Examination of Witnesses

Tobacco and Vapes Bill – in a Public Bill Committee am 2:50 pm ar 30 Ebrill 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

John Herriman and Kate Pike gave evidence.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon 3:08, 30 Ebrill 2024

John Herriman and Kate Pike, will you introduce yourselves, please?

John Herriman:

I am John Herriman, chief executive at the Chartered Trading Standards Institute. We welcome the Bill, as I hope has been clear from the stuff that we provided before. It provides important clarity for businesses and enforcement agencies, as well as the public. We have also welcomed the early engagement in the development of the Bill.

Kate Pike:

I am Kate Pike, lead officer for tobacco and vaping at the Chartered Trading Standards Institute. I have been involved for many years on the regulatory side. I was a member of the Department of Health tobacco expert group for many years, and I am now a member of the vaping expert panel as well, so hopefully I can answer your questions—fingers crossed.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health)

Q Can you talk a little bit about your work on illicit vapes and tobacco, and talk us through how trading standards works and how you share information between the Medicines and Healthcare products Regulatory Agency, Border Force and His Majesty’s Revenue and Customs? One thing that I am concerned about in Birmingham, for example, is the fact that 17,000 illicit vapes were removed by trading standards. The notification process sits with MHRA. Is there triangulation in the feeding back of that information, so that products can be removed? Can you say something about that?

Kate Pike:

I will separate out illicit tobacco and illegal vapes, if that is okay. Illicit tobacco is the day job, which we have been doing for years. You are probably aware that HMRC came up with the first strategy on tackling illicit tobacco around the turn of the century, and since that time the amounts of illegal tobacco consumed in this country have come down hugely. Seventeen billion illegal cigarettes were consumed in 2000 and we are now down at 2.5 billion to 3 billion— I always say that as though it is a small number, but I know it is still huge. We have the latest strategy from HMRC to tackle that. Trading standards undertakes a really important role locally on illicit tobacco—your colleagues in Birmingham will be doing that work locally—but we work closely with HMRC and Border Force overseas, at the borders and inland, so we are on that.

With vapes, however, it is a different story. Obviously, the illegal vape market is much newer. Trading standards is responsible at ports and borders, and inland. The rise of illegal vapes probably took us by surprise, but we are now getting all our ducks in a row and starting to seize the products that are illegal. We work incredibly closely with our colleagues at HMRC. The notification system is helpful—it could be better, so we welcome the Bill clarifying that it can be extended and strengthened. We are getting on to the case now. There is a huge illegal market for vapes at the moment, but we can learn from what we have done on illegal tobacco and apply it to vapes, to ensure that we tackle those as well.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health)

Q The Bill will ban the sale, rather than the import, of illicit vape products. Is that the right approach?

Kate Pike:

The Bill gives enabling regulations to ensure that vape products can be reduced in attractiveness to children. There will be restrictions on the flavours, on the packaging and on the display to reduce the attractiveness of vapes to children. That is really important, because no problem has ever been solved by enforcement alone, whatever industry says. The approach has to be holistic: demand reduction as well as supply disruption. No problem has ever been solved like that, so the enabling powers, on sale and supply, will be brilliant.

Other bits of legislation are going through, such as the statutory instrument to ban single-use disposables. Potentially, that is an opportunity to look at an import ban on such products. Obviously, we will never get an import ban on something that we make here and sell overseas, because that is just not allowed under international trade law, but we talk all the time about how the ports and borders are such a pinch point.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

John, did you want to say anything?

John Herriman:

I want to pick up on Kate’s point about the ports and borders. One of the challenges is that stuff coming in through the ports and borders is not being detected. Something will be flagged—we produced a manifesto in the past couple of months to highlight the importance of ensuring the right level of enforcement and activity at the ports and borders. If we think about it in the context of vapes—or any other illicit product, to be honest—the reason they get on to the high street is that they come through the ports and borders. At the end of the day, we are an island, so if we have the right level of activity there, in co-ordination with other agencies, hopefully we will stop it getting through to the high street, and that reduces the burden of activity on trading standards.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health)

Q Finally from me, in your response to the Government’s “Creating a smokefree generation” consultation, you called for a fixed penalty notice of £200 and maybe the option of increasing that. Do you think that the fines and the monetary penalties in the Bill are appropriate?

