Clause 7 - Sale of vaping products to under 18s

Tobacco and Vapes Bill – in a Public Bill Committee am 12:15 pm ar 9 Mai 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Siobhain McDonagh Siobhain McDonagh Llafur, Mitcham and Morden

With this it will be convenient to discuss the following:

Clauses 8 and 9 stand part.

Clause 44 stand part

Clause 51 stand part.

Government amendment 25.

Clause 53 stand part.

Photo of Andrea Leadsom Andrea Leadsom The Parliamentary Under-Secretary for Health and Social Care 12:30, 9 Mai 2024

Before I speak to the clauses, I want to set out, for the purposes of clarity, what we mean when we refer to vapes. Different terminology is used in law, depending on whether we are referring to legislation for England and Wales, for Scotland or for Northern Ireland. However, although there may be minor differences in terminology, the products are the same. When referring to vapes, e-cigarettes or nicotine vapour products, I will use the generic term “vapes” throughout.

Vaping is never recommended for children. It risks addiction and unknown long-term health impacts while their lungs and brains are still developing. These clauses are important to ensure that vaping products and nicotine products cannot easily be accessed by children.

Clause 7 will mean that it continues to be an offence to sell a nicotine vape to a person under the age of 18 in England and Wales, and anyone found guilty of the offence will be liable to pay a fine of up to £2,500 if convicted. The clause will also extend that age of sale restriction to non-nicotine vapes, as we know that children are accessing those products. The provision on non-nicotine vapes will come into force in both England and Wales six months after the Bill receives Royal Assent, to allow retailers time to introduce the measure. The clause provides businesses with certainty about whom they may legally sell products to, and reinforces our health advice that children should never vape.

Clause 8 will mean that it continues to be an offence for a person aged 18 or over to buy, or attempt to buy, a nicotine vape on behalf of a person under the age of 18. The clause will also extend those restrictions to non-nicotine vapes. Non-nicotine vapes may be used as a gateway for children to start using nicotine vapes, which is why the clause extends the scope of the current restrictions to include non-nicotine vaping products.

Clause 9 will close an existing loophole and make it an offence to give away a vaping product, or a coupon that can later be redeemed for a vaping product, to someone under the age of 18 in England and Wales. Given the clear and unambiguous health advice that children should not vape, and the fact that under-18s cannot legally be sold a nicotine vape, it is completely unacceptable that the industry is not prohibited from giving free samples of vapes to children. That loophole needs to be closed to ensure that we can protect children from addiction and potential health harms.

Clause 44 will amend Scottish legislation to extend existing regulation-making powers to prohibit or restrict the free distribution and nominal pricing of vapes to cover nicotine products such as nicotine pouches. Regulation-making powers on the sale of nicotine products to under-18s, on proxy purchasing and on free distribution to under-18s are provided for England and Wales in clause 10 and will be discussed separately.

Similarly, clause 51 will give the Department of Health in Northern Ireland regulation-making powers to prohibit the sale of non-nicotine vaping products to persons under 18. That will align with measures in the Bill for England and Wales and with measures already in place in Scotland for this offence. To ensure alignment across the UK, clause 53 will provide the Department of Health in Northern Ireland with regulation-making powers to prohibit the free distribution of nicotine products and non-nicotine vaping products to those under the age of 18. I commend clauses 7 to 9, 44, 51 and 53 to the Committee.

Government amendment 25 to clause 53 was tabled at the request of the Health Minister in the Northern Ireland Executive. It will change the mode of trial and maximum penalty for an offence of free distribution of nicotine products or non-nicotine vaping products in Northern Ireland, removing the potential for anyone convicted of the offence to be imprisoned. Instead, on conviction, the penalty will be a fine not exceeding level 5 on the standard scale in Northern Ireland. That small change will align the penalty that could be imposed with the penalty for the age of sale offence for vapes in Northern Ireland. I am sure that the Committee will agree that that is a more proportionate penalty for the offence. For those reasons, the UK Government accept the amendment.

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

First, I want to make some general points about these first vaping-related clauses of the Bill. We agree fundamentally with the Government in their efforts to find a balance by phasing out tobacco use and cracking down on youth vaping while being careful not to undermine the proven success of vaping as a stop-smoking aid. There is no doubt, however, that the rise in youth vaping is a serious concern.

