Tobacco and Vapes Bill
1.The Tobacco and Vapes Bill was brought from the House of Commons on 27 March. The Bill makes provision (among other things) for the supply of tobacco, vapes and other products, including prohibiting the sale of tobacco to people born on or after 1 January 2009.
2.The Department of Health and Care has provided us with a Delegated Powers Memorandum (“the Memorandum”).1
3.We received written evidence on the Bill from JTI UK.2
4.We draw the attention of the House to three delegated powers, in clauses 1, 10 and 68.
Clause 1 (sale of tobacco etc)
5.We are familiar with retailers being forbidden to sell items (e.g. illicit drugs) to anyone; likewise, being forbidden to sell items (e.g. cigarettes or alcohol) to those under the age of 18.
6.What is a new venture in legislation is to forbid the sale of items to someone born after a certain date but not before it, such that in due course it is legal to sell to a 25-year-old but not a 24-year-old, to a 41-year-old but not a 40-year-old, to a 61-year-old but not a 60-year-old, and so on.
7.Under clause 1, the ambit of potential criminal liability for retailers will inexorably expand with the passing of time. When the Bill was introduced into the House of Commons, clause 1 did not contain a delegated power. Clause 1 originally read as follows:
“(1) It is an offence to sell any of the following to a person born on or after 1 January 2009—
(a) a tobacco product;
(b) a herbal smoking product;
(c) cigarette papers.
(2) It is a defence for a person charged with an offence under this section to prove—
(a) that they were shown what appeared to be an identity document belonging to the purchaser and that the date of birth shown on that document was before 1 January 2009, or
(b) that they otherwise took all reasonable steps to avoid the commission of the offence.
(3) In subsection (2) “identity document” means—
(a) a passport,
(b) a UK driving licence,
(c) a driving licence issued by any of the Channel Islands or the Isle of Man,
(d) a European Union photocard driving licence, or
(e) an identity card issued by the Proof of Age Standards Scheme and bearing its hologram (a PASS card).
(4) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”
8.Clause 1(3) was amended in the Commons to remove the list of identity documents that retailers could accept as sufficient proof of age. Clause 1(2)(a) was amended so that it is now a defence for a person charged with an offence under clause 1 to prove:
“that they took such steps as may be specified in regulations made by the Secretary of State to verify that the customer was born before 1 January 2009.”
9.The problem with clause 1(2)(a) is not in the delegated power itself. The original clause relied on a very particular list that was apt to become out of date in due course. Dealing with the matter in secondary legislation circumvents this problem. Rather, the problem is that regulations made under clause 1(2)(a) use the negative resolution procedure.
10.The defence under clause 1(2)(a) will be important to retailers for at least two reasons.
- First, retailers will naturally have difficulty (as time goes on) in distinguishing (say) a 50-year-old, who cannot be sold a herbal smoking product, and a 51-year-old who can. It could prove problematic in terms of customer relations even broaching the subject. But to avoid criminal conduct the matter might have to be broached.
- Second, the defence is the difference between having a criminal record and not. Yet there is nothing on the face of the Bill that gives any indication as to the steps that retailers must take to verify that the purchaser was born before 1 January 2009. Everything will depend on the content of the regulations, concerning which there will be significant public interest.
11.Because the regulations only use the negative resolution procedure, in practice they are very unlikely to be debated before they are made and may not be debated at all. Accordingly, Parliament and retail interests will not have a formal opportunity (such as would be provided by the affirmative procedure) to satisfy themselves - before the regulations are made - that the regulations are reasonable and workable.
12.Paragraph 12 of the Memorandum offers three reasons for the negative resolution procedure:
- First, because it is a defence on the face of the Bill to have otherwise taken all reasonable steps to avoid committing the offence, the negative resolution procedure therefore affords an appropriate level of parliamentary scrutiny.
