Tobacco and Vapes Bill (Seventh sitting)

Debate between Tristan Osborne and Caroline Johnson

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Dr Johnson]

I am not clear about that either, but I am sure the Minister will elucidate what exceptions he sees and when someone or somewhere would be used for selling such products without a licence.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

When it comes to alcohol licensing, exceptions for members’ clubs are, of course, already in statute, so we do have exceptions in other licensing regimes. Does the hon. Lady agree that the online sale of vapes, which constitutes a significant market, might also be an exception with regard to brick and mortar premises? The exceptions covered by the Bill might relate to the type of sale and the area of sale.

[Dr Johnson]

The hon. Gentleman makes a good point. It is important, however, that those who are selling online and those who are selling in shops have to have a licence to do so. I hope that the Minister does not intend to exempt online retailers from the need to have a licence to sell such products—he is shaking his head, so I suggest that is not the case, which is good.

One reason for tabling new clause 10 was to highlight the importance of ensuring that online retailers are held to the same standards as those real-world retailers. We have talked previously about ensuring that online apps and online sales cannot be used as a get-around—similar to vending machines, for example. It is important to ensure that the online world is not used to get around the Government’s intention to prevent smoking and the purchase of smoking, vaping and nicotine products by under-age individuals.

To return to clause 19, subsection (5) requires Welsh Ministers to consult with relevant stakeholders before making regulations, which is sensible. Subsection (7) specifies that the regulations are subject to the affirmative resolution procedure, which for Wales means that the proposed regulations must be formally approved by the Senedd before becoming law, increasing democratic accountability and providing an extra layer of scrutiny. Respect for Welsh devolution, as we talked about in the last session, is therefore included within the Bill.

Schedule 3 provides for retail licensing schemes in Wales, making provision regarding the granting of a licence in Wales, including provisions meaning that a licensing authority cannot grant a licence to premises in a particular area, for example, in proximity to a school, and limiting the number of licences within a particular area. We heard previously that specifying that licensed premises should not be near a school could cause difficulties in some rural areas where there may be only one shop in that village and no shops for many miles around it. That is one of the reasons decisions are made locally, because the local individuals providing those licences know the local circumstances, and that would need to be done cautiously. The regulations will also specify the duration of the licence, how it is enforced and the appeals process.

Clause 20 relates to offences in connection with licences in Wales and sets out how offences are committed, along with the penalties that may be put in place. I will not go through that in any more detail.

Clause 21 talks about the financial penalties in Wales. We have talked previously about how it is a matter for the devolved nations to decide how high those penalties should be. Subsection (1) grants the local weights and measures authorities in Wales the powers to impose those financial penalties relating to a breach of conditions attached to a personal or premises licence.

Schedule 4 outlines the procedure for local authorities in Wales, such as trading standards, to impose financial penalties for breaching licence conditions. Again, before imposing a penalty, authorities must issue a notice of intent and allow time for it to be challenged. If a penalty is imposed, a final notice is issued, which can be withdrawn or reduced, and the person can appeal the decision or the penalty amount to the magistrates court. Unpaid penalties can be recovered as if they were payable under an order of the county court and proceeds, after enforcement costs, are returned to the Welsh Consolidated Fund.

Clause 22 is the repeal of register of retailers of tobacco and nicotine products in Wales. It proposes to repeal chapter 2 in part 3 of the Public Health (Wales) Act 2017, which established a regulatory framework for retailers of tobacco and nicotine products through a centralised registration system. Clearly, if this Bill passes, that provision will no longer be required because the clauses in the Bill provide for new provisions. Clause 22 repeals that chapter of the 2017 Act so that it can be replaced, which is sensible.

Tobacco and Vapes Bill (Eighth sitting)

Debate between Tristan Osborne and Caroline Johnson

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Dr Johnson]

The Minister says that it is similar in Scotland—I would be grateful if he could confirm whether that is related to individual cases or to a wider takeover of a failing Department. The Minister has talked a lot about the proportionality of the offences, fines, and punishments that can be chosen by trading standards, and he says that he trusts trading standards to ensure that that is proportional to the offence on each occasion. The concern is that the clauses would allow the Secretary of State to interfere with that by taking over the proceedings or the decision to enforce in a particular case, which would mean, for example, that if a Secretary of State was concerned that his best friend was running a shop and was about to get into trouble, he could intervene on the basis of this legislation and prevent that person from having proceedings. Likewise, if an Opposition politician was in the same situation, he could intervene to make proceedings much harder and harsher than they would normally have been.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

Will the hon. Lady give way?

