Tobacco and Vapes Bill (Sixth sitting)

Rachael Maskell Excerpts

Committee stage
Thursday 9th May 2024 Public Bill Committees

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I support clause 10. We heard compelling evidence from Professor Gilmore last week about the tactics the industry uses to try to get young people addicted to nicotine, so that it can continue to profit from their buying the products for the rest of their lives. We also heard from Professor Gilmore about emerging evidence showing that exposure to nicotine at a young age, particularly as a teenager, can rewire the brain, making it more difficult to quit. I therefore welcome the powers in clause 10 that allow the Government to be flexible and respond to changing techniques in the market in order to stop children becoming addicted to nicotine, but why do we not just make it illegal to sell nicotine of any kind to children?

[Rachael Maskell (York Central) (Lab/Co-op)]

I appreciate being called to speak to clause 10, which is a very important part of the Bill. As we have heard many times already, the industry will look at every possible mechanism to try to bring about a new generation of people who are addicted to nicotine and make it harder for them to quit. That goes not just for people under 18 but for those in later adolescence and adulthood.

My concern is with products already on the market that are being taken up quite readily. Next week, the Health and Social Care Committee will look at the public health measures being taken in Sweden. We will see how nicotine pouches—snus, as they are referred to there—are being used as an alternative to smoking, really quite extensively.

[Dr Johnson]

Does the hon. Lady agree that nicotine pouches are starting to be marketed to young people in a similar way to vapes, with an increasing amount of flavours, a relatively inexpensive price per unit and horrifyingly high levels of nicotine?

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[Rachael Maskell]

I am grateful to the hon. Lady for making that point, which is certainly where I want to go with my speech. She is right: the industry will look at every single option to reformulate its products, including introducing nicotine pouches disguised with various flavours and colours—you name it, they will do it—to induce young people to engage with them. If we do not get ahead of the curve, the industry will be right there—I guarantee it.

We need to wise up to the tactics the industry has deployed over decades and recognise that, whether with pouches or something else further down the line, it is again on the move to sell its products in a reformulated way. I urge the Minister to look at whether this should be covered by secondary legislation—I know she is concerned about the amount of secondary legislation that will come through from the Bill—or in the Bill as vaping is.

[Bob Blackman (Harrow East) (Con)]

Does the hon. Lady not accept the counter-argument that putting things in the Bill means that we have to change primary legislation, but that by doing things via regulations, the Government can make changes in a speedy fashion and combat big tobacco’s fleetness of foot in bringing terribly addictive new products to the market?

[Rachael Maskell]

I am grateful to the hon. Member for that, and I agree that we want to be able to adapt as soon as the market does, but right now the industry is promoting nicotine pouches and we must ensure that we take the earliest opportunity to bring them into the scope of legislation, so that the industry does not just think, “Well, we’ve got six months now to promote our product.” Given the way the industry is behaving, this is a bit like a game of cat and mouse, and we need to do whatever we can to ensure that we are ahead of the curve, whether that is through primary or secondary legislation.

I ask the Minister to ensure that the regulations are brought forward expeditiously and that the first set—we may need further sets; I appreciate what the hon. Member for Harrow East says—is introduced in the shortest time possible. Can she tell the Committee what the timescale will be for that, so that we know how quickly these other products will be brought within the scope of the Bill, ensuring that young people are protected?

[Dr Johnson]

I agree with the hon. Lady and with my hon. Friend the Member for Harrow East. Clause 10 applies to clauses 7, 8 and 9, giving the Government flexibility on all three. As the hon. Lady said, it is great to have the flexibility to bring in regulations to amend clauses 8 and 9, but on clause 7, can she think of any good reason why we would want to be able to sell nicotine products to under-18s?

[Rachael Maskell]

The hon. Lady is following up on a theme that I probed at earlier stages of the Bill, notably on Second Reading. I believe that we need to look at stringent measures, so that people do not have their choices restricted by the addiction that they adopt. It is really important that young people today, or anyone else who engages with these products, do not get addicted at an early stage. We have to look at the issue of the impact of addiction in that wider realm, as we are doing on the Health and Social Care Committee, which is looking at products that are addictive and harmful to health in connection with the public health measures that we are scrutinising.