We do not think that the conclusion follows from the premise. The two defences in clause 1(2) are separate and require separate justifications. If one cannot rely on the defence under clause 1(2)(a) (the details of which will in due course be set out in regulations) the only way of avoiding criminal liability is the “otherwise (having) taken all reasonable steps” defence in clause 1(2)(b). This reinforces the importance of knowing the content of the clause 1(2)(a) defence, on which debates under the affirmative resolution procedure would provide valuable reassurance. The use of the negative resolution procedure means that the first anyone hears of the defence under clause 1(2)(a), as it exists in law, will be after the regulations are made.
- Second, the Memorandum argues that the detail in the regulations will be “technical, procedural and non-contentious”, as they will likely be already carried out by many retailers who follow good practice guidance.
This is assertion, particularly as the Bill says nothing about the content or status of any such guidance. Parliament will not have the chance to judge whether the regulations are merely technical or uncontroversial until Parliament sees them, which (in the case of the negative resolution procedure) will be after the regulations are made. Since breach of the regulations can result in a criminal conviction and given the unprecedented nature of the obligation not to sell products to people who may (in years to come) be in their 50s, 60s or 70s, retailers are likely to regard the regulations as being of considerable practical and legal importance; likewise, Parliament itself.
- Third, use of the affirmative resolution procedure is said to be an inappropriate use of parliamentary time relative to the nature of the power and the limited potential impact on retailers.
We believe that Parliament is the best judge of what is, and is not, an appropriate use of its time. To say that the regulations will have a limited impact on retailers overlooks the importance of the regulations, which may make the difference between retailers facing criminal liability or not. Furthermore, depending on what the regulations say (on which the Bill is silent) they may have a marked impact on retail activity in practice.
13.It is surprising that the Government, having been generous in the use of the affirmative resolution procedure throughout the Bill, should have been so parsimonious on this occasion.
14.The importance of regulations made under clause 1(2)(a) justifies the use of the affirmative resolution procedure rather than the negative resolution procedure.
Clause 10 (sale of vaping or nicotine products to under 18s)
15.Under clause 10 it is an offence to sell a vaping product or nicotine product to a person under the age of 18. It is a defence for a person to prove:
(a)that they took such steps as may be specified in negative resolution procedure regulations made by the Secretary of State to verify that the customer was at least 18 years old, or
(b)that they otherwise took all reasonable steps to avoid the commission of the offence.
16.The Memorandum (para 28) makes the point that the justification for the negative resolution procedure is the same as for clause 1. We have seen in the case of clause 1 that this justification is not compelling, and that the affirmative resolution procedure is more appropriate.
17.There is, however, an additional reason for adopting the affirmative resolution procedure in clause 10. The Memorandum (para 23) records that section 92 of the Children and Families Act 2014 (“the 2014 Act”) introduced regulation-making powers for the Secretary of State to make it an offence to sell nicotine products to under 18s. Clause 10 creates the offence of selling a vaping product or nicotine product to someone aged under 18.
18.What the Memorandum neglects to say is that the regulation-making provision in section 92 adopts the affirmative resolution procedure (see section 135(6)(d) of the 2014 Act). If the affirmative resolution procedure is currently acceptable for the sale of nicotine products, the negative resolution procedure should not be acceptable for regulations that cover both nicotine products and vaping products.
19.The affirmative resolution procedure should equally apply to regulations made under clause 10(2)(a) as it should to regulations under clause 1.
Clause 68 (age of sale for tobacco products etc: Northern Ireland)
20.Clause 68 is the Northern Ireland provision that corresponds to clause 1. The Memorandum (paragraph 145) states that the justification for the negative resolution procedure in clause 68 is the same as that contained in clause 1. We have seen in the case of clause 1 that this justification is not compelling, and that the affirmative resolution procedure is more appropriate.
21.The affirmative resolution procedure should equally apply to regulations made under clause 68 as it should to regulations under clause 1.
1 Department of Health and Social Care, Memorandum on the Tobacco and Vapes Bill from the Department of Health and Social Care to the Delegated Powers and Regulatory Reform Committee (28 March 2025): https://bills.parliament.uk/publications/60056/documents/6288 [accessed 6 May 2025]
2 Written evidence from JTI UK to the Delegated Powers and Regulatory Reform Committee (28 April 2025): https://committees.parliament.uk/publications/47706/documents/249254/default/