Tobacco and Vapes Bill (Fifth sitting)

Debate between Tristan Osborne and Caroline Johnson

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[Dr Johnson]

Indeed, it does seem contradictory, if not counterintuitive. It also leaves us with a bizarre situation where, were someone to be a bassoon player, for example, and they wished to buy these products to use for the alternative purpose of drying their keys, then they would have to get someone else to buy them because they would not be able to buy them themselves. For a child born after 1 January 2009 and learning to play such an instrument, either the market will need to provide another opportunity to buy such a product, or the child will need someone else to buy the product for them. That does not make sense. The rolling age of sale that we discussed in clause 1 means that, over time, the number of individuals wanting to buy the product for their instruments but not allowed to, compared to the number of people allowed to, would inevitably diminish. We would have a larger group of people trying to find an ever smaller group of people to buy their cigarette papers for them for that purpose. To some extent, it would be more sensible to remove subsection (3) all together because it creates a loophole that will be used almost entirely for illegal uses of these papers. There is a market already providing a reasonably priced alternative for people to use for their instruments—which in practice are better for instruments in any case.

The final point is on the burden of proof. As a defence, someone purchasing the product on behalf of another has to prove they have no reason to suspect that the person was born on or after 1 January 2009. What does that really mean? Is that a reversal of the burden of proof? Is it saying a person has to prove their innocence rather than the state having to prove them guilty? In what circumstances would it apply? In what circumstances is it necessary for someone to buy cigarette papers, other than the oboe player or the saxophone player? I guess if someone in his or her 70s attends a corner shop but has forgotten their ID, they could ask somebody older to buy the papers for them; I guess that would be okay. They may find that they have come with a veterans card, thinking that they can use it because it is usable for voter ID, but that particular type of ID is not included; we have discussed widening the scope of those documents.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

I understand that the term “cigarette paper” clearly indicates that the primary use for such an item is likely to be tobacco usage. However, it is not exclusive. As a model maker, I use cigarette papers in model making. I understand they are also used in art and in other activities. Although I am not suggesting that there are no alternative products to cigarette papers, it is not 100% exclusive. With respect, I think the clause refers to a person buying cigarette papers for another individual for a purpose other than smoking—if that can be proved. I accept what the hon. Lady is saying, but think she is stretching the point quite a lot.

--- Later in debate ---

[Dr Johnson]

I am going to disagree with my hon. Friend on that point. There will be licensing for tobacco products, and part of the due diligence of setting up to sell such products includes familiarising oneself with the legislation as it stands and thus with the regulations around signage, buying and putting up the appropriate signs, and providing the appropriate training. The challenge occurs if the Government seek to amend the notice, at which point they would need to ensure that they had given adequate notice and information to the company to ensure that it had the time, resources and information to put up the correct signs.

[Tristan Osborne]

On signs, if we accept the premise that the law is changed—as we have done in clause 1—to include a rolling scale with the date being 1 January 2009, signs will have to be updated in any event to reflect that. The current signs about being 18 would have to be removed. On the definition on the signs—tobacco products versus relevant products—is it not clearer to the public, who are going to be the purchasers of the products, if it is tobacco products? It does not preclude extra signage, which exists in many stores, of what can and cannot be purchased. While I accept the premise of the idea of relevant products versus tobacco products, for the public it would be clearer if it were tobacco products.

[Dr Johnson]

The hon. Gentleman is right, of course, that those selling tobacco products legally now will need to change their signs to have the date of 1 January 2009 on them, as opposed to the age of 18, because that will be the law: that clause has now passed, and I expect that it will continue its passage through the House and the other place, because it has broad support among the public and within Parliament.

Tobacco and Vapes Bill (Sixth sitting)

Debate between Tristan Osborne and Caroline Johnson

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[Dr Johnson]

Amendment 96 and clause 12 relate to vaping and nicotine product vending machines. I support the clause; indeed, if one looks at proceedings on the previous, Conservative iteration of the Bill from earlier this year, one will see that new clause 4, which was signed by just under 40 Members proposed a ban on vaping product vending machines, and the lead name was mine. I was concerned that vending machines would be used by children to obtain vaping and nicotine products. That loophole in the law that would make it easy—as we have seen with cigarettes in the past—for youngsters to circumvent the age-restricted product legislation designed to protect them, by allowing them to buy things from a machine that was not checking how old they were. I am therefore clearly supportive of this legislation.

