Tobacco and Vapes Bill (Eighth sitting)

Preet Kaur Gill Excerpts

Committee stage
Tuesday 14th May 2024 Public Bill Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Dame Andrea Leadsom)]

The clause provides quite simply that, if any measures in this Bill did not apply to the parliamentary estate, they would do so by virtue of the explicit mention in this clause. It simply removes loopholes, and I commend it to the Committee.

[Preet Kaur Gill (Birmingham, Edgbaston) (Lab/Co-op)]

I would never want us to be accused of the damning political adage that it is one rule for them and one rule for everyone else, so of course I support the parliamentary estate being subject to the same regulations.

Question put and agreed to.

Clause 75 accordingly ordered to stand part of the Bill.

Clause 76

Regulations: general

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 77 stand part.

[Dame Andrea Leadsom]

Clause 76 provides that any regulations made under the Bill may make

“consequential, supplementary, incidental, transitional or saving provision”.

That is a very good set of words. This enables any regulations to introduce provisions for different purposes, as well as to make different provisions for different parts of the UK.

Clause 77 provides the procedures for making regulations under the Bill. Regulations made by the Secretary of State or Welsh Minister are to be made by statutory instrument. Regulations made by Scottish Ministers are to be made by Scottish statutory instruments.

[Preet Kaur Gill]

As the Minister says, clause 76 provides that, where regulations are made under the Bill, the regulations may make

“consequential, supplementary, incidental, transitional or saving provision”,

and it allows regulations to introduce different provision for different purposes, as well as different provision for different parts of the United Kingdom. The explanatory notes to the Bill cite the helpful example that

“under powers in Part 5 (Notification requirements etc for vaping and nicotine products), different provision may need to be made for Great Britain and Northern Ireland”,

since Northern Ireland uses its own portal for publications. I expect our colleagues in the other place will have their own comments to make about the various consequential and incidental provisions in the Bill, but, as far as I am concerned, I am happy to see the inclusion of the clause.

Similarly, on clause 77, I have no substantial comments to make apart from noting how important it has been to ensure that the important new regulations that we are introducing through this Bill are implemented equally and at the same time across all four nations of the United Kingdom. I echo the Minister’s thanks to Ministers in the devolved nations for the constructive way in which they seem to have engaged with and supported the Bill.

Question put and agreed to.

Clause 76 accordingly ordered to stand part of the Bill.

Clause 77 ordered to stand part of the Bill.

Clause 78

Extent

Question proposed, That the clause stand part of the Bill.

[Dame Andrea Leadsom]

This clause simply outlines the extent of the Bill: part 1 applies to England and Wales, part 2 to Scotland, part 3 to Northern Ireland and parts 4, 5 and 6 to the whole of the UK. It is a standard clause that helps the measures in the Bill to function effectively, and I commend the clause to the Committee.

[Preet Kaur Gill]

As the Minister has set out, clause 78 outlines the territorial extent of the Bill. We have discussed many of these discrepancies with earlier clauses, particularly on the sale and supply of tobacco, vapes and nicotine products. I have no further comments to add.

Question put and agreed to.

Clause 78 accordingly ordered to stand part of the Bill.

Clause 79

Commencement

[Bob Blackman (Harrow East) (Con)]

I beg to move amendment 24, in clause 79, page 42, line 16, leave out “and 8” and insert

“, 8 and (age verification policy)”.

This amendment to the commencement provisions would mean that NC6 (age verification policy in England and Wales) would come into force six months after Royal Assent.

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[Bob Blackman]

I thank the hon. Lady for that intervention. I am always willing to praise people who do the right thing. Unfortunately the SNP Government do not always do the right thing, as many of us know.

Extending the requirements for Scotland to the rest of the United Kingdom is supported by the vast majority of the general public and of retailers surveyed by ASH in 2024. To quote John McClurey, a retired tobacco retailer from Newcastle who, during his 39 years as a small shop owner, successfully implemented the increase in the age of sale from 16 to 18, putting tobacco out of sight in his shops and introducing standardised packaging of tobacco products:

“Like the communities they serve, retailers support creating a smokefree generation by raising the age of sale one year every year from 2027 onwards. However, I know from experience it will be easier for retailers to implement if age verification was required from anyone trying to buy tobacco who appeared to be underage. This won’t apply to existing adult social smokers only to those who look as though they were born after 2008. It’s popular with the public as well as with retailers and it will be a legal requirement in Scotland, so why not the whole of the UK?”

[Preet Kaur Gill]

I thank the hon. Gentleman for setting out the case for his amendment. We have already debated clause 79 to some extent, and I raised my concerns that we were not introducing regulations to close the loophole on the free distribution of vapes to under-18s sooner.

On new clause 6 and amendment 24 I recognise the point that the hon. Gentleman is making, which is that a mandatory age verification policy has been in force in Scotland for anyone looking under 25 since 2017. My understanding is that that is working well and, indeed, we also have Challenge 25 here in England and in Wales, although not on a legislative footing. The policy of providing a buffer can only help to ensure that those who are under-age, but who look over-age, are caught and are asked for ID—provided everyone knows where they stand and the Challenge 25 policy is well advertised.

