House of Commons - Tobacco smuggling - Home Affairs Committee

Tobacco smuggling - Home Affairs Committee Contents

Introduction

1. Tobacco smuggling is a significant threat to UK tax revenues and to public health, yet duty is evaded on nearly one cigarette in ten, and more than a third of all hand-rolling tobacco. This is costing the taxpayer nearly £2 billion per year.[1]

2. There are three illicit product categories. First, 'contraband' are legally manufactured by the major tobacco companies and smuggled into the UK either from other countries, where they are duty paid in that country, but due to higher UK duty are still worth smuggling into the UK. A typical example of contraband in the UK is French cigarettes in French packs.[2]

3. Second, 'illicit whites' are brands that are legally manufactured by companies, often based in emerging economies, with the intent on exporting illegally to other countries through a smuggling network. The products are then sold illegally without domestic duty being paid.[3] Illicit white brands are typically imitation brands that copy the 'look and feel' of well-known legal brands.[4] The most common brand is "Jin Ling", which is produced in Russia, Ukraine and Moldova, although the provenance of many illicit whites is obscure.[5]

4. Third, 'counterfeit' are illegally manufactured copies of well-known existing brands. Although they are often very high quality copies of the pack, they are distinguishable from legal duty free through the lack of identifiable production or security markings, and product quality is often poor.[6]

5. The nature of the threat from tobacco smuggling has evolved since 2000. Then, most large cigarette seizures consisted of genuine UK brands being smuggled from EU countries with lower rates of duty. In 2007, non-UK cigarette brands and illicit whites first began to appear, and by 2012-13 most large seizures were of illicit whites.[7]

6. Tobacco smuggling is associated with organised crime, including the smuggling of controlled drugs, weapons and human beings.[8] Along with counterfeits, HMRC note that illicit whites "represent the most significant threat to legitimate trade and tobacco revenues in the UK from large scale organised criminality".[9]

7. Illicit tobacco products have public health implications, both because they make smoking more affordable and because many of them are made from unregulated materials. According to the HMRC, unregulated distribution networks associated with smuggling make tobacco more accessible to children and young people, and perpetuate health inequalities between different social groups.[10]

8. Written evidence was submitted by 31 respondents to the Home Affairs Committee's inquiry into tobacco smuggling. On 5 November 2013, the Committee took evidence from Paul Williams, Head of Corporate Affairs UK, Japan Tobacco International, and Steve Payne, Anti-Illicit Trade, Government Relations & Communications, Japan Tobacco International. On 11 March 2014, Sir Charles Montgomery, Director General, Border Force, and Jim Harra, Director General, Business Tax, HM Revenue & Customs appeared before the Committee.

The strategy to tackle tobacco smuggling

9. In response to the changing nature of tobacco smuggling, Tackling Tobacco Smuggling-building on our successes: A renewed strategy for HM Revenue and Customs and the UK Border Agency, was published in April 2011. The renewed Strategy sought "to combine policy and legislative changes, enforcement, and collaborative working with stakeholders to address the source, supply and demand for illicit tobacco in the UK".[11] Within the joint strategy, HMRC has overall responsibility for delivery, while Border Force is responsible for the seizure of illicit tobacco at the border.

10. According to the National Audit Office, HMRC's reported performance against its targets since the introduction of the new strategy is "mixed", as while HMRC met most of its objectives in 2011-12, none were met in 2012-13 although performance improved in most cases from the previous year.[12]

Table 1: HMRC's reported performance against objectives[13]

2011-12 2012-13

Objective/measure Target Achievement Target Achievement

Seizures: Seize greater volumes of illicit product to undermine the economics of the fraud Cigarettes (millions) 1,700 1,732 1,928 1,858

Hand-rolling tobacco (tonnes) 400 572 614 483

Supply: Reduce the availability of genuine tobacco products for fraud Cigarettes (millions) Less than 1,857 1,046 Less than
1,027
1, 042

Hand-rolling tobacco (tonnes) Less than 3,306 2, 789 Less than 2,455 2,743

Criminal investigations: Increase the impact of targeting and disrupting the criminal gangs behind the fraud
Revenue loss prevented (millions)
No target
£313
£421
£378

Deterrents: Punish and deter those involved in the fraud Assessments and penalties (millions) £20 £8.2 £30 £17.7

11. Director General, Business Tax, HM Revenue & Customs Jim Harra stated that it was "right" that they had "stretching targets" and were "driven by them to perform even better." He concluded that changes in the profile of smuggling were making it "increasingly challenging" for them to make seizures. There has been a move away from use of the postal channel and the use of large consignments through containers, as consignments are fragmented into smaller values.[14]

12. In October 2013, HMRC published updated tobacco 'tax gap' estimates. The 'tax gap' is the difference between tax that is actually collected and the tax that is 'theoretically due', which is the tax that would be paid if all individuals and companies complied with both the letter of the law and HMRC's interpretation of the intention of Parliament in setting law.[15]

13. The mid-point tax-gap estimate shows an increase in the level of the illicit cigarette market in 2012-13, with an illicit market share of 9% and associated revenue losses of £1.1 billion.