The hon. Member for Sleaford and North Hykeham makes an important point, and at a later stage of the legislative process I hope to examine how we address the drug nicotine and its harmful impacts on young people and more widely. Addiction has been utilised by people who exploit the lives of others for their own profit, and we need to ensure that they do not get the opportunity again with children, young people or adults. They plague those who live in the greatest deprivation in our country, driving them to more harmful addiction. I therefore welcome the legislation, but I believe that we can go further. Given the industry’s activities right at this moment in trying to find new ways around legislation before it is even on the statute book, the Committee needs to be wise about ensuring that it does not get that opportunity.

[Kirsten Oswald (East Renfrewshire) (SNP)]

Everything that the hon. Member for York Central just said is worth reflecting on. Clause 43 applies to Scotland, and we are also talking about clause 10.

I spent a little time looking at nicotine pouches, which suddenly seem to be everywhere—or perhaps it is just that I am finding them advertised to me. I am definitely not the right person to advertise them to, but whenever I go on to social media, I inexplicably find them appearing before my eyes. There are a whole lot of questions around that. I will not be taking them, so that is fine, but other people will. We have heard about the uptake among young men in particular, which is concerning, because we heard some powerful evidence from health experts about the real harms that can be caused and the addiction that will follow people throughout their lives.

All the time, industry is finding new ways to hook young people. Some of the websites that I have looked at suggest that the pouches are a way to “avoid the health risk”. That is obviously not true—it is patent nonsense, actually. They also suggest that, for a sportsperson, “according to some reports”—that is me quoting again—there are “performance” benefits. Again, that is patent nonsense. It is obviously absolute rubbish, but I think it speaks to the narrative that surrounds pouches, as if they are somehow okay—a good thing—and they are not going to cause the harms that other nicotine-based products do. But of course these things will cause harm, and the addiction risk and health challenges are still there, too. The social normality, acceptability and prevalence of these things is deeply depressing. Their use by sportspeople in particular puts them across with some kind of veneer of being okay. They are not okay; they are deeply damaging to health.

Unsurprisingly, I am always keen to hear from the Minister about advertising and football strips, but to take that a step further, because we are talking about the same sports-based area, will she say how we can use legislation to keep ahead of companies that are so fleet of foot in hooking into things that people are interested in to promote these products directly or, more concerningly, indirectly?

[Dame Andrea Leadsom]

I wholeheartedly endorse almost everything I have heard. I share hon. Members’ concerns and applaud them for their commitment to solving the issue of nicotine pouches. As my hon. Friend the Member for Harrow East rightly pointed out, should the industry find a way around something in the Bill, we would have to legislate again with primary legislation. The right thing to do, therefore, is to take powers to make secondary legislation that gets on top of the issue and future-proofs us, so that right across the United Kingdom we can tackle this appalling scourge: the tobacco industry’s determination to get our children addicted.

Extraordinarily, the tobacco industry dominates the UK nicotine pouches market, and it claims to self-regulate—that is, it claims not to sell to under-18s. That is absolutely extraordinary. A recent study suggests that although nicotine pouch use is low among adults, with roughly one in 400 adults in Great Britain using them, nicotine pouches are increasingly popular with younger, largely male audiences. The Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment has identified gaps in research and flagged that the long-term health harms are not known, but use by non-smokers is likely to be associated with some adverse health effects due to the nicotine.

We all know that other nicotine products need to be clamped down on. We will not need to consult on age of sale restrictions on nicotine products; we will be able to use regulations, hopefully in this Parliament, with implementation from 2025. It is certainly our plan to consult on all of this regulation to get ahead of nicotine pouches and other nicotine products with a view to implementing the regulations in 2025.

[Rachael Maskell]

I do not know whether the Minister is aware that the strength of the nicotine in these products is excessively high—much higher than in other products—and so they rapidly bring about addiction. When the Government brought forward measures to try to educate the country about alcohol use, they did a comparison. Perhaps it would be helpful to do a comparison about the amount of nicotine that individuals are taking through a nicotine pouch, because the public would be alarmed to know that we are talking about their taking multiple factors of nicotine into their bodies.

[Dame Andrea Leadsom]

The hon. Lady is absolutely right; they vary from 2 mg to 150 mg per pouch. I imagine that that variation would make it hard to provide a complete comparison, but she is quite right that education will be a big part of the implementation.