As we have already discussed, the view taken in the design of these regulations is to put the responsibility for age of sale restrictions with the retailer, rather than the customer. The question the hon. Gentleman is raising is whether to make carrying ID effectively mandatory for customers buying cigarettes or vapes. I have a few concerns about that that I would like to raise. First, quite rightly, in order to be consistent with the rest of the regulations, his amendments put the responsibility for such a policy on the retailers. However, the effect of the policy would be to require customers to carry ID in order to buy these products if they were under a certain age. There does seem to be a bit of a disjunct, as that risks legislating twice for the responsibility to make sure that retailers do not sell to people who are under-age. Does this not suggest that the penalties for breaching the age of sale legislation need to be stronger in order to incentivise retailers to put robust policies in place?

I am slightly concerned that the policy will also remove flexibility when it comes to, for example, shop workers in local corner shops, who know their customers. Would they not end up having to ask people for ID every time, even when they already know they are over-age? Secondly, I just want to ask how the hon. Member envisages this working in the longer term, given that the age of sale for tobacco will rise every year? How will the Challenge 25 buffer be set accordingly? As it stands in his proposals, it would run out in 2033.

My other question is for the Minister. Presumably there has been a conscious decision to not align with the Scottish law on this subject. Can she explain why that decision was taken, on balance, when consistency in the law across Great Britain would surely be beneficial? Moreover, can I ask whether she has discussed this with Ministers in Wales? Once again, I thank the hon. Member for Harrow East for tabling the amendment and I will be interested in the responses to the questions that I have raised.

[Dame Andrea Leadsom]

I have a lot of sympathy with the point made by my hon. Friend the Member for Harrow East, and with his amendment and new clause 6. The hon. Member for Birmingham, Edgbaston mentioned some of the reasons why they are potentially slightly confusing and also, perhaps, unnecessary. I understand the point about the neatness of aligning to Scotland. The hon. Lady asked whether we have discussed this with Ministers in devolved Administrations and, of course, the answer is yes.

The decision we took is that the proposal that we have is adequate. New clause 6 would introduce a requirement for businesses selling tobacco products, herbal smoking products and vaping products in England and Wales to operate an age verification policy. The policy would establish a customer’s age if they look under the age specified by the new clause. The new clause seeks to replicate the existing requirements in Scotland, and the related amendment 24 would mean the requirement to operate an age verification policy would come into force six months after Royal Assent.

For purchases of tobacco and herbal smoking products from 1 January 2034, when anyone born on or after the 1 January 2009 turns 25, the age verification policy would need to be updated to reflect the new age of sale for tobacco or herbal smoking-related products. That means that a person selling such products from 2034 onwards would be required to take steps to establish a customer’s age if they looked like they were born on or after 1 January 2009. The age verification requirement for vaping products would remain the same—that is, to take steps to establish a customer’s age if they look under 25.

Although I welcome my hon. Friend’s intention to ensure that retailers do not sell to anyone under-age, there is a fine balance to strike. We do not want to place undue burden on those retailers who understand their business and customers by introducing new mandatory age verification policies. It is already an offence to sell tobacco and vaping products to anyone under-age, and that is enforced by trading standards, who will continue to take an intelligence-led, proportionate approach to enforcing the law through age of sale test purchases. Retailers should continue to take reasonable steps and exercise due diligence to ensure they do not break the law. Most retailers already follow recommended practice and regularly ask for identification from customers, but, as the hon. Member for Birmingham, Edgbaston said, they do not have to do so every single time if they know who the person is and they always buy products at that shop.

Under the new clause, failure to operate an age verification policy could result in a fine of up to £500 for a business on conviction. The Government feel that that is disproportionate and not what we are trying to achieve through the Bill with the introduction of fixed-penalty notices. The on-the-spot fines will complement existing sanctions, allowing trading standards to take swifter action to fine retailers that sell tobacco or vape products to someone under-age.

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[Dame Andrea Leadsom]

The clause provides a power to make transitional or saving provisions. Transitional provisions address how existing legislation will be phased out or replaced by new legislation, and saving provisions preserve certain rights, obligations or legal consequences from existing statute. Welsh Ministers can make transitional or saving provision relating to the coming into force of clause 27 and schedule 1, which relate to the handing over of tobacco to under-age people in Wales. Scottish Ministers can make transitional or saving provision in relation to part 2. The Department of Health in Northern Ireland can make transitional or saving provision in relation to part 3, and the Secretary of State can make transitional or saving provision in relation to any measures or part that has not been mentioned. This is a standard provision, and I commend the clause to the Committee.

[Preet Kaur Gill]

I thank the Minister for that explanation. I have no further comments to add.

Question put and agreed to.

Clause 80 accordingly ordered to stand part of the Bill.

Clause 81

Citation

Question proposed, That the clause stand part of the Bill.

[Dame Andrea Leadsom]

This clause provides that the Bill may, in due course, be cited as the Tobacco and Vapes Act 2024. This is a standard clause, and I thoroughly commend it to the Committee.

[Preet Kaur Gill]

I have nothing further to add.

Question put and agreed to.

Clause 81 accordingly ordered to stand part of the Bill.