My main question about the Government’s response is “What took them so long?” Labour proposed measures more than two years ago to stop vapes being branded and marketed to appeal to children, but that was blocked by the Government. I am glad that the Government have listened to us. I hope that they will continue to do so as we debate the Bill; I firmly believe that some of its provisions can still be strengthened.

I am pleased by the inclusion of clause 7. Coupled with clause 34, which defines a vaping product in a way that includes non-nicotine vapes, it will tackle a substantial loophole that we have been calling on the Government to close for a long time. Youth vaping is a serious and growing issue. In 2021, Labour voted for an amendment to the Health and Care Bill to crack down on the marketing of vapes to children. Since then, according to the most recent survey by Action on Smoking and Health, the number of children aged 11 to 17 who are vaping regularly has more than trebled. That is more than 140,000 British children. Meanwhile, one in five children have now tried vaping. In clause 7, a couple of issues therefore intertwine.

I think most people would be surprised to learn that it is legal to sell non-nicotine vapes to children, which could so obviously be designed as a gateway to addiction to the real thing, as the Minister mentioned. It is doubly concerning when we think about the illicit vapes that end up on British shelves. Testing by Inter Scientific, from which we heard last week, has found that a considerable percentage of seized vaping products that it tested contained nicotine, even when they were marketed as 0%.

That is highly concerning. It means that for the past several years, we may have seen a spate of accidental addictions among children. According to survey data from ASH, 9.5% of vapers aged 11 to 17 exclusively puff on so-called 0% nicotine vapes. Analysis of that and of data from the Office for National Statistics suggests that at least 40,000 child vapers could have been exposed to nicotine-containing vapes without their consent, becoming accidentally addicted by illegal products masquerading as nicotine-free that, under existing regulations, they are allowed to buy. That is an important testament to why not just regulation, but effective enforcement— especially over the illicit market—is vital to the success of the Bill.

The two-tier system of regulation for nicotine and non-nicotine vapes is not robust. The exclusion of non-nicotine vapes from the Tobacco and Related Products Regulations 2016 is important for a few reasons. Primarily, it is confusing and more difficult to enforce the rules on the ground if it is not clear which products contain nicotine and which do not. As 0% nicotine vapes are out of the scope of the current regulations, they do not need to be notified through the Medicines and Healthcare products Regulatory Agency process, on which trading standards officers often rely to identify illicit products. I raised that point with the Minister in a debate in January and am keen to seek clarity. Does the Minister think that all producers should have to notify vape products, regardless of nicotine content, to the MHRA?

I note that clause 71 provides the power to extend the notification process to non-nicotine vapes, but the Government have not, to my knowledge, explicitly expressed a view on the matter. Will the Minister do so now? In theory, including non-nicotine vapes in the notification process should allow for a complete database of products. Currently, it is difficult to identify which products are legal or illegal, which really undermines enforcement action.

As we heard in evidence, the impact of vaping products on the developing bodies of children has the potential to be very harmful. It is vital that we take every step to make sure that our systems of regulation and enforcement are as robust as possible to stop a new generation of products hooking our children on nicotine and harming their long-term health. We absolutely support the clause, and I am keen to hear the Government’s view on the issues that I have raised.

I have no substantial comments to make about clause 8. It is a common-sense reapplication of the principles of clause 2, which we have debated and which I support.

Clause 9 will finally address a loophole that I regret to say the Opposition raised in an amendment to the Health and Care Bill in 2021; I am glad that it is now receiving the Government’s attention. Our 2021 amendment would have prohibited the free distribution or sale of any consumer nicotine product to anyone under 18, while allowing the sale or distribution of nicotine replacement therapy licensed for use by under-18s. The then Minister rejected the amendment. To quote my hon. Friend the Member for City of Durham:

“There was no evidence of a serious problem, but the Minister sympathised with the argument for preventive action.”—[Official Report, 22 November 2021; Vol. 704, c. 56.]

