Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2018

Lord O'Shaughnessy Excerpts

Tuesday 4th December 2018 Lords Chamber

Moved by

[Lord O'Shaughnessy]

That the draft Regulations laid before the House on 1 November be approved.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, in introducing the regulations before the House today, I want to stress how critical they are in maintaining the UK’s commitment to be a world leader in tobacco control as we leave the European Union. The Government strongly believe that tobacco control legislation is crucial for stopping people smoking and reducing the harms associated with smoking. Whatever the outcome of the Brexit negotiations, that belief is unwavering.

As noble Lords know, the Government are focused on the successful passage through Parliament of the deal which has now been reached with the EU. Nevertheless, we continue to plan for all scenarios. The regulations before us have been laid for a no-deal scenario. If the UK reaches a deal with the EU, the department will revoke or amend this instrument to reflect that deal.

This instrument will ensure that the UK domestic legislation that implements the two main pieces of EU tobacco legislation—the tobacco products directive 2014/40/EU and the tobacco advertising directive 2003/33/EC—functions effectively after exit day. The instrument, made under the EU (Withdrawal) Act 2018, makes appropriate amendments and revocations to correct deficiencies in UK legislation and retained EU legislation.

Regardless of one’s views on Brexit, I see no reason why the amendments we are proposing through these regulations should not be supported. The proposed amendments are critical to ensuring that there is minimum disruption to tobacco control in the event that we exit the EU without a deal in March 2019. I would like to draw the attention of noble Lords to three main changes that this instrument would introduce.

First, in the event of a no deal, the UK will need to develop its own domestic notification systems for companies that wish to sell tobacco products and e-cigarettes to the UK market. The notification process is essential for ensuring that companies are complying with legislation on product standards. Both Public Health England and the Medicines and Healthcare products Regulatory Agency have commenced work to ensure that domestic notification systems are in place and functional by exit day.

Secondly, in the event of no deal, the UK will not hold copyright to the EU library of picture warnings for tobacco products. Requiring the industry to continue to use these pictures would breach copyright law. Picture warnings are a key part of tobacco control, and it is therefore extremely important that we continue to require the inclusion of graphic picture warnings on tobacco products. The UK has therefore recently signed an agreement with the Australian Government to obtain picture warnings free of cost, and I want to take this opportunity to express this Government’s gratitude to the Australian Government for their assistance in this matter. I would also note that this approach has received endorsement from Action on Smoking and Health, which has said about our proposals on notification systems and picture warnings that they are, “pragmatic and practical, minimising the amount of additional work involved if there were to be a no deal Brexit. We support the Government proposals for dealing with this short-term issue”.

Thirdly, this instrument proposes a transfer of powers from the Commission to the Secretary of State, permitting the Government to respond to emerging threats, changing safety and quality standards and technological advances.

In introducing this instrument, I must be clear that it will have some impact on the tobacco and e-cigarette industry. The department ran a short technical consultation in October to seek feedback on the practical issues that will affect the industry in a no-deal situation. We received 32 responses. Tobacco control stakeholders showed support for the continued use of picture warnings and amendments to the notification system as an effective way of stopping people smoking and as a means of harm reduction. The tobacco industry did raise concerns about the timing of implementation and cost, primarily in relation to the changes to picture warnings. However, I would stress that we did not receive detailed evidence or a breakdown of costs.

As noble Lords know, we have no control over timing issues—or at least this government department does not—as the implementation timetable is dictated by the timing of EU exit. The Department of Health and Social Care has therefore consulted with external experts, who have confirmed that the change in timescale is likely to be difficult but manageable. To mitigate these issues raised in the consultation by the industry, we intend to publish detailed guidance on picture warnings and the notification process in January 2019.

Before closing, I would also like to stress that the devolved Administrations have provided consent for the elements of this instrument which are considered devolved.

I hope that noble Lords can see that this instrument constitutes a necessary and important measure to ensure that our tobacco control regulations continue to work effectively after exit day in the event of no deal. I must emphasise that, due to the instrument being made under the withdrawal Act, the scope of the amendments in it is limited to achieving this objective. At an appropriate point in the future, the department will review whether the UK’s exit from the EU offers us opportunities to reappraise current regulation to ensure that we continue to protect the nation’s health and so that the UK remains a global leader in smoking cessation and tobacco control for many years to come. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Lord for this opportunity to discuss e-cigarettes. It is also a great opportunity to press the Minister on the Government’s Brexit situation. I do not think that we have heard him on this matter before. It is interesting to reflect on the confidence set out in the Explanatory Memorandum that,

“as a responsible government, we will continue to proportionately prepare for all scenarios”.

