Draft Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015
Draft Proxy Purchasing of Tobacco, Nicotine Products etc. (Fixed Penalty Amount) Regulations 2015
The Committee consisted of the following Members:
Abrahams, Debbie (Oldham East and Saddleworth) (Lab)
† Ainsworth, Mr Bob (Coventry North East) (Lab)
† Barker, Gregory (Bexhill and Battle) (Con)
† Berger, Luciana (Liverpool, Wavertree) (Lab/Co-op)
† Crockart, Mike (Edinburgh West) (LD)
† Djanogly, Mr Jonathan (Huntingdon) (Con)
† Ellison, Jane (Parliamentary Under-Secretary of State for Health)
† Harris, Rebecca (Castle Point) (Con)
† Horwood, Martin (Cheltenham) (LD)
† Jones, Andrew (Harrogate and Knaresborough) (Con)
† Jones, Mr David (Clwyd West) (Con)
† Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
† Penrose, John (Lord Commissioner of Her Majesty's Treasury)
† Ruddock, Dame Joan (Lewisham, Deptford) (Lab)
Shannon, Jim (Strangford) (DUP)
† Smith, Chloe (Norwich North) (Con)
Sutcliffe, Mr Gerry (Bradford South) (Lab)
† Wilson, Phil (Sedgefield) (Lab)
Leoni Kurt, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Monday 23 March 2015
[Nadine Dorries in the Chair]
Draft Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015
4.30 pm
The Parliamentary Under-Secretary of State for Health (Jane Ellison): I beg to move,
That the Committee has considered the draft Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015.
The Chair: With this it will be convenient to consider the draft Proxy Purchasing of Tobacco, Nicotine Products etc. (Fixed Penalty Amount) Regulations 2015.
Jane Ellison: It is a great pleasure to serve under your chairmanship, Ms Dorries. I am pleased that we have the chance to debate the regulations, which form the final strand of the package of measures that we introduced in the Children and Families Act 2014. The regulations are aimed at protecting young people from nicotine addiction. The Act gives Ministers regulation-making powers to introduce an age-of-sale requirement for electronic cigarettes, and we consider it appropriate to do that.
The market for electronic cigarettes—known as e-cigarettes—has developed rapidly in recent years. Many different types and brands are now available. Some are designed to look and feel like conventional cigarettes, and others have a tank or reservoir that is filled and refilled with liquid nicotine. They can be disposable or rechargeable. Most e-cigarettes on the market are flavoured and some of those flavours may be appealing to children, such as ice cream, bubble gum and flavours of confectionery.
The use of e-cigarettes is increasing, as I am sure that Members are aware from experience in their constituencies. Action on Smoking and Health estimates that 2.1 million adults in Britain are currently using e-cigarettes. That is up from an estimated 700,000 users in 2012. Some people use e-cigarettes to help them to cut down or stop smoking completely. The ASH survey suggests that a third of e-cigarette users are ex-smokers who have given up completely and a further third are using them as part of a quit attempt.
However, the regulations focus on children. Use by people under the age of 18 is not currently widespread in the country, but international evidence suggests that it might increase. Emerging evidence suggests that awareness of e-cigarettes by British children is high. A Public Health England report found that two thirds—66%—of 11 to 18-year-olds had heard of e-cigarettes. Some 7% had tried them at least once and 2% reported using them sometimes or often, although many of those young people were also using tobacco. E-cigarettes are sold in a wide range of retail outlets, including supermarkets, newsagents, specialist shops and pharmacies, and are often prominently displayed and promoted in store. They are also widely promoted through social media.
More research is needed to determine whether e-cigarettes serve as a gateway into tobacco use. Although e-cigarette use by children is currently associated with existing tobacco smoking, research published by the Welsh Government provides tentative evidence that e-cigarette use might represent a new form of childhood experimentation with nicotine. The World Health Organisation has recommended that they should not be sold to minors.
Nicotine is highly addictive. Research shows that adolescents are more sensitive to the rewarding effects of nicotine, which may be the reason why many people start to smoke during adolescence. Responsible e-cigarette manufacturers and retailers do not currently sell e-cigarettes to children, and I welcome the action that they have already taken to protect children. However, we have decided to introduce an age-of-sale requirement as a precautionary principle in view of concerns about the increased awareness and use of the products by children. The measure also supports business, as it will provide clarity and consistency for all retailers and enforcement officers.
