleman says that the two millilitre tank size restriction is pointless and restricts future product development. I wonder if the Minister might deal with these matters in the wind-up, if he is able, because some of this is technical. Perhaps he could write to me with a greater explanation.

The manufacturer says that limiting nicotine strength to 20 milligrams per millilitre is counterproductive as it removes the 24 milligram strength which is essential to lots of new switchers. He says the restriction of bottle size to 10 millilitres is pointless as much more hazardous household products are available in much bigger sizes. The popular size for cost-effectiveness and suitability is 30 millilitres, and bottles of 100 millilitres are available too. People can average, he tells me, 10 millilitres per day liquid usage, so a restriction on supply there is again counterproductive.

There will be a restrictive cost in introducing new products to the market. Remember, this man is a manufacturer. He says he will be classed as a producer when importing goods from outside the European Union, with MHRA notification and testing costs implications to bear. Therefore, a lot of suitable and effective products will be removed from the market. He says:

“We are looking at having to find the Cost of Emissions & Toxicology data requested per flavour SKU for our own manufactured liquids. This is estimated at £5,000 each per flavour, of which we have 20, plus Notification & data submissions for any variables of strength would also be required. Our business model could be changed from a manufacturer to a retailer with loss of jobs & future investment stifled if we are unable to bear the cost of this directive’s implementation. We can already see a burgeoning black market which the TPD (Article 20) will encourage. Individuals are now making eliquid at home & selling to whoever they please, with no testing done or age restrictions adhered to or tax paid”.

I would have thought that that is particularly relevant in this debate. He says:

“This is not a tobacco product and should not be classed as such. Doing so is disingenuous & misleading with implications for people’s health. We hope you can recognize the huge potential to save millions of lives & the health revolution this presents … to governments the world over”.

I hope the Government will find a way of re-examining these regulations. Potentially, we could do a lot of damage to a lot of people.

[Baroness Hollins (CB)]

My Lords, I refer to my interests in the register, perhaps particularly that until last month I was chair of the board of science for the British Medical Association.

The Motion from the noble Lord, Lord Callanan, states that the regulations,

“run counter to advice from the Royal College of Physicians to promote vaping and … that they could force vapers back to smoking”.

Noble Lords should be aware that the Royal College of Physicians does not support the Motion. The Royal College of Physicians, together with ASH, the BMA, Cancer UK, the Royal Society for Public Health and the UK Centre for Tobacco and Alcohol Studies all support the TRPR, including the regulation of e-cigarettes. Yes, medical organisations such as the RCP and the BMA recognise the substantial harm reduction offered by e-cigarettes, but they also conclude that they are not harmless—both identify the need for regulation of e-cigarettes to protect the public.

Noble Lords may have received some very inaccurate briefings, making some assertions that are just not substantiated by the evidence. For example, “nicotine itself is not dangerous”. It is just not true. It is both toxic and addictive. Although vaping using electronic cigarettes is much less harmful than smoking, nicotine is toxic. It is also not helpful if you are going to have surgery. It is not helpful when it is swallowed. It is harmful when it is in contact with the skin, and its addictive properties, for me as a psychiatrist, are particularly of concern.

It is just not true that the limits of 20 milligrams per millilitre will force many vapers to return to smoking. Use of high-strength nicotine is not the norm, and vapers who need more nicotine can get it by vaping more frequently.

It is not true that the regulations mean no advertising. Substantial forms of advertising would still be permitted under the regulations—at point of sale, on billboards, on buses, as inserts in printed media and as product information on websites. Furthermore, the ASH/YouGov results show that more than 90% of smokers are now aware of e-cigarettes, so existing smokers already know about vaping. It is the non-smokers, whom we do not want to become addicted to nicotine, who are not so aware.

--- Later in debate ---

[Lord Prior of Brampton]

There are of course many products which do have tamper-proof packaging and we cannot debate all the ones the noble Lord mentioned. It seems to me entirely reasonable that this particular product should be tamper-proof. If a child were to swallow nicotine in these kinds of volumes it would have a very serious impact. It is entirely reasonable to have tamper-proof packaging.

The Government have asked the MHRA, local authorities and others involved in the enforcement of these regulations to develop a compliance regime together with the businesses which are currently in this industry. We will take a pragmatic approach to implementing the new notification system. Notification fees are low—£150 per product and £60 annually as a top-up—and are set to recover costs only. The MHRA has also developed guidance that minimises the burden on business.

E-cigarettes are not harmless. Nicotine is both toxic and addictive and there are unanswered questions about the effects of longer-term use. It is better to vape than to smoke but it is far better to do neither. These regulations reduce the risk of harm to children and protect against the renormalisation of tobacco use. They provide assurance on relative safety for users and legal certainty for businesses that wish to sell these products across the EU. I also underline that the regulations have the full support of the four nations of the UK, as well as many of those in the health community that have been involved in tobacco reduction, including ASH, Cancer Research UK and the British Medical Association. The Royal College of Physicians agrees in its report on the need for regulation of e-cigarettes to protect the public, and states that although e-cigarettes are estimated to be in the order of 95% less harmful than smoked tobacco, they are not harmless.

Moving forward, the Government are committed to a full review of the functioning of the regulations, including—

[Lord Campbell-Savours]

Is there a danger that a black market will develop?

[Lord Prior of Brampton]

It is possible. There is always a possibility when there is a regulation that a black market will develop, and for the very high-strength products, which had to be regulated by the MHRA—the ones above 20 milligrams—there is a risk that there will be a black market. I think I recall that the noble Lord said earlier that a black market had already developed in this product. We are trying to bring some minimum quality standards, at least, into this market so that people who are thinking of moving from smoking to using e-cigarettes can have confidence that the product they use is regulated to a minimum standard.

I remind noble Lords that new and important tobacco control measures are also contained in these regulations. I have not talked about them specifically because they are slightly off the main point of this debate. The regulations will be reviewed within five years of entering into force. I also commit, here and now, to commissioning Public Health England to update its evidence report on e-cigarettes annually until the end of this Parliament and to include within its quit-smoking campaigns consistent messaging about the safety of e-cigarettes.

Clearly, there are strong arguments on both sides of the debate. As I said, I am not an instinctive regulator by any means but I feel that these regulations are proportionate. They do not go over the top, are entirely sensible and are backed by the RCP and all the major charities in this area. I hope that my noble friend Lord Callanan will not wish to push this to a vote, but of course that is entirely his decision.