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[Dame Andrea Leadsom]

My hon. Friend makes a good point. The Bill takes powers to bring forward the age of sale restriction, and that in itself will not require further consultation. It is my expectation that, if possible, that will be brought forward in this Parliament. However, as has been explained, if we put something in the Bill, the industry will get around it by saying, for example, “This doesn’t contain nicotine”—except it does, as we have already seen.

The other thing I want to raise with hon. Members is that clauses 61 to 63, which will grant the ability to restrict flavours, packaging and location in store, will also apply to nicotine products. Those measures are clearly designed to reduce their attractiveness to children.

[Rachael Maskell]

In response to my questions and accepting the clause as it is written, can the Minister give the Committee an assurance about when the regulations will be brought forward to ensure that products such as nicotine pouches will come within scope of the Bill?

[Dame Andrea Leadsom]

All I can say to the hon. Lady is that she has heard me, and I am determined to bring that forward as soon as possible. There are good reasons for not putting the provision on the face of the Bill, which are to do with future-proofing. I can only give her my absolute assurance that, as soon as humanly possible, I will bring the regulations forward for consultation where necessary and for implementation where not.

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We need clarity that vending machines could be included in the regulation-making powers granted under this or other clauses. I have no desire to divide the Committee on these clauses and support their inclusion, but I would be grateful to hear from the Minister.

[Rachael Maskell]

If I might be so bold, I think the Minister is making life slightly complicated for herself. We know the impact that taking smoking products out of the line of sight of people who go into shops or supermarkets has had. Putting them in closed cabinets has very much had the effect that we would want. People do not see the products, but they have to request them; they are not on display for people to just glance an eye over. They are simply not there in the line of sight.

If the same legislation applied to all vaping and nicotine products, that would make things simpler for shopkeepers and supermarkets. They already have the shelving and the shutters; it is not as if they would have to make a financial investment in new shelving. They would not have to do anything different—just pick up the vapes and put them into a contained, enclosed space. I do not see any reason why that could not be in primary legislation, because it would be so simple, and I believe the expectation of the public is already there.

I walked down a street in York just the other day, and almost every shop had their little vape display. Putting them behind the counter, behind screens, behind shutters, would be the simplest method of dealing with that. We know it is effective for smoking. There is no reason why tobacco products should be dealt with at a different standard than vaping products when people go to purchase them, and we would get the effect of “out of sight, out of mind”. We know how much the industry spends on packaging to draw the eye to products, and how powerful that is. Putting them out of sight would have the required effect of reducing people’s thinking about those products.

Simplifying and bringing the legislation into line, for shopkeepers, the public and for us as legislators would meet the public expectation that this is what will happen. I do not think we need separate legislation to deal with vapes one way and smoking products another. Let us just pool it together, make it simple and say that this is about protecting the public. I do not think anyone will bat an eyelid.

[Dr Johnson]

I rise in support of clause 11 on restricting the display of vaping and nicotine products. I have been horrified to see that after the Government, with good intentions, made it difficult for children to see sweets at the counter, to reduce pester power and help protect them from obesity, the sweets were in many cases replaced by vapes. The Government are doing exactly the right thing in taking the powers to look at displays. As has been mentioned, the ability and flexibility of doing so through regulations means that we can move swiftly when the industry seeks to get round the latest rules. I think that is great.

I have two examples for the Minister. Would they be covered by paragraph (1)(c)? The first is a mini-mart in Grantham. The entire shop window is covered in pictures of things such as Kinder chocolate, Haribos, fruit and very large-size vape devices in bright colours. I was in WH Smith in Nottingham last weekend; this is a shop that sells children’s books, children’s toys, sweets and children’s stationery, yet at the till there is a very large video display of vape adverts immediately behind the shopkeeper’s head. Will these two types of advertising and display be covered by the regulations?

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[Bob Blackman]

I want to put one issue to the Minister before she sums up these clauses. Obviously, the overwhelming number of retailers will wish to conform to the rules and regulations under which they exist. On re-reading the Bill, I notice that it does not cover the contents of products. For example, we have cited the issue of so-called nicotine-free products that contain nicotine and, indeed, many other products that may have different amounts of nicotine from what is stated. We hear anecdotally of some suppliers wanting to reduce the amount of nicotine in vapes to get people to buy more of them because the nicotine hit is insufficient. Under these powers, will trading standards officers have the opportunity to look at those products and take action against retailers who are clearly selling products whose contents clearly do not accord with what should be in them?