The regulations also cover proxy purchasing, which occurs when a person over the age of 18 buys an age-restricted product on behalf of someone under 18. Young people are known to approach strangers outside shops or ask friends, neighbours or, in some cases, parents to buy tobacco for them. We have therefore introduced a new offence of proxy purchasing of tobacco in the Children and Families Act. The regulations extend that offence to cover e-cigarettes.
The first set of regulations define a nicotine inhaling product as any device that is,
“intended to enable nicotine to be inhaled through a mouth piece”.
The definition encompasses e-cigarettes, including disposable and rechargeable types, and certain component parts such as nicotine refill cartridges and nicotine refill substances, often called e-liquids. It does not cover component parts such as batteries or charging devices.
The regulations do not apply to tobacco products because age-of-sale laws already exist for such products, and they were raised to 18 in 2007. The regulations include exemptions for products that are licensed as medicines and so are subject to separate regulatory rules. There are exemptions for nicotine inhaling products that are a medicine or medical device made available in accordance with a valid prescription by a pharmacist. The regulations exempt the sale of any nicotine inhaling product licensed as a non-prescription medicine—that is, available for general use—which the licensing authority has determined is indicated for use by children under 18. In such cases, the seller need not be a pharmacist, as such medicines can be sold in other types of shops, including newsagents. That means that those under 18 years of age who are trying to quit smoking—sadly, some young people are addicted to smoking, even by the tender age of 18—would still be able to access e-cigarettes as well as products such as nicotine patches or gum, as long as they fulfil the stipulations to which I just referred.
The regulations extend the proxy purchasing provision to make it an offence for an adult to buy or attempt to buy a nicotine inhaling product on behalf of a child aged under 18 years. The Act sets out the relevant penalties.
A person making a proxy purchase may be issued with a fixed penalty notice or could be referred to court. The adult making the purchase would be committing the offence, not the retailer. A retailer guilty of selling nicotine inhaling products to someone under the age of 18 could be fined up to £2,500 on conviction. Local authority trading standards officers would be responsible for enforcing the regulations, as they enforce much of the tobacco control legislation. I am keen to see public health and trading standards departments working together in areas where under-age sales are a particular problem. That is crucial if we are serious about reducing the availability of tobacco and e-cigarettes to children.The regulations bring the age-of-sale offence for nicotine inhaling products within the scope of primary authority, allowing businesses to form a statutory partnership with one local authority, which then provides advice for other local regulators to take into account when carrying out inspections or addressing non-compliance.
The second set of regulations set the amount of the fixed penalty notice for the proxy purchase provisions at £90, which is reduced to £60 if it is paid within 15 days. That will bring the proxy purchase of tobacco and nicotine inhaling products in line with the equivalent offence for alcohol, which provides consistency for retailers and enforcement officers.
The regulations have been agreed by the Welsh Government and will apply to England and Wales. They will come into force on 1 October 2015. The common commencement date was chosen to allow time for training of enforcement officers and to raise retailer and public awareness. There will be further negative statutory instruments to complete the enforcement regime. One will set out the fixed penalty notice form for the proxy purchase of tobacco and nicotine inhaling products in England, and one will add age of sale and proxy purchasing to the list of offences for which enforcement officers can carry out directed surveillance, subject to existing safeguards, to allow test purchasing operations, for example.
The Department of Health held a six-week public consultation on the draft regulations and received 81 responses. Responses to the consultation confirmed that many responsible manufacturers recommend that their products are for use by adults only and responsible retailers already voluntarily restrict children from accessing e-cigarettes. Almost all respondents supported the policy aims and the specific proposals set out in the regulations. Retailers, e-cigarette manufacturers, local authorities, enforcement officers and the public health community have all been clear that they want the regulations in place.
The regulations are business friendly and a number of retail organisations have told us that putting the age of sale in law will help responsible retailers who already refuse to sell e-cigarettes to children, by ensuring they are not at a competitive disadvantage by doing so. Businesses and enforcement agencies have welcomed the consistency that the provisions create with the same measures that exist for tobacco products. The cost of the regulations, which is estimated to be very small indeed, will be mainly on businesses that currently profit from selling e-cigarettes to children.
Many respondents to the consultation emphasised that this was a fast-moving market in terms of product development and patterns of consumer use, and that
research evidence into the effectiveness of e-cigarettes in smoking cessation and potential long-term health harms is still emerging. I agree that those are all important issues and have therefore included a duty to review the regulations within five years of their coming into force.I am pleased that we are able to present these regulations to the Committee. They represent the final stage in the implementation of the important public health measures in the Children and Families Act. The regulations will protect children and young people from the harms of nicotine association and, at the same time, bring clarity for businesses and for the public by bringing the rules for e-cigarettes in line with those that exist for tobacco. I commend the regulations to the Committee.