Two and a half years later, it is clear what a widespread issue this has become. It goes without saying that Opposition support clause 9, which will close the loophole, as well as clause 44, which will introduce powers for the Scottish Government to extend the existing powers to regulate the free distribution of vapes and other nicotine products such as pouches, as mentioned by the Minister. Likewise, clause 51 will mean that age of sale restrictions can be extended to non-nicotine vaping products.

Finally, clause 53 relates to the free distribution of vapes and nicotine products in Northern Ireland, whether or not they contain nicotine. As I have discussed, I am very concerned that that has presented a loophole that has undermined enforcement, so I support a consistent approach across the United Kingdom. May I ask the Minister to set out what the words “in the course of business” will mean in practice when it comes to the free distribution of harmful products, given that we would expect any person caught out by the provision to argue that there is no “business” in giving away something for free? Of course, we know that that is not true in the case of addictive products, but I will be grateful if the Minister can reassure me that the clause will do in practice what it needs to do. Can she also please reassure me that it will not prohibit under-18s from accessing nicotine replacement therapies?

I reiterate that the Opposition support these clauses, but I am very interested in the Minister’s views on how the Bill should affect the notification process for vapes.

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

I welcome the clauses. I have been very concerned about the number of children who are taking up vaping and about its effects. We have heard in evidence, both in the Health and Social Care Committee and last week in this Committee, about the dangers of vaping for children who have never smoked. The chief medical officer has made it extremely clear that for someone who smokes, vaping may be better for them, but that someone who does not smoke should not vape. These measures will help to reduce the number of children who have access to such products, which is good. They will also close the loopholes for free samples and non-nicotine vapes, which can provide a gateway to such awful addiction.

We have also heard how nicotine in general is not just very addictive but harmful to children’s developing brains, and how getting them hooked early makes it more difficult for them to quit in the long term. We have heard about how children in schools are struggling to concentrate when leaving lessons to consume nicotine, which is having an impact on their education and wellbeing. We have heard from health experts about small particles going into children’s lungs, without our knowing what the long-term effects of that might be. I welcome any clause that will help to reduce the number of children vaping.

I do have one question. The cross-heading before clause 7 is “Vaping and nicotine products”, but clause 7 only makes it an offence to sell a vaping product to a person under the age of 18, rather than also making it an offence to sell all other nicotine products, although the capacity to do so is set out later in clause 9. I am just wondering why the Minister is taking a power to restrict nicotine product sales but is not actually doing so. We are starting to see that children at school are using nicotine pouches that are available in all sorts of different flavours. I can see nicotine pouches becoming the next way for the industry to try to hook children on nicotine. Has the Minister considered getting ahead of the game by saying that nicotine products cannot be sold to children at all?

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

Is the hon. Lady reflecting, as I am, on the comments that we heard in evidence about the link between professional footballers and some of these products? There is an obvious interest and attraction in these kinds of products for the very young people we are concerned might take up vaping.

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

Yes. Sportspeople, as we know, are very influential on young people. To promote products that are potentially harmful to children is morally wrong, in my view. They need to be careful to think about the effects that they may be having on children.

My question to the Minister is whether she will consider extending clause 7 outright to include nicotine products for children. We need to support children who are smokers or vapers and wish to quit, but those children can get nicotine replacement products from their GP on prescription. There is no need for those products to be sold to children.

Photo of Rachael Maskell Rachael Maskell Labour/Co-operative, York Central 12:45, 9 Mai 2024

I, too, welcome the fact that legislation is at last being supported by the Government and is before us today. I have deep concern about the impacts of vaping—and not just on physical health, although much research clearly needs to be done to understand the extent of that. In the Health Committee, we saw a paper on the DNA methylation changes that take place in the oral cavity. We have not seen the impact on the lungs, because that would require more invasive sampling, but the evidence shows that much research needs to be done to understand the implications of vaping on physical health.

I am also concerned that we are looking only at the age of 18. I understand the Government’s reasons—clearly, young people can readily become addicted to the nicotine in these products, and I welcome the measures to restrain that—but I have serious concerns about those over 18 who commence vaping. I understand that a paper will be coming out in Sweden showing that people move from vaping to smoking, so I am concerned that there could be unintended consequences if we do not take more extensive measures on vaping.