New Clause 2

Tobacco products statutory scheme: consultation

“(1) The Secretary of State must consult and report on the desirability of making a scheme with one or more of the following purposes—

(a) regulating, for the purposes of improving public health, the prices which may be charged by any manufacturer or importer of tobacco products for the supply of any tobacco products;

(b) limiting the profits which may accrue to any manufacturer or importer in connection with the manufacture or supply of tobacco products;

(c) providing for any manufacturer or importer of tobacco products to pay to the Secretary of State an amount calculated by reference to sales or estimated sales of those products (whether on the basis of net prices, average selling prices or otherwise) to be used for the purposes of reducing smoking prevalence and improving public health.”—(Bob Blackman.)

This new clause would require the Secretary of State for Health and Social Care to consult on proposals for regulating the prices and profits of, and to raise funds from, tobacco manufacturers and importers.

Brought up, and read the First time.

[Bob Blackman]

I beg to move, That the clause be read a Second time.

The clause stands in my name and the names of other hon. Members. Clearly, its concern is consultation on proposals for the regulation of profits from big tobacco —a recommendation of the all-party parliamentary group and of Javed Khan’s excellent report. The provision is designed to look at the profits of big tobacco, but big tobacco would not be allowed to pass on any calculated levy to its end customers. At the moment, it makes a veritable fortune every single year from selling its products. The new clause would limit big tobacco’s profits and, in doing so, its ability to market its products, but there would be no impact on, for example, tobacco taxation. My right hon. Friend the Minister might be concerned that the measure might delay the Bill, but the clear intention is to give the Secretary of State the power to conduct such a consultation; it would not prevent the Bill from going on to the statute book or from being enacted.

There has been a lot of debate over this issue for a long time. The Treasury appears to decline to do anything in this regard for some reason, but in my view, and that of the all-party parliamentary group, it is clear that this consultation could be done. The money raised from any such regulation could be directed at the national health service for smoking cessation services and to combat the effects of tobacco and other products, ensuring that people who wanted to quit could be assisted to quit.

I would welcome the Minister’s views. I do not want in any shape or form to impede the progress of this legislation, but I do want to get on record that I will continue to press for this provision, even if it is not agreed today, because I think it will bring into the health service much-needed money from big tobacco to help combat the impact of its products.

[Preet Kaur Gill]

I thank the hon. Member for Harrow East for raising the issue. As we know, separately from the Bill the Government are also introducing a one-off increase to tobacco duty as well as a vaping excise duty. I know that similar proposals to this one have been raised with the Government in the past, through the great work of the APPG on smoking and health. Previous Ministers expressed concerns that the proposals as previously drafted would serve to make tobacco companies pass on the cost to consumers in the shops. Undoubtedly, none of us wants any policies introduced that would come at the expense of consumers but miss their target: the tobacco giants. When it comes to addiction, we know that our most deprived communities are most likely to smoke. I am conscious of making their lives any more difficult. That said, I am certainly no proponent of any policy that would make tobacco cheap and easily available, and indeed it was a Labour Government who brought in a specific tobacco duty in the 1970s in the first place.

I understand that the revised proposal includes provisions to ensure that the Government can raise additional revenue from the enormous profits of tobacco producers, while ensuring the costs are not passed on. It is a complicated proposal that would require a team of officials within the Department of Health and Social Care to conduct market analysis, and for a tax to be set at a rate to hit those profits while regulating the prices in shops. Undoubtedly, something with as many moving parts as that would require thorough analysis and consultation, and I recognise that that is what the clause seeks to do. Given the existing levers we have available to us in tobacco duty and the focus we are trying to put on delivering a smoke-free future, I am reluctant to introduce something to the statute book that would distract from that priority. Through the Bill, there is already much consultation to be getting on with: on vapes, flavours, packaging and much more besides. I congratulate the hon. Member and the APPG on their excellent work, but this is not our priority at present.

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

We heard during our evidence session about the immense damage that is done to our health, wellbeing and the economy, costing the public finances nearly double the amount raised by tobacco taxation. We also heard about the inordinate profits of the tobacco industry and about the idea of a polluter pays levy, which could raise up to £700 million a year. I hope Members would agree that that would help to deliver the smoke-free future that we all want to see.

I am vice-chair of the APPG and we have called for this proposal for many years, and it was great to see it in Dr Khan’s recommendations. The levy is popular and feasible and, as the report from ASH shows, is supported by voters of all political persuasions and the majority of tobacco retailers.

The tobacco manufacturers have the money; they should be made to pay to end the epidemic that their products are causing for our communities. However, I understand that there is still a nervousness from the Treasury and a reluctance on both sides to accept the new clause at this time. I hope that it will continue to be explored, so that the onus is put on to big tobacco, not the taxpayer, for paying for the damage caused by these products.

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[Bob Blackman]

I beg to move, That the clause be read a Second time.

It is my show this afternoon! New clause 3 looks at the notification fees collected by the authorities, so that fees can be used to cover the costs of enforcement, including product testing. It would enable the Secretary of State to change those fees by regulation, and to look at what big tobacco and the vaping industry are doing to introduce novel products.