Table 2: Cigarettes (Illicit market and revenue losses)[16]

2008-09 2009-10 2010-11 2011--12 2012-13

Illicit market shares (%)

Upper estimate
Mid-point estimate
Lower estimate

15
12
9

15
11
8

13
9
5

12
7
2

13
9
4

Associated revenue losses (£ million)[17]

Upper estimate
Mid-point estimate
Lower estimate

1, 800
1,400
1,000

1,800
1,300
900

1,500
1,000
500

1,500
900
200

1,800
1,100
500

14. The mid-point estimate of the illicit hand rolling tobacco market shows an illicit market share of 36%, around the same level as in 2010-11 and 2011-12. The associated revenue losses for hand rolling tobacco is estimated to be around £900 million, an increase compared with previous years explained by the higher duty rates and prices in 2012-13, together with a slight increase in the illicit volumes consumed.[18]

Table 3: Hand rolling tobacco (Illicit market and revenue losses)[19]

2008-09 2009-10 2010-11 2011-12 2012-13

Illicit market shares (%)
Upper estimate
Mid-point estimate
Lower estimate

55
50
46

48
42
37

44
38
32

41
35
30

42
36
31

Associated revenue losses (£ million)[20]
Upper estimate
Mid-point estimate
Lower estimate

900
800
700

800
700
600

800
700
500

900
700
600

1,100
900
700

ARRESTS, PROSECUTIONS AND CONVICTIONS

15. Criminal investigations are a key part of HMRC's approach to tackling the organised criminal gangs behind large-scale tobacco smuggling. HMRC has legal powers to seize cash suspected of being the proceeds of crime and refer cases for prosecution. HMRC targets the cases that it believes will have the biggest impact, based on intelligence on organised criminal gangs. The aim is to make tobacco smuggling into the UK less attractive and factors such as profit margins, the ease and cost of operating in a country, the likelihood of being caught and the severity of the sentences play a key part in determining smuggling routes.[21]

16. Total spending on the Government's tobacco strategy in 2011-2012 rose by £3 million to £68.9 million.[22] This resulted in the seizure of 1.7 billion cigarettes and 572 tonnes of hand-rolling tobacco.[23] Despite this, in 2012, a total of 1 billion illegal cigarettes were smoked in the UK, an increase of 49% since 2011.[24] It is a matter of grave concern that, despite an increase in the resources devoted to anti-smuggling operations, 49% more illicit cigarettes managed to slip through the net in 2012 than in 2011, although this figure stabilised in 2013. In 2012-13, seizure rates of cigarettes rose slightly to 1.8bn, but the seizure of hand-rolling tobacco declined to 483 tonnes. The HMRC's tobacco tax gap estimates rose slightly in 2012-13, to 9 percent for cigarettes and 36 percent for hand-rolling tobacco. We are worried that not enough is being done by the Government and its appropriate agencies to combat the problem of tobacco smuggling at source. We urge the members of HMRC and Border Force set up firm relationships with their counterparts in countries such as Malaysia. This will ensure that intelligence and best practice is shared.

17. While there have been some high profile successes,[25] over the last three years the numbers of prosecutions and convictions for organised crime cases involving tobacco have fallen. We do not believe that these numbers are decreasing due to the reduction in this type of crime and are deeply concerned that these figures may indicate a reduction in enforcement action.

Table 4: Tobacco arrests and prosecutions[26]

2010-11 2011-12 2012-13

Arrests[27] 143 115 156

Prosecutions

Organised crime cases
Volume crime cases
Total

133

62

51

81 105 214

214 167 265

Convictions

Organised crime cases
Volume crime cases
Total

78

52

37

82 104 122

100 156 159

18. Civil penalties were also "substantially" below target in both 2011-12 and 2012-13.[28]

19. John Vine CBE QPM, the Independent Chief Inspector of Borders and Immigration, scrutinised Border Force freight operations between March and July 2013. His November 2013 report concluded that while "Border Force staff employed in freight operations were committed, knowledgeable and experienced in countering threats from freight imports", and "Border Force enjoyed a broadly positive relationship with port authorities", there was a "breakdown in communication between Border Force and HMRC at an operational level."[29]

20. A protocol on the referrals from Border Force to HMRC for criminal investigation has recently been established.[30] These operating protocols have been updated to articulate referral and information exchange processes for front-line officers. The updated guidance has been issued to front-line staff.[31] A joint debriefing unit has also been established at Dover, focusing on smuggling on "roll-on, roll-off" ferries.[32]

21. The Committee welcomes recent steps by HMRC and Border Force to develop more rigorous communication between the two organisations, in particular, the establishment of a new protocol on referrals from Border Force to HMRC for criminal investigation.