4.39 pm
Luciana Berger (Liverpool, Wavertree) (Lab/Co-op): It is a pleasure to serve under your chairmanship, Ms Dorries. Today we are debating a set of regulations that follow a bundle of tobacco control measures that will be introduced under the Children and Families Act 2014. I am pleased that the Act bans the proxy purchasing of tobacco and that the regulations to introduce a ban on smoking in cars with children present and to introduce standardised packaging of tobacco have now been passed in both Houses. These final sets of regulations, if approved, would join those previous measures in reducing the risk of children taking up smoking, and I am pleased to support them.
The regulations aim to limit the sale of nicotine inhaling products such as e-cigarettes to adults only, with certain limited exceptions for medicinal products. They extend the tobacco proxy purchasing offence in the Children and Families Act to cover nicotine inhaling products such as e-cigarettes, so it will be an offence for an adult to buy such products on behalf of a person under 18 years of age.
In recent years we have seen a well-documented rise in the use and availability of e-cigarettes, as the Minister mentioned. It is an extremely fast-moving market in terms of product development, and there is still a lot that we simply do not know about consumer use, effectiveness in smoking cessation and potential long-term health impacts. The Minister mentioned the Welsh emerging evidence, but it is still not clear whether the use of nicotine inhaling products is a gateway in or out of smoking for under-18s, or whether there is any gateway at all. However, the presence of such a risk is troubling, particularly in the light of growing concerns about increased awareness and use of such products among children.
The Government are right to take a precautionary approach and seek to protect children and young people from even a potential gateway into smoking tobacco that might be created by the use of nicotine inhaling products. Given the risk of nicotine addiction from the use of such products and the impact that nicotine can have on the developing adolescent brain, it is only right that the Government are taking action on the matter.
Many responsible e-cigarette manufacturers and retailers do not sell e-cigarettes to children, but the age-of-sale requirement will provide improved clarity for all retailers and manufacturers. I appreciate that there are some cases in which e-cigarettes are being used to good effect to help people to quit smoking, and the regulations will not prevent that. The regulations exempt products that
are licensed as medicines, so where under-18s products are using the products to help them quit smoking, they will be able to continue to use them.I was pleased that the Children and Families Act made it an offence for adults to buy tobacco products on behalf of children. Young people are known to approach strangers outside shops or ask friends, neighbours or, in some cases, their parents to buy tobacco for them. Statistics show that among 11 to 15-year-olds who are current smokers, some 95% have been successful at least once in the past year in having someone else buy cigarettes for them in a shop. If we agree that under-18s should not be able to use nicotine inhaling products, it seems sensible to prevent them from obtaining the products by the other routes that we know they use, such as asking adults to buy them on their behalf.
The Children and Families Act sets out the penalty on summary conviction and provides for the fixed penalty notice regime to apply. It is only right that the penalty for selling nicotine inhaling products to someone under the age of 18 will be the same as that for the sale of tobacco to under-18s. That seems proportionate and consistent with the penalties for similar offences of proxy purchasing of alcohol.
I welcomed and looked very closely at the public support for the measures. I was reassured to see that the large majority—79%—of those who responded to the Government’s consultation supported the draft regulations, and just 7% did not. That support covered all sectors, not just health organisations but retailers and their trade associations, e-cigarette manufacturers, tobacco companies, and local authorities, including trading standards departments. I note the role that trading standards will be taking in carrying the legislation forward. I am pleased to join those groups in supporting the regulations, but I have a few questions, which I hope that the Minister will be able to answer.
There is still a lot of work to do to strengthen the evidence base for nicotine inhaling products. To ensure that the Government continue to respond appropriately, does the Minister have any plans to commission more research on the potential harm caused by e-cigarettes, in particular whether they act as a gateway product into or out of smoking? This is a fast-moving market with new products emerging all the time in lots of different flavours. I am glad that the Minister has committed to reviewing the regulations in the light of new and future developments, and I hope that she will say a bit more about how that review process will happen. Alongside legislation, education is critical in helping people to understand the risks to their health and encouraging people to quit smoking or to prevent them from taking up smoking in the first place. Will the Government commit to continue to fund vital awareness-raising campaigns about tobacco-related harm?
In conclusion, the regulations represent a sensible step in our efforts to tackle tobacco-related harm. I am pleased to support them today and I encourage all other hon. Members to do the same.