We have talked throughout the Committee about the ability of tobacco and vaping companies to vary their products considerably. We are of course trying to ensure that we capture everything we can so that we future-proof the legislation. New clause 3 would future-proof elements of the notification fees, raise some money and act as a barrier, frankly, to companies trying to flex their products to avoid the whole point of the legislation, which is to create a smoke-free generation and prevent young people from starting to vape. The Committee has already heard about the attitude and approaches being taken, particularly now by vaping companies, to market their products. The new clause would give power to the Secretary of State to do something about it by preventing those companies from bringing products in that no one wants to see on the market.

[Preet Kaur Gill]

The new clause relates to the testing of nicotine products and seeks to allow notification fees to be used for more than just the administration of that scheme but a wider, more comprehensive regulatory process, which we have supported. We have discussed clauses 71 to 74 on modifying the notification scheme to include non-nicotine vapes and extend to other nicotine products. Will those clauses allow for the notification fees regulations, which set fees at £150, to be amended accordingly?

I commend the hon. Member for Harrow East, as ever, for his work. I must remark that I rather regret that we have scheduled a debate on funding a notification scheme to test products before agreeing on the merits of such a reformed scheme itself. I look forward to coming to that in detail with two of my new clauses shortly, but I note that I do not necessarily agree with the Member that it should be a Medicines and Healthcare products Regulatory Agency competence to conduct enforcement. My issue with this process has been how products are getting on to the market in the first place. I would not want to disrupt or diffuse responsibilities for cracking down on the very real issue of the widespread market in illicit vapes. I think that that should still primarily be a matter for trading standards on the ground. None the less, I commend the Member for tabling the new clause, and I hope that he will support our proposals on testing.

[Dame Andrea Leadsom]

I am grateful to my hon. Friend the Member for Harrow East for bringing this discussion before the Committee. He has given the Bill a great deal of thought, and I am so grateful to him for that. His new clause seeks to change the level of fees for novel tobacco, vaping and other nicotine products, so that they can be used to pay for enforcement and testing costs as well. I support the ambition of the new clause but, as he will know, we already have the ability to test products and to take decisive enforcement action where and when illegality occurs. The notification system, as he will know, is not an enforcement tool and cannot currently be used as such. It is the responsibility of trading standards to ensure compliance of vaping products and to remove non-compliant—that is, illicit—vapes from the market.

To help to tackle illicit vapes, we announced new funding last year to set up an illicit vaping enforcement unit to gather intelligence and conduct market surveillance. This programme of work, led by National Trading Standards, is helping to stamp out criminal activity and disrupt illicit supply, and we have been testing products as part of it. As colleagues are aware, we also recently announced £30 million of new funding per year for enforcement agencies. This will crack down on illicit tobacco and under-age tobacco and vape sales to support the regulations put forward in the Bill. For those reasons, I hope that my hon. Friend will not push the new clause to a vote.

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[Bob Blackman]

There is a degree of repetition in this. New clauses 7 and 8 relate to where tobacco products are sold and the licensing of them. There is a genuine debate, in both the industry and the House, about whether we should have a licensing scheme for tobacco, vaping and other nicotine products. These two new clauses would allow the Secretary of State to introduce regulations both on a licensing scheme and to limit the products that would be made available for sale in particular premises. The whole purpose behind this provision would be to say that the individuals who are selling these products would have to apply for a licence. Presumably, after a consultation, there would be a licence fee. That would add to the ability of the enforcement agencies to know that these products were properly licensed and being sold from licensed premises.

There is of course the issue that this could limit the number of retailers that would be able to sell such products. One concern that I have in this regard is not so much on tobacco but on vaping. We have seen, up and down the country, the rapid growth of stores selling just vaping products. They have—without doubt, without question—been selling to younger people, and we are concerned about the rapid growth of those particular areas.

There has been quite considerable legislation limiting tobacco sales over the years. We can go back over the age of sale. We can talk about the advertising displays. We can talk about keeping the products literally behind shutters so that people have to ask for the products rather than their being openly and clearly available. The two new clauses would get us to a position whereby there would be a requirement for the proper regulation of those markets. I know that the intent behind the Bill is to create a smoke-free generation, but we are taking on the vaping issue as well. At this stage, we propose that, if such a scheme were to be introduced, the Secretary of State would need to consult on those issues. I do not intend to prevent the Bill from progressing, but the Secretary of State will need to consider these things, whether during the later stages of the Bill or subsequently.

[Preet Kaur Gill]

I do not have much to add, but note that when the Bill was introduced some in the tobacco industry lobbied MPs to include a licensing scheme for vapes only. It would be an egregious situation if we were to take a stronger stance on vapes than on tobacco, which is the real killer. I suspect they hoped for the inclusion of something like that primarily because it would slow the Bill down. I thank the hon. Member for Harrow East for tabling a more balanced new clause, which would introduce licensing schemes for tobacco products as well as for nicotine products and vapes.

I have some questions for the Minister. Will she set out why the Government have not opted to set up a licensing scheme for tobacco and vapes? We have a licensing scheme for alcohol in England and Wales, but the Government have never sought to extend it to tobacco, although it would help us to identify shops that sell the products and streamline our enforcement efforts. I appreciate that many of sanctions related to licensing that are often cited, such as the power to take a licence away, are perhaps a less strong argument in relation to this Bill, because we have restricted premises and restricted sales orders, but I am interested in the Minister’s views.