[Rachael Maskell]

I want to pick up on this point as well because it is incredibly important, and we cannot put the responsibilities on to trading standards if they do not have the tools to do the job. Clearly, this is a new field and, as we have discussed throughout the Bill, new products will come out and be marketed if we do not get ahead of the curve. It is therefore important that we ensure that new testing kits are made available and that we look at how they can be brought into play.

We heard strong evidence last week about the benefits of introducing a track and trace system, which would simplify the work of trading standards. If a product has not been through that process, and there is therefore not an authoritative basis on which to say that it can be sold, it would clearly be an illicit product. If a proper track and trace process was put in place, that could aid the work of trading standards, and addressing the real challenges we are trying to deal with through these clauses would not require such extensive resourcing.

Will the Minister therefore comment on her appetite for bringing in a track and trace system for vaping and other nicotine products to get ahead of the curve? That would ensure that the illicit trade is suppressed and does not rear its ugly head and that it is as easy as possible for trading standards to uphold every part of the Bill.

[Dame Andrea Leadsom]

This is obviously an incredibly important area of enforcement, and successful enforcement is integral to the success of this policy.

To the question from the hon. Member for Birmingham, Edgbaston about Operation Joseph, in the year before the operation—2022-23—2.1 million illicit vapes were seized by trading standards across England. In the same year, 1,199 test purchases were carried out by trading standards in England, with 27.3% resulting in an illegal sale. Those are the numbers. As the hon. Lady says, Operation Joseph has had £3 million of investment over two years, led by National Trading Standards. It conducts a range of illicit vape enforcement activities, including data collection and analysis of the scale of illegal products and under-age sales; market surveillance; under-age sales testing; court enforcement action; and upskilling of trading standards staff. A further operation—Operation CeCe —was established in January 2021 as a joint venture between National Trading Standards and His Majesty’s Revenue and Customs to tackle illicit tobacco sales.

So those individual measures are in place. As hon. Members will know, the Medicines and Healthcare products Regulatory Agency looks at the product notifications for legal products, which have to meet the compliance standards of the MHRA. It is then for trading standards to enforce, and they have had a significant increase in resources to tackle enforcement, as I have set out. I am obviously happy to write to Members with more detail should they wish.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clauses 20 and 21 ordered to stand part of the Bill.

Clause 22

Power of ministers to take over enforcement functions

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

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[Preet Kaur Gill]

The amendment is very simple: it would amend clause 24, which introduces fixed penalty notices for retailers that breach age of sale, proxy purchasing and free distribution restrictions on tobacco, vapes and nicotine products, by doubling the fixed penalty notice from £100 to £200.

The need for the amendment is clear. In 2022-23, national trading standards identified that 20% of the 1,000 vape test purchases carried out with retailers resulted in an illegal sale. In 2019-20, 50% of councils that undertook test purchasing reported that cigarettes or tobacco products were sold to under-age people in at least one premises. Despite existing regulations, there is a big and widespread problem, which suggests that the current penalties and fines, which can end up as high as £2,500, are an insufficient deterrent. I strongly support giving trading standards officers the power to issue on-the-spot fines to retailers doing the wrong thing, but the current level of the fine is too low.

My amendment would increase fines to £200, precisely doubling the deterrent in the Bill. Under the Bill as drafted by the Government, offenders can be forced to pay only £50 if they pay off their fixed penalty notice within 14 days, and it is surely too easy for those breaching the law to factor that in as the cost of doing business. Stakeholders including the Association of Convenience Stores and the Local Government Association agree that £100 is too low and that £200 makes logical sense as the level at which to set fines, equalising it with the level for other, similar offences, such as that proposed in the draft regulations for the disposable vapes ban. In the Government’s consultation, £200 was also the most popular response—three times as many respondents supported £200 over £100.