That is just as well because I do not share the Minister’s confidence that the future is at all clear or, indeed, that all scenarios have been planned.

I am sure the regulations are sensible but the Explanatory Memorandum takes us back to our debate when they originally came through your Lordships’ House, during which a number of us expressed concerns that the directive on which they were based takes too draconian a view on e-cigarettes. I happen to think that e-cigarettes are one of the most successful public health measures to help reduce smoking that we have ever seen. It is a great pity that some elements of the public health community that I know well and love have such a downer on e-cigarettes that they have encouraged a disproportionate approach to their regulation. In Grand Committee, the argument was put that e-cigarettes should be regulated in a completely different way from tobacco-based products. I remain convinced of that.

Of course, we must be very careful about the potential impact on young people. I know there are those who think that attractive advertisements and the way e-cigarettes are marketed can sometimes lead young people to take up smoking. The evidence for that is very dubious. We know that e-cigarettes are attractive to people over whose heads most public health campaigns completely fly. Although I fervently hope that we do not exit the EU next March, if we do and if the Government bring forward at some point new regulations on tobacco products in general, I hope they will take note of our debates and look at e-cigarettes in a completely different way.

[Baroness Thornton (Lab)]

My Lords, I apologise to the House for being a minute or so late. I am afraid that business moved too quickly and the lift too slowly.

As the Minister said, the current regulations for tobacco and related products are designed to promote and protect the public’s health. Speaking as a veteran of tobacco regulation from the previous Labour Government and the Minister responsible for the point of sale retail advertising regulations that put tobacco products out of sight in our shops and supermarkets, all those actions were rigorously and energetically opposed by the noble Lord’s party and the Minister’s predecessor but one. I welcome the Government having definitely seen the light on this; it is wonderful. I am pleased to learn that the Government’s priority is to maintain the same high standards after the UK leaves the European Union, if that is indeed what happens.

The noble Lord and I are discussing regulations that will be necessary if there is no deal. I suspect they are the first of many. We have a whole load of embryonic and blood things to discuss next week. I wonder whether that is really a productive use of his time or mine.

On what these regulations do, in the event of no deal we will be obliged to introduce legislation to ensure that the policies and systems in place to regulate tobacco products and e-cigarettes will continue to function effectively and maintain continuity with current arrangements. The website and the Explanatory Notes use the words “where possible”, so I suppose my first question to the Minister is to explain the words “where possible” and where the current arrangements might not be possible.

If the UK leaves the European Union in March 2019 with no agreement in place, that will mean, as the noble Lord said, that the tobacco products directive and the tobacco advertising directive will no longer directly apply to the UK—which is ironic, as we were the pioneers in these matters all those years ago. UK domestic law that implements these directives, such as the Tobacco and Related Products Regulations 2016, would remain in force.

My understanding is that these regulations’ purposes are threefold: to introduce a new domestic system to allow producers to notify e-cigarettes in accordance with existing rules; to introduce a new domestic system to allow producers to notify tobacco products in accordance with existing rules; and to introduce new picture warnings for tobacco products, already mentioned by noble Lords, based on the picture library owned by the Australian Government. The noble Lord and I have both learned that the pictures in use at the moment come from a library based in Brussels. We will no longer have access to it.

I thank ASH for its views and vigilance on these important matters, and for its participation in the consultation process. I agree with it that the system set out for notification of e-cigarettes and novel tobacco products in the consultation document is pragmatic and practical, and would minimise the additional work involved in the notification process if there were to be a no-deal Brexit. Products notified to the UK prior to the UK leaving the European Union would not require re-notification and data will be accepted in the same format as currently submitted. Those arrangements seem satisfactory.

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, since we would no longer have access to the rather revolting and graphic pictures in the SI—I have not seen any other legislation with pictures in it, but this instrument has them; I suggest that if noble Lords have not read the statutory instrument they should at least open it and look at the pictures it contains—the Minister has said we will switch to the ones used in Australia, which I gather are even more horrible. However, I remind the Government that, in the longer term, the Tobacco and Related Product Regulations 2016 require the Secretary of State to review the regulations and publish a report before 20 May 2021. This review needs to examine the objectives intended to be achieved by the regulatory provision made by these regulations, and to assess how far they have been met and whether they remain appropriate. That will allow a review of quite a fast-moving area in terms of product development to take place. Does the Minister agree that is the case?