On illicit products, the Government have introduced a track and trace system for tobacco, which is a useful component in monitoring the flow and patterns in the trade in tobacco products around the country. Given the improved provisions for product IDs, which will come into effect for products entering the country when the new vaping excise duty is introduced, we remarked in Committee that this could be an opportunity to look at setting up something similar for nicotine and vaping products.

I fully appreciate the concern of the hon. Member for Harrow East that enforcement will be crucial to the Bill’s success, but my view is that our priority must be to make a success of the enforcement regime that the Bill introduces before considering the case for further regulation. There probably will be a case for further regulation in future.

[Dame Andrea Leadsom]

I am grateful to my hon. Friend the Member for Harrow East, and to the hon. Member for York Central, who proposed a similar licensing scheme; other amendments that have not been debated also proposed the creation of a licensing scheme.

I was frank this morning, and I will be again: the proposal sounds like a licence for those with licences to squeeze out those who cannot get licences and therefore to build more market share for themselves, enabling them to funnel their energy into getting more children addicted to nicotine. That is my personal view. We can debate whether that is the likely result, but it seems extraordinary that the vaping industry should be so in favour of licensing when, on the face of it, it is so clearly against its interests. I find its backing of it quite cynical.

From a practical point of view, His Majesty’s Revenue and Customs already operates a track and trace system for tobacco products, which tracks their movement from supply through to sale. Every business involved in the supply of cigarettes and hand-rolling tobacco must be registered on the tobacco track and trace system, and HMRC can penalise businesses for non-compliance, including by removing their ability to legally buy or sell tobacco products, in the most serious of cases.

As Members will recall, in oral evidence the Chartered Trading Standards Institute told the Committee that HMRC’s track and trace scheme gives many of the same benefits as it would want from a licensing scheme. The Government also plan to introduce a new excise duty on vaping products. HMRC is currently consulting on the new vaping duty, and that consultation has a question about whether to introduce a track and trace system for vaping products to regulate the supply chain. That consultation will close on 29 May, and I feel it would be inappropriate to bring forward a licensing scheme for vapes when the ability to track these products from supply to sale is currently under consideration.

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[Bob Blackman]

I have a lot of sympathy with what the hon. Lady asks for. I ask my right hon. Friend the Minister, in dealing with this new clause and the other new clauses about advertising, to go away and come up with a comprehensive series of amendments that will ban advertising for vaping products in their entirety—not just in sports stadiums and not just on sports shirts, but comprehensively, right across the piece. We can then all support that and make sure we deliver it in the Bill.

[Preet Kaur Gill]

I thank the hon. Member for East Renfrewshire for tabling the new clause. We absolutely share her concern: we must ensure that children are not exposed to marketing and branding that encourages them to vape. I echo the comments of the chief medical officer: if you do not smoke, do not vape. These are not products for children, and we are determined to crack down on companies trying to addict a new generation to nicotine. The principle that the hon. Lady has raised is really important, which is exactly why the previous Labour Government legislated to end sponsorship by tobacco companies.

Although sponsorship for vapes is not prohibited outright, as it is for tobacco, there are clear restrictions on how vapes and nicotine products can be marketed at and advertised to children. For example, the 2016 regulations prohibit e-cigarette product placement or any sponsorship promoting e-cigarettes on radio and TV programmes, where they are most likely to be widely seen. Most crucially, they ban ads for nicotine-containing vapes from most online media, including social media. The very limited exception to that is factual, not promotional, claims on companies’ own websites.

Why has the Minister not aligned the legislation in this respect with the extension of other regulations that we have discussed in Committee? Elsewhere, non-nicotine vapes and other nicotine products are essentially treated under the same regulations as those that affect nicotine vapes.

I again thank the hon. Member for East Renfrewshire for sharing her concerns, which I fully appreciate. I hope the Minister takes this proposal away and looks at it more closely. The restrictions on broadcast sponsorship aside, I would have expected her to be able to share more comprehensive data from the regulators showing what children are being exposed to and where. Will she address that head on and write to us with more detail if she needs to? In the meantime, my greatest concern remains promotions in store and on social media.

[Kirsten Oswald]

The hon. Lady says that Labour is determined to crack down; well, here is her opportunity. She is not cracking down if she does not deal with this issue. She says there are clear restrictions on how these products can be advertised or marketed to children, but children can see football strips and sports stadiums. I do not know about anybody else’s children, but mine watch football on the television, and they can see what is advertised on football strips. I would like her to take that thought away with her.

[Preet Kaur Gill]

I thank the hon. Lady for that intervention, but as I said my greatest concern remains promotions in store and on social media, because that is where lots of young people consume this information. My view is that we need to get on with cracking down on the companies that deliberately sell these products to children in the first place.

[Nickie Aiken (Cities of London and Westminster) (Con)]

I fully support what the hon. Member for East Renfrewshire says about sports marketing and vape companies. I pay tribute to my hon. Friend the Member for Sleaford and North Hykeham for the work that she has been doing in this policy area, and I fully support what my hon. Friend the Member for Harrow East just suggested.

With this Bill, we have perhaps a once-in-a-lifetime opportunity to send a clear message to the tobacco companies. More importantly, we can say to young people, our children and parents generally, “Do not take up vaping.” Vaping has always been meant to be about stopping smoking, but sadly it has become a stand-alone product. I was shocked when I walked through my neighbourhood of Pimlico last week and saw that we now have a huge stand-alone vape shop that sells only vapes.