22. HMRC and Border Force must continue to strengthen the lines of communication between the two organisations, to ensure that relevant and up-to-date information is passed between teams. In particular, it is vital that referrals be made to HMRC in all cases of seizures where it appears that there might be scope for sanctions to be imposed. HMRC and Border Force should create a platform where effective examples of joint-working with local police forces and partner agencies such as Trading Standards across the UK can be accessed for training and in order to share good practice. Without sharing information, raising prosecution and arrest rates for tobacco smuggling will be more difficult, if not impossible.

SANCTIONS

23. Tobacco smuggling ranges from individuals abusing cross-border shopping rules to organised, trans-national criminal gangs smuggling shipping containers of illicit product around the globe. HMRC and Border Force state that they have a "comprehensive and effective range of sanctions available to deter people involved in all aspects of tobacco fraud and tailored to fit the seriousness of the offence."[33]

24. HMRC guidance states that tobacco companies are obliged to keep their supply chain policy under regular review, and where weaknesses in their supply chain controls are identified, they should take all reasonable steps to strengthen controls and include any new measures in their supply chain policy, where necessary.[34] Tobacco manufacturers face penalties of up to £5m for facilitating smuggling.[35]

25. Although supplies of UK tobacco products to high-risk markets have reduced by 20% over the last two years,[36] HMRC is still concerned about the problem of oversupply of branded cigarettes overseas with the intention of them being smuggled back into UK.[37]HMRC has not, however, fined any UK tobacco manufacturer for over-supplying products or failing to control its supply-chain, and has issued only one statutory warning letter threatening a fine.[38]

26. It is astonishing that no UK tobacco manufacturer has ever been fined for over-supply of products to high-risk overseas markets, and that only one statutory warning letter has been issued. The penalties available are too weak and enforcement too rare. We find it farcical that a respected enforcement agency such as HMRC has not imposed tougher punishments on those over-supplying overseas markets. We recommend that HMRC publish a clear set of criteria setting out the circumstances in which it would normally impose a fine and that an immediate review be taken against all historic and ongoing cases against this criteria in order to ensure those who have committed an offence do not go unpunished.

27. Sanctions targeted at intermediaries in the illicit supply chain include: revocation of hauliers' licences and, for retailers, a fine of up to £5,000, a six-month prohibition on the sale of tobacco products, removal of any National Lottery terminal, and revocation of any alcohol licence. HMRC also publishes details of people or companies deliberately evading duty of more than £25,000 or convicted of a criminal offence.

28. Large scale smuggling, along with cases of strategic importance or repeated non-compliance are investigated to a criminal standard and referred for prosecution. Conviction for the fraudulent evasion of excise duty carries a maximum sentence of seven years imprisonment.[39]

29. Other sanctions include civil sanctions, which are primarily used to tackle small-scale smuggling. Trading Standards Officers have additional sanctions and penalties for contraventions of labelling and packaging requirements, age of sale restrictions, and trademark offences.[40]

30. The Government states that a new communications strategy is being developed to maximise deterrence.[41] HMRC indicates that it aims to maximise the use of free media "to broaden the knowledge and awareness of enforcement action and penalties, in order to increase its deterrent impact; to raise awareness and understanding of illicit tobacco products and change behaviour; to encourage the public and businesses to pass on information and intelligence on the illicit market."[42]

31. The lack of media reports relating to prosecutions and enforcement activity in this area is disappointing for two organisations held in high public regard. As part of their new communications strategy, HMRC and Border Force should publicise prosecutions and enforcement action more widely to deter potential offenders. It is important that the agencies work together to ensure that those who offend are named and shamed and that the public money, spent combating this crime, is shown to have been used effectively.