Clause 12 makes it an offence for a person who manages or controls a premises to have a vending machine that sells vaping or nicotine products—

“an automatic machine from which”

vaping or nicotine products “may be bought”. Again, I ask the Minister to look at the principle of machines “from which” these products “may be bought” and to reconsider the wording to ensure that the industry cannot sell products using an app or online platform that can then be collected from a dispensing machine, in the same way as someone might buy something off a retailer and collect it from another retailer or a lock box collection point.

Banning the sale of vaping products, nicotine products and cigarette papers from vending machines would, by virtue of the various clauses in the Bill, including clauses 12 and 17, be a UK-wide provision. That would be beneficial because it would have consistency across the UK in a positive direction. The clause introduces a new offence, as there are currently no restrictions on the use of vaping or nicotine product vending machines in the UK, in the way that there is with tobacco vending machines. This is a new offence, and in my view a welcome one.

Self-service vending machines provide an anonymous, unregulated environment where individuals under the legal age could otherwise purchase vaping or nicotine products without any face-to-face interaction with a retailer, clearly increasing the risk of under-age sales. The offence will come into force six months after Royal Assent, which means that premises that currently contain a vape or nicotine product vending machine will have time to remove it or to stock it with a product that can legitimately be sold to younger people.

The primary rationale behind the restriction on vape vending machines is to reduce vaping rates, particularly among minors and children. The Government’s aims, as I understand them, are to protect young people from the harmful effects of vaping by limiting their access to vaping and nicotine products. Vape or nicotine product vending machines, which may also be used for pouches, are seen as a mechanism to bypass the responsibility of retail staff in ensuring that restrictions are met, contributing to increased sales.

The fine is level 4 on the standard scale, which is similar to that for selling over the counter. That makes sense to me, but I want to ask the Minister who qualifies as a person who manages or controls a premises? If it is a tenanted property, does that mean the landlord or the tenant who has control of the premises? If it is a larger retailer, such as a large supermarket, who controls those premises? Who takes the blame there? Is it the person who was on shift as the supervisor? Is it the store manager? On a more general basis, is it the regional manager or the managing director of the company? Who is responsible for managing and controlling those premises? The Minister needs to provide guidance on that so that people understand their responsibilities and so that, in the event a crime is committed and a vending machine is put in place, fingers are not pointed in every direction, making it impossible to work out whose responsibility and fault it was, such that nobody is held to account for the breach.

The Department of Health and Social Care has produced an impact assessment for the Bill, and paragraph 477 says:

“Regulating vape flavours, packaging, and presentation, as well as point of sale displays, and banning vending machines which sell vapes and nicotine products is expected to reduce the number of people taking up vaping, and therefore it is expected that there will be environmental benefits from reduced litter from vaping products.”

The clause will therefore benefit the health of not just our children but the environment in which they live and grow.

Paragraph 781 of the impact assessment highlights the following information about vending machines and under-age sales:

“A survey conducted by ASH”—

which gave evidence to our Committee last week—

“found that 6.6% of 11–17-year-olds who currently vape used machines as a source of vapes.”

Given that vaping vending machines are not currently that common, that seems quite a high figure. Without a ban and the implementation of the clause, that figure will surely increase.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

I appreciate the point that the hon. Lady is making and those that other Members have made. As I understand it, we already have a law that bans people from purchasing vapes from a customer-managed vending machine. The only vending machines that should be selling vapes are managed by someone else. Can I just clarify that that is the case, because I think there is some confusion about how people are getting these vapes at hospitals and particularly in mental health settings? I have a concern about that because it puts vulnerable people, in a sense, with an addictive product. Can I just clarify that vending machines for vapes are currently not allowed in this country, except where they are not individually customer operated?

[Dr Johnson]

I thank the hon. Member for his intervention. I will come to amendment 96 and the mental health aspect shortly, but I will deal with the clause first, which makes sure that these vending machines are not available. At the moment, one can buy nicotine products in a vending machine where those exist. As I said, the ASH survey showed that 6.6% of 11 to 17-year-olds who currently vape have access to vapes through a vending machine, so this is happening in the UK already. The hon. Gentleman will have heard me say earlier that, until this Bill passes, it is not illegal to sell nicotine products to children. Some responsible retailers have a voluntary scheme for not selling to under-18s, but it is not a legal requirement. Some irresponsible sellers do sell vapes to children.

Paragraph 782 of the impact assessment says:

“There is limited evidence presented on the number and locations of vape vending machines, however it is suggested by online retailers that they are currently predominantly placed in locations such as nightclubs, bars and pubs. It is anticipated that”

without this legislation

“the market will develop further and vape vending machines will become more prevalent in other locations such as supermarkets, train/bus stations and other locations accessible to under-18s.”