Kate Pike:

We really welcome the addition of a fixed penalty notice to our enforcement toolkit, but we absolutely want to have our own range of sanctions, which includes the opportunity to go to prosecution for persistent or egregious offenders. The fixed penalty notice can be a really quick solution, potentially against an individual salesperson, depending on the setting and the nature of the offending. I think that £100 can be quite a lot; £200 would be more. I think that is enough, given the opportunity in the Bill to increase it at a later stage if it is not working or having the impact that we want.

John Herriman:

It is all relative at the end of the day. It needs to be tested first. To some illegitimate businesses, that will be seen just as a business cost. Whatever the amount is, we need to ensure that it is not seen as a business cost that can just be absorbed. It has to be a tangible deterrent: that is the key.

Photo of Andrea Leadsom Andrea Leadsom The Parliamentary Under-Secretary for Health and Social Care

Q It is great to see you—thanks for coming today. I think you are saying that at the moment the fine is set at the right level. It is a really important issue: by no means do we want it to appear to be a cost of doing business. Our previous witness was suggesting that for some shop workers it is a very significant sum and is quite problematic for them, so perhaps there should be training in the first instance.

We have sought to get the right balance, with a £100 fine that can be reduced to £50 if it is paid on the spot. For any of us, a day when we have to dish out £50 because we have done something wrong is a significant bad day. On the other hand, there is an escalation process to criminal prosecution. I am really keen that we get the balance right up front, notwithstanding that there will be powers to change it. Can I press you a bit further: is this or is this not the right place to start?

John Herriman:

Can I make a broader point, and then maybe Kate can come in on the specifics? This is all about the market surveillance activity that allows you to understand what is happening on your local high streets and your ability to take enforcement action where necessary, whether that is a £100 fine or a prosecution. Fundamentally, that is the challenge at the moment. It is about the ability to have the right level of market surveillance and the right level of enforcement activity. I am sure it is a question that will come up. It is a challenge for trading standards at the moment, because over the past decade or so it has had significant cuts, in the region of 50%.

There are two halves to this question. First, is this the right legislation and are the amounts right? Secondly, legislation is only as good as the ability to enforce it. It feels as though the legislation is right—I will let Kate comment further on that—but the ability to enforce it is critical.

Kate Pike:

Absolutely. Whenever we look at a new piece of regulation—as I think somebody mentioned earlier, we enforce more than 300 pieces of legislation across the spectrum—we ask, “Do we have the powers to enforce?” In the Tobacco and Vapes Bill, yes, we do. “Are there criminal penalties in there?” Yes, there are. The key things from our point of view—the building blocks—are there.

Across the spectrum, how many businesses sell tobacco? The impact assessment for the Bill says that there are something like 60,000 or 70,000 across the United Kingdom. On that spectrum, there are big businesses that know what they are doing and do not need a lot of support from us. There is a big chunk in the middle that might need a bit of support and guidance—they may make a mistake, but we can support them, help them and train them. Then there are a small amount at the other end that are the dodgy ones. We need to focus our enforcement efforts on them, because we will never be able to put one trading standards officer outside every business to be watching all the time.

Photo of Andrea Leadsom Andrea Leadsom The Parliamentary Under-Secretary for Health and Social Care

Q It is clear to me, having done a visit with enforcement officers, that some so-called specialist vape shops and some newsagents just have the vapes next to the sweets. It is a free-for-all: you get your bubble gum and your vape there. Is that problematic? Will this legislation mean that enforcement officers shut them down? Will there be enough powers and resources to ensure that this can no longer happen?

Kate Pike:

The Bill will have enabling regulations on vapes, with powers and criminal sanctions. That is good, but the specifics around where the vapes are positioned in store will be down to the next stage. We get calls all the time from people saying, “There’s a shop in my area called Toys and Vapes—do something about it!” There is actually no legislation that we can use to tackle that.

If you do not want the vapes next to the sweets, legislate for it. We will enforce what it says in the legislation, but we cannot make it up. People are always saying, “That’s not right,” but we cannot enforce morals. We can only enforce the law, so get it in there. If you do not want the vapes there, for very good reasons, give us legislation and we can enforce it.

Photo of Rachael Maskell Rachael Maskell Labour/Co-operative, York Central

Q My big concern is the illicit trade around vapes. What further measures would be helpful in the legislation to enable you to do your job? Vapes are clearly a delivery mechanism. We have particularly focused on lung health; I am more concerned about the use of vapes for synthetic drugs, which are available in my community and, I am sure, elsewhere. What more can be done to ensure that we do not see the growth of illicit vapes on our street corners or in our shops?