Mandatory plain packaging

32. Between April and August 2012, the Department of Health ran a public consultation on the introduction of mandatory 'standardised' packaging for tobacco products.[43] Some 2,269 detailed responses addressed the question of whether requiring standardised tobacco packaging would increase the supply of, or demand for, illicit tobacco or non-duty-paid tobacco in the United Kingdom, with opinion almost equally divided on the issue.[44]

33. The summary report on the consultation concluded that almost all replies from businesses and business-related organisations suggested that standardised packaging would both increase the supply of and the demand for illicit tobacco. These respondents said that standardised packaging would be easier to counterfeit, reduce counterfeiters' costs and make it easier for counterfeiters to enter the market. They also believed that standardised packaging would make it more difficult for law enforcement officers to detect counterfeit tobacco, especially as members of the public would be less able to identify when they had been sold counterfeit tobacco.[45]

34. Some consultation respondents considered that an increase in the size of the illicit tobacco market would be less of a risk to public health than not introducing standardised packaging. Some respondents also described how easily and cheaply counterfeiters could copy current branded packaging and argued that requiring standardised packaging was largely irrelevant and would make it neither easier, nor more difficult, for counterfeiters.[46]

35. Written evidence produced during this inquiry has revealed similar splits in opinion. For instance, the TaxPayers' Alliance, which describes itself as an "independent grassroots campaign for lower taxes", argued that that the introduction of standardised packaging would be "a gift to counterfeiters and smugglers", citing a 2012 Populus study of 501 serving police carried out on behalf of the tobacco company Philip Morris International.[47] When asked whether the introduction of plain packaging would 'make it easier to produce/sell counterfeit cigarettes because all packs will look the same', 86% said that it would, while 68% said that plain packaging would 'lead to an increase in black market cigarettes where smuggled branded packs will be available'.[48]

36. Conversely, the Trading Standards Institute (TSI), a UK national professional association for trading standards professionals working in the private and public sectors, argues that counterfeiters are typically able to produce quality counterfeit packaging quickly and cheaply and that counterfeit tobacco product is detected currently by the identification of covert markings (on the packaging) using a hand held scanner, with these and other industry-specific markings applied to the packaging and product itself. These methods will continue to be used and thus Trading Standards officers will be able to detect counterfeit products whether the product is supplied in standardised packs or not.[49]

37. Nicholas Ilett, an investigation director at the European Commission (European Anti-Fraud Office), has argued that "the quality of counterfeits now is so high that it does not make a great deal of difference whether or not the packs are plain".[50]

38. In Australia, the Tobacco Plain Packaging Act 2011 and the Trade Mark Amendment (Tobacco Plain Packaging) Act 2011 make it an offence to sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale that are not compliant with the plain packaging requirements.[51]In July 2013, the Secretary of State for Health, Rt Hon Jeremy Hunt MP, stated that the Government had decided to wait to make a decision until the emerging impact of the introduction of standardised packaging in Australia could be measured.[52]

39. In November 2013, the Government commissioned an independent review of standardised packaging for tobacco by Sir Cyril Chantler, assessing whether there is likely to be an effect on public health, particularly for children, if standardised tobacco packaging were to be introduced. The review was published in April 2014.

40. Regarding the likely effects on the illicit trade, Chantler stated that he was "not convinced by the tobacco industry's argument that standardised packaging would increase the illicit market, especially in counterfeit cigarettes" and that there was "no evidence that standardised packaging is easier to counterfeit." He concluded that the solution to illicit use was an effective enforcement regime.[53]

41. HMRC have stated that the introduction of standardised packaging is "not going to create any new risks" for them, but it could well change the profile of the illicit market.

42. The Committee is encouraged that HMRC is collaborating with officials in Australia to learn lessons from the introduction of standardised packaging.[54] However, it is worth noting that there are significant differences between the markets in the UK and Australia, particularly in terms of the proximity to other countries, so the lessons learnt from the introduction of standardised packaging in Australia may not necessarily translate to the UK.[55]

43. On 3 April 2014, Parliamentary Under Secretary of State for Public Health Jane Ellison MP announced that, in light of the Chantler report and the responses to the previous consultation in 2012, she was "currently minded to proceed with introducing regulations to provide for standardised packaging." Before reaching a final decision, the Government will publish the draft regulations alongside a final, short consultation.[56]

44. We believe that the decision on standardised packaging should be driven by health reasons and the imperative need to reduce the numbers of young people who start smoking. We note the statement of Sir Cyril Chantler to the effect that he was not convinced that standardised packaging would bring about an increase in the illicit market; even if this were the case, we believe that the proper response would be a more vigorous effort on enforcement rather than any lessening in the Government's drive towards introducing standardised packaging.