4.45 pm
Martin Horwood (Cheltenham) (LD): I support the regulations and I do not intend to detain the Committee long, but there are a couple of issues that I want to
raise. I declare an interest; my wife works at Public Health England, although we have not discussed the content of these regulations.First, I was surprised that the explanatory notes do not present any evidence of direct harm from these inhaling products or vaping, whatever we want to call it. I have heard about evidence that they can induce heart disease or cause circulation problems and that some products may emit carcinogens such as formaldehyde. Although it is perhaps reasonable to introduce these restrictions on the basis that e-cigarettes might be gateway products, I would be interested to hear the Department’s view on direct harm caused by them.
Secondly, there is the in-out issue—it sounds like a European debate, though it is not. The hon. Member for Liverpool, Wavertree rightly said that we should be looking at whether inhaling products are a gateway in or out, but it is of course possible that they are both. For non-smokers, they may be a dangerous gateway into a tobacco-like habit, which might lead on to tobacco smoking, but for tobacco smokers, they may well be a safer alternative. It is possible for both of these apparently contradictory things to be happening at once. Has the Department considered or would it consider monitoring the impact of these regulations and whether a differential age-of-sale restriction between traditional tobacco products and these types of inhaling products might be appropriate, if we have established a hierarchy and know that it is safest not to do anything of this kind but that vaping might be safer than traditional cigarettes? I would be grateful for the Minister’s thoughts.
4.47 pm
Jane Ellison: My hon. Friend the Member for Cheltenham makes some interesting points. He has captured the current debate about e-cigarettes, and the shadow Minister touched on similar issues.
I think we have the balance right here. There is currently little research about the long-term health impacts of e-cigarette use, but the National Institute for Health Research has recently commissioned a large, randomised control trial to examine the efficacy of e-cigarettes compared with conventional nicotine replacement therapy when used within UK stop smoking services. That project will end in 2018 and will greatly assist our understanding. It is a trial of significant size.
My hon. Friend the Member for Cheltenham asked about harm. We consider addiction to nicotine harmful. In my speech, I focused on nicotine because we are trying to focus on what we have evidence for. We do not want to see addiction to nicotine; there is good evidence to suggest that it has an impact on young people to a greater extent, so we focused on that.
I am aware of some reports and other pieces of research and evidence, but this is still an emerging field. It is important to focus on what we know and to be a little more open-minded about areas where harm might emerge but we do not yet have hard evidence. I referred to the significant Welsh Government study, which made us feel that adopting a precautionary principle was right, while allowing for further research to emerge. That is tentative but useful evidence and it showed that e-cigarette use might be more prevalent among 10 to 11-year-olds than smoking, which is another reason to be cautious.
There have been no longitudinal studies to examine whether e-cigarettes serve as a gateway to tobacco use. That is one thing that people will look at in the five-year review of the regulations. That will be important. I have discussed that as well as the NIHR work with Public Health England. It is well aware that it and Department of Health policy officials should keep a close eye on the evidence emerging across the world to ensure that our evidence base is constantly renewed.
I understand my hon. Friend’s point on the differential. I do not believe that we are at the point where we can draw a conclusion now, but it may well be a debate to have at the time of the review of the regulations. My instinct is that it will be tricky for small retailers. There is a benefit for them in the clarity that harmonising the two brings. I should emphasise the point and reassure him that, if e-cigarettes achieve the necessary criteria to be medically regulated, they can be prescribed to a cigarette or tobacco user, including a young person. We are not cutting that off as an avenue for young people who might benefit, but those products must reach the same bar as other products that we have prescribed for smoking cessation.
The Government have always agreed that, although e-cigarettes are not completely without risk, they carry a far lower risk to health than smoking tobacco. We
have recognised that they are being used by some smokers to help them to cut down or quit. That is why we want a regulatory framework that ensures that devices need basic standards of safety, quality and efficacy, and that e-cigarettes are accompanied by sufficient information to enable users to make informed choices. It will be useful for Parliament, the Department and others to look again in a few years’ time at the regulations, but in the meantime, I am certain that this fast-moving market and fast-emerging area of health research will be kept under careful review. I am sure that we will have regular debates in Parliament. I hope that I have been of help to the Committee.draft proxy purchasing of tobacco, nicotine products etc. (fixed penalty amount) regulations 2015
That the Committee has considered the draft Proxy Purchasing of Tobacco, Nicotine Products etc. (Fixed Penalty Amount) Regulations 2015.—(Jane Ellison.)