The new clause seeks to do the right thing, but it does not go far enough, so I ask the Minister whether we can step back, before Report, to understand what the Government can do to send a clear message about all advertising, marketing and sponsorship across the whole nation, whether it is TV or radio advertising or any form of sports sponsorship. We have to treat vapes as we treat tobacco.

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[Kirsten Oswald]

On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 11

Testing of samples of nicotine-containing e-cigarette products

“(1) Regulation 36 of the Tobacco and Related Products Regulations 2016 is amended as follows.

(2) At end insert—

‘(12) The Secretary of State may—

(a) approve and monitor one or more laboratories (“approved laboratories”) which must not be owned or controlled directly or indirectly by the tobacco or e-cigarette industry; and

(b) arrange for an approved laboratory to verify the product requirements referred to in this regulation.

(13) For the purposes of enabling the Secretary of State to perform functions under paragraph (11)(b), a person who produces e-cigarettes or nicotine-containing liquids, or manufactures e-cigarettes or nicotine-containing liquids for export must provide to the Secretary of State (or to such person as the Secretary of State may specify) such samples, at such times and intervals and from such sources, as the Secretary of State may reasonably require.’

(3) The Secretary of State may by regulations make provision that is consequential on this section.”—(Preet Kaur Gill.)

This new clause enables the Secretary of State to approve laboratories for the purpose of testing product requirements of nicotine-containing vaping products set by the Tobacco and Related Products Regulations 2016 and to require manufacturers to provide samples for testing.

Brought up, and read the First time.

[Preet Kaur Gill]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss new clause 13— Report on the powers of the Medicines and Healthcare products Regulatory Agency: vaping and nicotine products—

“(1) Within 12 months of this Act receiving Royal Assent, the Secretary of State must lay a report before Parliament examining the case for giving the Medicines and Healthcare products Regulatory Agency (the MHRA) the explicit power to—

(a) request samples and test vaping and nicotine products as part of the notification scheme; and

(b) recall and remove from the list of notified products vaping and nicotine products which do not comply with product standards.

(2) The report should also examine the case for a requirement for local trading standards authorities to notify the MHRA of any instances where vaping or nicotine products are being sold which—

(a) have not been notified to the MHRA; or

(b) do not comply with product standards.

(3) The Secretary of State may by regulations give effect to any recommendations made in the report.

(4) Regulations under this section—

(a) shall be made by statutory instrument; and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

[Preet Kaur Gill]

I rise to speak to new clauses 11 and 13 on the testing of nicotine-containing vape products. Earlier we debated clause 73, which will allow Ministers to create new exceptions to publication as part of the notification scheme. We of course welcome those new powers, which represent a concession on the Minister’s part. However, the current notification process, which is what products must go through to get on to the UK market, is not as robust as it should be for nicotine-containing vapes.

As we have said, youth vaping is a serious growing issue. In 2021, Labour voted for an amendment to the Health and Care Bill to crack down on the marketing of vapes to children. Since then, according to the most recent survey by ASH, the number of children aged 11 to 17 who are vaping regularly has more than trebled to more than 140,000 British children. Meanwhile, one in five children have now tried vaping.

This issue is not only a concern in itself, but there is the issue of whether all these products are safe and whether they are what they say they are. I have raised serious concerns, for example, about the fact that children are puffing on 0% vapes that actually do contain nicotine, which gets them accidentally addicted. This is something that we discussed at the evidence session and that goes to a fundamental question about the MHRA’s role in the regulation of vapes. Is the MHRA really only the administrator of the notification scheme, or should it have a clearer responsibility to regulate and to take responsibility for the safety of vaping products?

Clause 73 indicates that the Minister agrees that it should. This is something one would expect the MHRA to take an interest in. Vapes are a product with clear consequences for the health of the population. There are risks, and some of the long-term health consequences of sustained vape use are not properly understood, but the Government’s policy is effectively to recommend this product as a stop-smoking aid. The Government, therefore, have a responsibility to be able to say with confidence that the products they legally allow on to the market are what they say they are and are safer than smoking.

We heard evidence from Dr Squire, the chief healthcare quality and access officer at the MHRA. It was an interesting discussion but, when it came to the notification process, what I took away was the fact that she could not say, “This is an absolutely robust system that keeps everybody safe,” and, “That is why the Bill is important.” I supported clause 73 to provide exceptions to publication, which would allow policies to be set where the MHRA would refuse to publish the notification for products that would make them available for legal sale. My concern, however, is about what is missing from the legislation to give the MHRA the information it needs to say confidently whether a product is actually safe.

I want to be clear in case the Minister raises it: new clause 11 is not about undermining the enforcement role of trading standards teams. After a product gets to the market, trading standards proactively ensure that potentially dangerous products are not stocked on shelves, and we have the yellow card scheme for customers to report an adverse reaction to a vaping product. Who is monitoring the long-term risks of these products? I doubt they would be caught by either trading standards or the yellow card scheme, but that is another question.