Kate Pike:

Illegal drugs are not a trading standards issue. If drugs are consumed via vape or by injection or rolled up in a roll-up, that is not our issue; that is a police issue. We can only enforce the law around the products where the enforcement is given to trading standards. We have no role whatsoever in illegal drugs in vapes. But there is a huge amount of enforcement around illegal drugs in this country, with the police, and the public health approach, about ensuring that people do not use illegal drugs. However they consume them, it is really important that they are on board—

Photo of Rachael Maskell Rachael Maskell Labour/Co-operative, York Central

Q But a vape product looks like a vape product, in all its various kinds. That is really what I am getting at.

Kate Pike:

If you have intelligence around a vape seller selling an illegal drug in a vape, or in any other sort of format, that should be reported to the police. The police will take action against illegal drug sales, or Border Force at the ports and borders. There is a huge enforcement body around illegal drugs.

John Herriman:

It is the market surveillance point again. If you have the right level of market surveillance, which is down to capacity, you will have trading standards officers, as well as those from other agencies, out and about who will detect the stuff. Then you can take the appropriate enforcement activity by whichever agency is appropriate at that particular point.

I take the point that was made earlier. I was walking down Hackney high street with trading standards just a couple of weeks ago. About every third or fourth shop, regardless of whatever the main thing it sold was, was also selling vapes on visible display. It is about making sure that we are aware of the level of vapes being sold, and that we therefore take the appropriate action, which is what the Bill should enable us to do.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Colleagues, we might be voting fairly soon, so short questions, please, and concise answers.

Photo of Dr Caroline Johnson Dr Caroline Johnson Ceidwadwyr, Sleaford and North Hykeham

Q My question follows on from that of my colleague. Lincolnshire police measured what was in vapes confiscated from children in my constituency. They found chemicals like diethylene glycol diacetate, antifreeze, Steol-M, poster varnish and others. As I understand it, when they look at a vape in a box, one of the challenges for enforcers is being able to tell whether it is a real, legitimate vape that contains what it is supposed to contain or a fake vape that contains a whole load of nonsense and potentially harmful chemicals. How could the legislation help you with that?

Secondly, someone showed me on packets of cigarettes recently that there is a scannable code, and trading standards have a special scanner that they can scan that with. Would that sort of thing help on so-called legitimate vapes?

Kate Pike:

Potentially. The track-and-trace legislation on tobacco that enables us to scan a packet of tobacco and find out if it is where it should be—it is tracked all the way through the system—could potentially work on vapes. It would be very complicated to bring in—well, not complicated; it would be a big exercise to bring in track and trace for vapes, but it is potentially something. As you know, there is a consultation out at the moment for vapes to become an excise product, so it could possibly be that we introduce track and trace alongside that for vapes.

If you look at a vape and you look at the packaging, there are lots of red flags that tell us if it is illegal. We can usually tell by the packaging alone. We are doing some market surveillance work at the moment for vapes that look as if they should be compliant; they are notified to the MHRA, to check the ingredients. So far, touch wood, we are not finding too many issues in those nominally compliant vapes. But there are so many illegal vapes out there. It is actually quite easy to see that they are illegal, when you see them. We do know how to identify them at the moment, but obviously it could become more difficult. We will just have to make sure that the new regulations are still enforceable when they come in. For example, if there is a ban on types of flavour, we would want that to be really clear. We do not want to have to go round sniffing or tasting. It needs to be clear by the description, rather than just some sort of guess along the lines of, “Is that strawberry bakewell-flavoured?” It would be very difficult for us to manage that.

Photo of Kirsten Oswald Kirsten Oswald Shadow SNP Spokesperson (Women), Shadow SNP Spokesperson (Equalities)

Q I do not know if others have had this experience, but I am aware that I am increasingly being advertised at online by products that, although I am not really sure what they are, are certainly connected or proximate to tobacco or vapes. That leads me to wonder whether there are any tobacco, vaping or other connected or related products that are not covered by this Bill, which you think perhaps should be.