TRACK AND TRACE TECHNOLOGY

45. A secure track and trace system begins by securely marking a unit of product, such as a pack of cigarettes, and assigning to it a unique identity which is stored in a government-owned and -controlled database. This could provide a fully reliable test of authenticity and be linked to data, for instance about product type, time and place of manufacture and intended market of sale.[57]

46. The unique identity and the database are the building blocks of a tracking capability which allows the unit to be followed throughout the supply chain—if required, up to the point of sale to the consumer. They also provide the means to trace backwards in real-time to point of origin or manufacture at any time during the product lifecycle.[58]

47. In 2011, the four major tobacco companies, British American Tobacco, Imperial Tobacco Group PLC, Japan Tobacco International & Philip Morris International, founded the Digital Coding and Tracking Association (DCTA) with the stated aim of promoting cost effective industry standards and supporting technology solutions to tackle the illicit trade.[59] Full implementation of the proprietary track and trace technology, known as 'Codentify', is expected in late 2014 or early 2015.[60]

48. Research in the Journal of Tobacco Control has raised concerns over the adequacy of Codentify. The authors acknowledged that they had access to only limited information on Codentify, through documentation PMI provides publicly, the patent and that leaked to the authors. The limitations identified in Codentify are that, if a code is used twice, the Codentify system cannot alone determine which of the two products with this code is genuine or counterfeit. An analysis of the package at the consumer service centre is required to confirm the authenticity. More generally the code is visible on the packs, making it easy to read and recognise, but less secure as visible codes are easier to falsify.[61]

49. The revised EU Tobacco Products Directive, governing the manufacture, presentation and sale of tobacco and related products, was formally approved by the European Parliament on 26 February 2014, and was officially adopted by the European Council on 14 March 2014.[62]

50. The new Directive introduces an EU-wide tracking and tracing system for the legal supply chain and visible and invisible security features, such as holograms, to facilitate law enforcement and help authorities and consumers detect illicit products.[63]

51. The new Directive specifically allows Member States to introduce further measures relating to standardisation of packaging, where they are justified on grounds of public health, are proportionate and do not lead to hidden barriers to trade between Member States.[64]

52. The new Directive should enter into force in May 2014. A transposition period of two years for Member States to bring national legislation into line with the revised Directive means that most of the new rules will apply in the first half of 2016.[65]

53. An effective track and trace system could potentially mitigate many of the possible risks which have led the Government to adopt a more cautious approach to standardised packaging. Any increase in criminality should be avoided at all costs and considerations on standardised packaging must be taken on health and commercial grounds. Therefore, we recommend that any future legislation to introduce standardised packaging should include a requirement for appropriate security and tracking features, in accordance with the EU Tobacco Products Directive and best evidence.

1 HMRC, Tobacco tax gap estimates 2012-2013 Back

2 Sir Cyril Chantler, Standardised packaging of tobacco: Report of the independent review undertaken by Sir Cyril Chantler, 3 April 2014, p. 33 Back

3 European Parliament, answer on behalf of the European Commission, given by Mt Semeta. Cigarette Smuggling, E-9307/2010, 4 January 2011. Back

4 Ibid. Back

5 World Customs Organisation, Illicit Trade Report 2012 (Brussels, 2013), p. 20 Back

6 Sir Cyril Chantler, Standardised packaging of tobacco: Report of the independent review undertaken by Sir Cyril Chantler, 3 April 2014, p. 33 Back

7 HMRC, Tackling Tobacco Smuggling-building on our successes, A renewed strategy for HM Revenue and Customs and the UK Border Agency (2011), para 3.3. See also NAO, Progress in Tackling Tobacco Smuggling, June 2013, Figure 5, p. 18 Back

8 HMRC, Tackling Tobacco Smuggling-building on our successes, A renewed strategy for HM Revenue and Customs and the UK Border Agency (2011), p. 1 Back

9 HMRC, Tackling Tobacco Smuggling-building on our successes, A renewed strategy for HM Revenue and Customs and the UK Border Agency (2011), para 3.7. Raquel and Jin Ling are well established illicit white brands in the UK. HMRC seized 47 million Jin Ling cigarettes in the UK in 2010-11 - a quarter of all seizures of illicit whites in that year. Back

10 HMRC, Tackling Tobacco Smuggling-building on our successes, A renewed strategy for HM Revenue and Customs and the UK Border Agency (2011), para 1.2 Back

11 HMRC, Tackling Tobacco Smuggling-building on our successes, A renewed strategy for HM Revenue and Customs and the UK Border Agency (2011) Back

12 National Audit Office, NAO analysis of HM Revenue & Customs performance data, NAO (2013), p. 24 Back