In relation to new clause 11, however, what I am talking about is the screening of products before they get to the UK market to enable the MHRA to have the information it needs to refuse a notification publication, even if the company has, on paper, met the requirements. I appreciate that the exceptions in clause 73 are not yet defined, but the MRHA does not have the powers to gather the information it needs in the first place in order to make those exceptions. As Dr Squire admitted herself, there are cases right now of products getting on to the market that do not match the product registered through the notification scheme. Those products could have tank sizes that are too large; they could include dangerous chemicals or include dangerously high nicotine strengths.

Our fundamental concern is that these products are now extremely popular with children. That is why I contend that the MHRA should have additional powers to test a proportion of products to ensure that they comply with their notifications. I think any outside observer would contend that that is common sense. The Secretary of State has testing powers for tobacco products, so why not for vapes? Will the Minister therefore support my new clauses, which seek to address that through this Bill? This is not just about the market as we know it today; this is about safeguarding the future of vapes to ensure that consumers can have confidence in those products and that we, as legislators, can have confidence in the products that we are recommending as stop-smoking aids. That is why I commend new clause 11 to the Committee.

Finally, new clause 13 would require the Secretary of State to report on some of the new powers on testing that I have just described, as well as on another power that the MHRA does not have at present, which is to remove notifications from publication. Currently, this power rests with the Secretary of State in the Tobacco and Related Products Regulations 2016 to recall a product if it is deemed to pose a serious risk to human health. This is a high bar. It is my concern that in practice the emergence of such risk can be a slow process.

I have told the Minister before how the limitations of this power were made clear the other year when Elf Bar, which is perhaps the market leader in this space, was found to be selling vapes with tank sizes that were larger than allowed. The responsibility to remove those products from the market actually lies with the producer—quite rightly—but this issue is about the recourse that the Government have when a threat is urgent and a company does not comply.

New clause 13 would also examine the case for a duty to be applied to trading standards that would be similar to the duty on councils in Northern Ireland to share intelligence on non-compliant and illicit products, so that we can better join up the enforcement response at the national level. Once again, I urge Members to support these new clauses and I commend them to the Committee.

[Dame Andrea Leadsom]

I am grateful to the hon. Lady for bringing these issues before the Committee. These new clauses seek to give more powers to the MHRA to introduce a testing regime for vaping and nicotine products, and to ensure that the laboratories conducting the testing are independent of the tobacco industry. They also aim to give the MHRA powers to remove notifications and thus prohibit the sale of products if they are found to be non-compliant.

New clause 13 would require the Secretary of State to produce and lay before Parliament a report to consider whether the MHRA should be given new powers to request and test samples, and to remove vaping and nicotine products from the list of notified products. The report would also have to examine the case for a requirement for local trading standards authorities to notify the MHRA of any instances where vaping or nicotine products are being sold that have not been notified or are non-compliant.

I am very sympathetic to the aims of these new clauses, but the current notification system is not an enforcement tool and should not be viewed as such. It is the responsibility of trading standards to ensure compliance of vaping products and to remove non-compliant—that is, illicit —vapes from the market and stop their sale. It is also the responsibility of trading standards to test a product if they believe that it contains illegal substances or too much nicotine. The MHRA supports this work by providing intelligence from the notification system.

New clause 11 would facilitate the previous new clause by giving powers to the Secretary of State to approve, as part of the testing regime, certain laboratories that are not in any way funded or controlled either by the vaping industry or the tobacco industry.

The Secretary of State can already commission independent laboratories to undertake the testing of vapes, in order to check and confirm that they meet our regulatory standards as set out in the Tobacco and Related Products Regulations 2016. We can also produce relevant guidance to support this work, so the new clause really is not needed. Trading standards, supported by the MHRA, work with local scientific services that are independent of the tobacco and vaping industry in order to test vapes and to take action where non-compliance is found. These testing facilities support our enforcement programmes.

In fact, last year the Prime Minister visited an independent lab in Kent that checks for specific ingredients and harmful substances. The Prime Minister, who was accompanied by the chief medical officer, Sir Chris Whitty, described the laboratory as “a centre of excellence” and said that it was at the frontline of testing, providing vital information in the campaign to tackle illegal vaping.

In summary, although I completely understand and support the aims of each of these new clauses to ensure that products are rigorously tested, adhere to our regulations and do not pose additional risk or harm, we can already test products, and indeed do, using quality-assured laboratories for this work. In addition, there are tough penalties in place for those who break our rules, including unlimited fines and prison sentences. As hon. Members know, we have also provided new funding and support to help local trading standards to enhance their enforcement capacity and to test products. For those reasons, I ask the hon. Lady not to press her new clauses to a vote.

[Preet Kaur Gill]

I say to the Minister that my concern is about certain products entering the UK market in the first place. If the MHRA is the only organisation that can test what has been notified, it will be supplied to us, but we know that what arrives is sometimes not actually what is in the notification process. If they were testing before the product came into the UK, that would be the point at which we want to try to address the growth in the illicit markets. I hope the Minister will consider this, especially before Report.

I will not push new clause 13 to a vote, but I would like to push new clause 11 because it is really important. The point is about what comes into the country. The MHRA in evidence actually said that it recognises that what is notified that eventually enters the UK is not exactly what is on the notification process.

Question put, That the clause be read a Second time.