In my mind’s eye, I remember recently seeing a vape in a vending machine alongside sweets; I just cannot quite remember where it was, but it was certainly somewhere that was easily accessible to people.

The aim of the clause is to protect children and to ensure that vending machines—commonly found dispensing food and drink in child-friendly establishments such as canteens and leisure centres, and easily used by young people—are not available. The machines protect anon—anonymity; I might have to put my teeth in, Sir Mark—

Tobacco and Vapes Bill (Third sitting)

Debate between Tristan Osborne and Caroline Johnson

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Dr Johnson]

I think that comes back to the issue of choice. The chief medical officer said that the only choice we make is the choice to have that first hit of nicotine; after that, our choice is taken from us by the profound addiction that we experience. One of the challenges with stopping smoking is that people get powerful cravings. Despite their overwhelming desire to stop, the cravings drive people to have a cigarette that they do not really want or would rather not have because of their addiction.

[Tristan Osborne (Chatham and Aylesford) (Lab)]

May I de-aggregate the two separate, distinct points about the age that will be defined on a driving licence or passport versus the concept of having ID?

On the first point, most identity documents will contain a defined birth date, which makes it easier for a retailer or sales individual to check the date. They do not contain an age, per se, but they have the date of birth, which creates an easier means of assessment.

The second point about having ID is a separate, distinct issue. In some countries in Europe, they put identity cards on the back of credit or debit cards, for instance. The question of how we would define that identity is a separate element or, perhaps, a separate amendment to the clause that may expand the list of identity that would be bona fide, but we nevertheless use the concept of identity already in many cases to purchase products.

If we are against identity cards or any form of identity, how are we supposed to look at any product with regard to sales, including ones that we might be challenged on, such as when the shadow Minister was purchasing her orchid in a venue? We accept the premise of identity when we sell any licensed product at the present time, so we are merely extending the same premise.

[Dr Johnson]

I thank the hon. Gentleman for his thoughtful contribution. I should be clear that I do not have an issue with carrying my driver’s licence or ID with me, although I am aware that some people genuinely do. If he wants to intervene again, I would be interested to hear whether that means that he is comfortable with voter ID, because his party, prior to the general election—I appreciate that he would not have voted on it, because he was not—

--- Later in debate ---

[Dr Johnson]

It is certainly the case, as I am sure we will come to when we discuss clause 1 itself in more detail, that where tobacco control measures have been brought in—on place, price, display or age group—they have led to a fall in smoking, which is a welcome and intended outcome.

I have been lumbered with a lot of interventions and I did not get to answer one point in full, which was on the issue of adult consistency. Amendment 17 would create two groups of adults—those aged between 18 and 25, who would be unable to smoke or use tobacco products, and those over 25, who would. The previous Government sought to say, “This is when you become an adult—when you turn 18. Before that, you are a child, and we will use child protection and safeguarding measures, so you cannot get married or buy a lottery ticket.” We sought to create consistency across the board, because consistency helps people to understand what the law is, which makes it easier for them to follow it and give a greater level of consent to it.

Let me turn back to the amendments. I cannot speak directly for the hon. Member for Epsom and Ewell, who tabled the amendments, but one of the reasons that has been given to me for increasing the age to 25 is that people normally begin smoking when they are young. Most people begin before they are 16, and many more before they are 21. That means that in principle, if we raised the age to 25, we would find that people did not start smoking in any great numbers, because their brain and their thinking process would be more mature, so they would be less likely to start. It is also the case that if someone starts smoking at a younger age, they are more vulnerable to the addictive properties of nicotine, as we heard in the impact assessment and in medical evidence.

[Tristan Osborne]

One of the challenges with introducing an age restriction of 25 is that a 19-year-old can smoke today, but that rule would suddenly take away a right that they previously had. However, the proposal on the table is for a sliding scale, whereby they will never have had the right to smoke. We are not taking away a right that someone might have had previously. Does the hon. Lady accept that there is a slight difference between having an age restriction of 25 and a sliding increase in age?

[Dr Johnson]

The hon. Gentleman is exactly right, in my personal view, to say that. As we heard before, the previous Government wanted to ensure that in bringing forward a Bill, they were not going to criminalise people with an addiction to a product that they could not quit, and therefore leave them in a situation where they could no longer buy the product they needed to feed that addiction. Obviously, we want them to stop, but we do not want to make them stop by making them criminals. So, yes, I would be concerned that sticking in a sudden increase to 25 would mean that any smokers legally accessing tobacco products between the ages of 18 and 25 would find themselves somewhat stuck. That is not something I would wish to see.