Kate Pike:

I think the Bill is really good at closing some of those loopholes. It will include an age restriction on 0% nicotine vapes, for example. There are other nicotine products, such as the little nicotine pouches. The popular term is, I think, snus, but we know that snus is already banned in this country. The enabling regulations to put a regulatory framework around products like that will be really helpful. These industries are very innovative, so we just need to make sure that we are keeping up with our regulation. I think that the enabling regulation powers will enable us to keep up with new products, but it is continually little steps, and regulation chasing after innovation. We would like it to be the other way round, really.

Photo of Trudy Harrison Trudy Harrison Ceidwadwyr, Copeland

Q You are both very effectively articulating the complexity of your programme of work within trading standards, but 2027 seems like a terribly long timeframe. Given what we know about nicotine addiction and the outcomes, is it the right timeframe, and what will you need to be doing in that timeframe to achieve the deadline?

John Herriman:

I think this is all about strategic resourcing. As I have already articulated, the profession has had a significant cut in resources over the last decade or so. Actually, we now have to go into a phase where we are rebuilding the capacity. We can do this; we know that we can enforce regulations, because we have seen that we can do it successfully within the world of tobacco. It is now about what we are doing as a profession to start building back that capacity. We are taking some new steps: for example, there are now apprenticeship schemes running in England, both at level 6 and level 4, and we are supporting the level 4 apprenticeships in Scotland and Wales.

One of the things that I think is really good about the Bill, and the work that DHSC and other Departments have been doing, is the taking of a strategic view. We have to build this capacity gradually—fairly swiftly, actually—into trading standards, but we also have to be clear on expectations with businesses, so that they know what is coming and we can therefore make sure that we are moving at the same sort of pace. By taking that strategic approach, it allows us to build the capacity at the right level and make sure we have trading standards officers who are qualified—it can sometimes take two to three years to train somebody as a fully-qualified trading standards officer. That way, we have a sustainable platform to make sure that the legislation can be enforced. Essentially, that is what we are seeing here. We have not seen this level of strategic approach to resourcing and tackling a problem in many other areas, so it is quite welcome.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health)

Q You mentioned that trading standards has faced huge amounts of cuts, with many telling us that in some places there is not even a single trading standards officer. The enabling regulation and the powers within that will be really important, especially when making it clear what trading standards officers must look for when they go into a shop, how vapes are being marketed, and so on. The Government have already consulted on that. Do you think the Government should release that information now, so that they can work with you and do the preparatory work? What kind of timescales do you think there should be? We heard today from ASH that there is some evidence—for example, from Canada—around descriptors that we could already put in the Bill, or that we could implement immediately—why should we wait? Would it have been helpful to have some of that consultation around the enabling regulations already there?

John Herriman:

The Bill itself is helpful in that it has enabling regulations within it. It is about a phased approach. We cannot turn a switch overnight: we have to build it up gradually. We will need to do a lot of training—and not just training, but recruitment of new apprentices, students and trainees into local authorities, as well as doing the business education part, alongside that—and move in a very structured way. The worst thing that could happen is that we have the regulations, we have the law in place, but cannot enforce it. That would mean that it became ineffective. It is about having a phased approach, and the Bill does that quite nicely. It fits within where trading standards is as a profession. We need to build back that capacity over time. We are still waiting to hear the outcome of the discussions on funding, which are happening at the moment.

Photo of Bob Blackman Bob Blackman Ceidwadwyr, Harrow East

Q You probably heard the previous witnesses giving their views about a licensing scheme. From your members’ perspective, would that make the issue of where tobacco and vaping products can be sold more enforceable? You made a comment in relation to other tobacco products. I have raised the issue of chewing tobacco and paan, in particular, which does not come within the scope here but has no enforcement from Trading Standards at all. Do you see that happening in the future?

Kate Pike:

We pushed for tobacco licensing for many years. Since the last time we did that we have had tobacco track-and-trace sanctions come in and the regulation around track and trace, which ensures that every single business selling tobacco in the UK has to have an economic operator identifier, so that, using our scanner, we can see whether a particular product is legal for sale, or whether a business is legally able to sell. Although that is not a licensing system, it does give us many of the advantages of a licensing system that we would look for. Although there are potential benefits in thinking about a licensing system for nicotine products, I am not sure that it is a silver bullet to some of the answers. We have said before that the issues are not just around tackling supply, which licensing does; they are also about tackling demand. We just need to get to grips with a holistic approach to vapes in order to do that. In terms of licensing on the tobacco side, we are probably okay now, as long as we can make use of the track-and-trace sanctions. We might be able to use those for vapes as well, further down the line, given the vape excise duty.