The other reason why my amendment is important is that the penalties from fixed penalty notices can be retained by the local authority. I have raised my concerns, as others have, about the decline of local trading standards, and the amendment would increase the funds they have available to enforce other aspects of the Bill, including regulations yet to be made under it. All of that comes with a cost, and anything that we can do to give local authorities the tools they need to enforce the regulations, the better. I note that clause 26 would provide the power to amend the level of the fixed penalty notice by way of regulations, so the issue could be revisited if needed.

I urge other Committee members to support my amendment in order to strengthen enforcement and provide a proper deterrent to rogue retailers that choose to sell addictive and dangerous products to children.

[Rachael Maskell]

I rise to support my hon. Friend the Member for Birmingham, Edgbaston. I completely agree that when we set these figures, we often forget that the economy has moved on so much, and that the rise in inflation has meant that so many things cost so much more. Just £100 is a very small amount to many shops, which take their cut from these products. It is therefore essential that we move into the realms of reality, not least because the consultation advised the Government that £200 would be an appropriate starting point and would have public support.

Clause 26 says that the figure can be amended by the Secretary of State, should they choose to do so. So the amendment would not place a limit in primary legislation, but it would make this a more realistic deterrent to ensure that shopkeepers abide by the law. It is also really important to have an incentive for them to ensure that they are fully up to speed with their obligations. This change would focus their minds as regulations are introduced, as the Minister alluded to, and ensure that they keep themselves up to date, because they know that the penalty makes it worth doing that. I therefore urge the Committee to adopt my hon. Friend’s amendment. It is a simple measure that would not cause the Minister any grief as the Bill passes through its later stages.

[Dame Andrea Leadsom]

I am grateful to the hon. Member for Birmingham, Edgbaston for bringing this discussion to the Committee, and I fully appreciate the sentiment behind the amendment. I completely understand why it is attractive to raise the fixed penalty notice and make it more material to the individual, but I urge hon. Members to take into account the fact that local trading standards take a proportionate approach to tobacco and vape enforcement. The Bill proposes fixed penalty notices of £100 to enable trading standards to take swifter action by issuing on-the-spot fines, rather than needing to go through lengthy court processes. Littering, parking or under-age alcohol sales attract on-the-spot fines. The proposal in the Bill is for £100, or £50 if it is paid within two weeks. That avoids people thinking, “I can’t pay this, so you’ll have to pursue me through the courts.” That creates an incentive for these issues never to come to court, and it can clog up court time and so on. I fully appreciate the hon. Lady’s point, but this is about practicality.

I find it slightly odd that the hon. Lady says £100 is affordable but £200 is not. I would be shocked to get a £100 on-the-spot fine, and I am sure she would, too. Most retail workers would find a £100 fine to be quite devastating vis-à-vis their daily cost of living. I fully understand the sentiment behind the amendment, but £100 is in line with the precedent set by penalties for comparable offences. The fixed penalty notice for under-age alcohol sales is £90. If the penalty were raised to £200, as the amendment suggests, trading standards could issue higher on-the-spot fines, but how many of us have that kind of money on us? It would push a person into severe difficulty. As we have discussed, there is a very swift escalation—it is a “two strikes and you are out” policy—and there is the ability to take the business to task, too, so I think the current penalty is actually quite stringent.

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[Dame Andrea Leadsom]

I completely agree; the hon. Lady makes a good point. What people would see as a deterrent is an open question. I would see a £100 fine as a deterrent; I do not have £100 in my purse, so I would have to go to the cash point. I would not be keen to do that, and Members of Parliament earn quite a bit more than most retail workers. That is the truth of it. I actually think that setting the fine in line with the £90 fine for the offence of selling alcohol to someone under age is quite a material deterrent.

[Rachael Maskell]

I think the Minister is making slightly the wrong comparison. A retail outlet will have a till, and that till will have money in it. Therefore, it will be the business, not the shop worker, paying the fine. She makes the point that for one person, £100 could be incredibly steep, but for someone working in a venue that sells products out of the scope of the legislation, paying £200 out of a till is not really out of the ordinary, and these businesses make extortionate profits out of these things. I wonder if she could address that point.

[Dame Andrea Leadsom]

The hon. Lady makes a good point. There is an open question as to what the right level is, but it is for trading standards to decide whether the individual member of staff or the business pays the fine. So this is a very relevant point, but it is not just about taking the money out of the till. That is not necessarily the choice that trading standards would make; the fine may well be imposed on the individual.