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, switching to the pictures from Australia is a short-term quick fix for this emergency. However, current best practice in Australia and the UK is to rotate, regularly review and update those health warnings. Therefore, it is essential that in the longer term the Government review the warnings—they are currently being evaluated by the Australian Government—and find ways to increase the number to allow for rotation, as is currently the case. When can we expect that review to take place?

I do not need to add to my noble friend Lord Hunt’s remarks about the importance of vaping and its role in reducing smoking. These statutory instruments serve their purpose.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken on this statutory instrument. It is hard to believe that it has taken us this long to have our first Brexit outing on health issues. It could be the first outing of many and we may not always be in such agreement, but I am happy that we seem to be on this occasion.

On the point made initially by the noble Lord, Lord Hunt, and later reinforced by the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, about e-cigarettes, we have been working in a framework decided at a European level and have made the most of it. It inevitably involves some restrictions, whose boundaries we have tried to push in order to have what I think is the most rational and effective approach in Europe. It has worked. As we all know, it has contributed to improved smoking cessation and low use by young people—take-up among young people being one of the fears, which we are unfortunately seeing in the States. Some research is still required to understand better both the behavioural and the health impacts of vaping products, but the Government have no doubt about their central role in dealing with what is still one of the biggest public health issues that we face. I can give an assurance that we keep an open mind about the right way to regulate these products, bearing in mind their almost entirely positive benefits.

It is worth emphasising, as noble Lords have done, that the purpose of the instrument is not to change policy; it is to provide continuity and make sure that there are fixes. However, as the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, pointed out, the review of directives that the Secretary of State has a duty to fulfil gives us an opportunity to think about how they are operating in this and other domains. Certainly, we will fulfil that by 2021, but the Secretary of State may decide to do something sooner —of course, that is not something I can commit him to at this point. The policy is working and we want to make the most of it. For example, some of the restrictions on advertising may be stopping realisation of the full benefits of the use of e-cigarettes in smoking cessation; those are the kind of things we would want to think about.

The noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, talked about the Australian pictures. They are indeed more gruesome—it clearly shows that Australians have a higher threshold for what appals them. We are grateful to the Australian Government for helping us get through the transition by giving us those gruesome photos. It is also worth noting that Australia has a very successful smoking cessation regime—we are not taking these images from just anybody; we are taking them from a country that is doing really well, so there is good reason to think that they will be effective.

The noble Baroness, Lady Thornton, asked about rotation. Clearly, we are going to need to work with the Australian Government as well as design our own pictures. In a no-deal scenario we would need to do that so that we can have rotation and make sure that people do not grow desensitised to these pictures, which is of course one of the problems with them. Of course, in a no-deal scenario we may be able to work with a number of different jurisdictions. It may be possible to assemble a library that goes beyond one or two countries, but that is not something we have a timetable for yet.

In answer to the question from the noble Lord, Lord Rennard, I say again that there is absolutely no going back on the progress we have made on smoking cessation. The Government are a vigorous promoter of tobacco control. We know the health benefits: pretty much the best thing you can do for your health if you smoke is to stop, so I can reassure noble Lords that there is no going back.

On the final question regarding the language—“fixing where possible”—the point is that we are acting under the aegis of the European Union (Withdrawal) Act 2018, which gives us the power to deal with certain things. Let me give an example of what it does not allow us to do, because of the framework of primary legislation. In its 20th report of the 2016-17 Session, the Joint Committee on Statutory Instruments found some defective drafting, but we do not have the power under the withdrawal Act to fix that through this process; we would need some other process. So we have used all the powers we have under the withdrawal Act to make fixes and provide continuity in key areas, but it does not necessarily follow that we have fixed everything through this process; that will have to be done through other processes. That is just the limit of what we can do through primary legislation.

I hope I have been able to answer noble Lords’ questions and provide reassurance about our commitment to smoking cessation and, indeed, about our open-mindedness to future policy changes that may be required for us to go further and take advantage of some of the technologies available to us. On that basis, I beg to move.

Motion agreed.