Photo of Bob Blackman Bob Blackman Ceidwadwyr, Harrow East

Q And the attitude to paan and chewing tobacco?

Kate Pike:

We do enforce around products. Any tobacco product has to be notified to OHID—it was PHE when it first started. So, there is responsibility for enforcement around products that are legally allowed to be sold in the UK. If they are tobacco products, if they are not notified they cannot be sold. So, there is a role there, although it is more difficult—it is not a day job. Certain local authorities will have more of an issue than others. It is probably not going to be everywhere, but for some local authorities it is a big issue. Perhaps we need to do more enforcement around what we can already do, and see where the gaps are.

John Herriman:

To go back to the first point, there is a layered approach, which I think Kate has just articulated. There is a lot in the Bill that should work, so we need to look at that and see how we can enforce it and whether it works. There is a subtlety to this whole issue, particularly with regard to vapes, given that although there are under-age sales and illicit vapes, there is also a positive public health benefit for those that are smokers. So, we do not want to withdraw that access. Trading standards sits right in the middle of that. We can do a really good job when the regulations are clear; so we would like to have that clarity at the outset, which the Bill will give us. We can see whether that works; and there are always opportunities to come back if it does not. We have proved, though, that we can make it work in other areas.

Photo of Lisa Cameron Lisa Cameron Ceidwadwyr, East Kilbride, Strathaven and Lesmahagow

Q This question is for John. You stated in the response to the Bill that enforcing the new age restriction will present its own challenges. What challenges do you foresee? Will the sector be penalised if it cannot tell the difference between a 35-year-old and a 40-year-old? How do you manage those intricacies?

John Herriman:

I will let Kate answer on this one as well. There was a really good, comprehensive answer earlier from one of the people giving evidence: if this is the right thing to do, the right idea, it is something we will have to get used to doing. I think that is probably the principle that we would apply within the world of trading standards as well. We just have to get used to the new legislation and what it asks us to do, and then make sure that sellers are following that legislation. Probably the problem will be more at the business end rather than at our end, and this is where there is a really important role for business education and the likes of the British Retail Consortium, the Association of Convenience Stores and other organisations.

We must get the balance right: this is about the enforcement activity and the right level of legislation, but we also have to make sure there is an onus of responsibility and accountability on businesses themselves to solve part of the problem. I do not think it is right to put all of the problem on enforcement, for example. Therefore I would definitely be looking towards businesses to make sure that they are embracing this and making sure that they are doing the right business education and training along the way. Have you anything else to say on that, Kate?

Kate Pike:

Absolutely. The other point, obviously, is about resources, which John has already highlighted. We are in discussions, but we do need to make it clear that trading standards needs more resources to enable it to deliver the enforcement in this Bill.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

I think we have received that message very loud and very clear.

Kate Pike:

Good.

John Herriman:

Did I mention that? [Laughter.]

Photo of Steve Tuckwell Steve Tuckwell Ceidwadwyr, Uxbridge and South Ruislip

Q You may have touched on this in some of your previous answers, but are there any tobacco and vaping products that are not covered by the Bill but which you think should be?

Kate Pike:

We think that the tobacco age of sale should definitely apply to all tobacco products, and that the enabling regulations for vapes also allow the opportunity to add other nicotine products. The definition of nicotine is really helpful. The closing of the loopholes is really helpful. Loopholes are not helpful to enforcement, but closing the loopholes is really important to enforcement, so we are happy with that.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health)

Q To come back to your answer about the track and trace that you have for tobacco, have you had any conversations with Border Force and the MHRA about perhaps doing this for vapes? As you said at the beginning, you did not imagine that the industry would grow in the way it actually has around illicit and illegal vapes.

Kate Pike:

Yes. As I say, we are already in the consultation that HMRC has running now about a vape excise tax. One of the questions is, “Would you want to see these products subject to track and trace?”, and the CTSI will go back and say, “Yes, but let’s get the vape excise tax in now,” because of what that is going to give us. A number of you have said your worry is illegal vapes. HMRC being involved in this enforcement picture will be a real game changer, because there will be extra boots on the ground in addition to ours, and that will really help in tackling illegal vapes.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Q There are no more questions around the table, so thank you to John and to Kate for your excellent and very clear evidence, and thank you for coming to see us.