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[Trudy Harrison]

My hon. Friend makes an excellent point. That is really what I am calling for, although it does not detract from the need to prevent the normalisation of vaping. However, I repeat the request for more in-depth research into the impacts of vaping and nicotine addiction on children.

[Preet Kaur Gill]

Most public places are already smoke free on a voluntary basis. We do not believe it is necessary or proportionate to make such a legal requirement, which would risk increasing the widespread misperception that vaping is as harmful as smoking. In the United Kingdom, vaping is already prohibited on a voluntary basis in most, if not all, places visited by children; public transport—trains, airports, planes, buses, coaches and ferries—most, if not all, sports stadiums; music venues; many hospitals or hospital grounds; restaurants and cafes, at least definitely those used widely by children; and a lot of pubs and bars. As was discussed in last week’s evidence sessions, the health harms underpinning the smoking ban are not proven for vaping, and such an approach would be hard to justify on health grounds. This would be a complicated piece of legislation to introduce, and now is not the time at which, and the Bill is not the place in which, to do so.

[Dame Andrea Leadsom]

I am grateful to my hon. Friend the Member for Copeland for moving the new clause tabled by our hon. Friend the Member for Sleaford and North Hykeham. I think all hon. Members are keen to see much more evidence on this issue, and I absolutely share that concern. I have urgently commissioned research into the impact of vaping on both the vaper and those second-hand breathers-in. As we all heard during the public evidence sessions, and as my hon. Friend the Member for East Kilbride, Strathaven and Lesmahagow set out, we do not have the evidence. We therefore need to provide evidence-based regulation as a matter of urgency, and I absolutely assure hon. Members that that will be forthcoming.

It is certainly the case that the ban on smoking in indoor spaces has been a great public health success story since its introduction in England in 2007 and across the UK from 2006. There is no doubt that the ban has protected many adults and so many children from the harms of passive smoking; it will have saved lives.

We know that vaping is less harmful than smoking, and indeed is a very effective quit aid for adult smokers. Although I have grave concerns about whether we err too far on the side of saying “Vaping is much better than smoking,” and are therefore inadvertently saying to young people that it is fine to vape, which of course it is not, that is why we also always say, “If you don’t smoke, don’t vape, and children should never vape.”

Although smoking in a public place may be seen as a nuisance by some, and there is some evidence that it can trigger asthma attacks, in the same way that pollution or car exhaust fumes can, there is very limited evidence of the potential harms of vaping in enclosed spaces, and simply none to suggest that it is at all similar to tobacco smoking. Vapes emit vapour, not harmful tobacco smoke. Vaping does not burn tobacco or produce tar and carbon monoxide—two of the most harmful elements in tobacco smoke. Evidence of the harm from exposure to second-hand tobacco smoke is well established, and because of its carcinogenic content, there is no safe level of exposure. It is totally incomparable to vaping, where there is very little evidence to suggest that second-hand vapour is anything more than an irritant. I repeat: that is not to say that vaping is good for anyone or a good thing to try. It absolutely is not. We know it is extremely harmful to children, whose lungs and brains are still developing.

In addition, many businesses, venues and spaces have already introduced their own bans on the use of vapes where smoking is prohibited, such as on public transport, on work premises and in many restaurants and bars. In 2016, Public Health England produced guidance regarding the use of vapes in public places and workplaces, which has helped businesses to make informed decisions on their vape-free policies, but given the lack of evidence of any harm from second-hand vapour and the way that the majority of businesses, restaurants and bars self-regulate and have vape-free policies in place, as well as the fact that vaping in enclosed spaces was not raised in our call for evidence as a major issue to address youth vaping, we just do not feel that the new clause is necessary at this time.

We will of course keep this under review and continue to monitor the evidence base. As I said, I have urgently commissioned proper research into the effects in the short, medium and long terms, and I hope to make further announcements on exactly what I am doing during the Bill’s passage.

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[Dame Andrea Leadsom]

I rise to thank all Members, on both sides, for their time, their focus, and their really well thought through and considered contributions in this Committee. The scrutiny has been carried out in the best traditions of this place, aiming to achieve something that this Parliament can be proud of.

I also thank you, Sir Gary, for your excellent chairmanship—[Hon. Members: “Hear, hear!”]—and all the other Chairs who have taken us through this life-changing Bill, as well as the officials and civil servants who have supported us, and the Bill team, who did extremely well in putting this together. Finally, I thank the Clerks, who always brilliantly support everything that goes on in this place.

[Preet Kaur Gill]

I echo the Minister’s thanks. This Bill implements a flagship public health policy, and all of us are privileged to have taken part in the passage of this world-leading legislation. It is really important that we have heard so many powerful testimonies about the health impacts of smoking, but parents are also worried about the increase in youth vaping, so the fact that we are to ban the marketing and sale of vapes to children will be welcomed by many people across the country.

I put on record my thanks to you, Sir Gary, for brilliantly chairing our sittings, and to the Minister, who has been very gracious in her responses. I thank colleagues on both sides of the Committee; it has been brilliant to work with them all and to reach a degree of consensus, although I have no doubt there will be many more things to discuss on Report. I also thank the Clerks and everyone on the Bill team. It has been a privilege.

Question put and agreed to.

Bill, as amended, accordingly to be reported.