I absolutely understand that the Government are using the Bill to send a clear public health message that vaping is safer than smoking and that smoking kills, so if people can move from smoking to vaping, that is a positive health change. However, we do not yet know the extent of the harm that can be done by vaping, so we could well be back here again if we do not put proper measures in the Bill to facilitate more action more rapidly, should evidence come forward on the impacts of vaping.

I have talked about physical health, but we know that vaping involves an addictive product, and we do not want to see another generation of people becoming addicted to a nicotine product. We must recall that the vaping industry, like the tobacco industry of old—well, it is still in existence—has the sole interest of bringing forward another generation of people who are addicted to a substance, to ensure that those people buy its products and it profits. Leaving individuals with that dependency means that they are in bondage not only financially but in terms of their health. We must ensure that we properly examine the scope of the challenges involved in leaving over-18s exposed.

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

The hon. Lady is making a very informed speech, but I want to pick up on one thing. She said that the sole purpose of the vaping industry is to get people addicted to vaping, but does she acknowledge that many people across the UK, and particularly adults, as we heard in evidence, have reduced their addiction through vaping? They are tapering down the amount of nicotine they are using, as opposed to when they were smoking. We also heard that there were some health benefits from people moving from smoking to vaping.

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

I am grateful to the hon. Lady for the point she made. Certainly, I did highlight that transitional benefit of moving from smoking to vaping to, hopefully, stopping altogether. However, we must also highlight that vaping is not without risk, and we need to give that serious consideration. I am just concerned that the Government are slightly light, shall I say, in terms of their concern about vaping, in order to drive down the smoking. I absolutely understand that, because smoking kills, but I just think that we could be on the “too light” side. I know that it is about balance, but I hope that we can reflect on that during the course of the Bill.

I want to draw out one question that I have about clause 9 and giving away vapes. I certainly understand why the measures would be applied to industry, but I want to ask about public health measures that could be deployed. I recognise that the clause is about under-18s, but unfortunately, despite the current legislation, we know that many people under 18 smoke, and we obviously need to ensure that they stop and move into a safer space. The Government have been very much pressing the idea that vaping is a route out of smoking. Does the Public Health Minister see vaping as a means to help people under the age of 18 to stop smoking, or will they have no access to vapes? I would just like some clarity around that. Clearly, there are other smoking-cessation programmes and products available, but it would be useful to know the answer to that question. If vaping is to be used in that way, and clinicians are to be able in future to prescribe or indeed provide vapes for young people to stop smoking—if that was the only tool—we need to understand whether we are to have a blanket ban in the Bill. It would be very useful to understand that.

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

Once again, I thank all hon. Members for their thoughtful and considered remarks —I really do appreciate them. Essentially, the questions are pretty much around the product notification and the availability of quit aids to under-18s. Hon. Members may not have spotted this, but the notification of vapes to the MHRA is something on which we are taking powers. There will be a further consultation on that point because it did not come under the scope of the original consultation. We will have the powers to require notification of vapes to the MHRA.

The other point that has been raised by a few colleagues is, “How do we help under-18s to stop smoking?” Under the MHRA, there is licensed nicotine replacement therapy, which is licensed for 12 to 18-year-olds. Of course, all under-18s can go to their local stop-smoking services.

To the point from the hon. Member for York Central about whether young people should be able to access vaping as a quit aid, my instinct would be, “No, absolutely not,” and I think that that would be her instinct also. However, I must slightly correct the record: it is certainly not the Government’s position that vaping is in any way safe; it is merely less harmful than smoking. I would reiterate that if you don’t smoke, don’t vape. And children should never vape, so they should not be turning to vaping, even as a quit aid. In my view, that would also be the thin end of the wedge, because people would simply say, “Well, I am only vaping because I am trying to stop smoking.” I cannot imagine that ever being a suitable way to help children to stop.

Photo of Bob Blackman Bob Blackman Ceidwadwyr, Harrow East

One issue that has been raised in the debate is non-nicotine vapes and the potential to get people on to vaping, followed by the escalation, presumably, to nicotine and then, potentially, as has been mentioned, to cigarettes. What action will my right hon. Friend take—although not necessarily in these clauses—to make sure that that escalation path cannot be followed?

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

My hon. Friend raises an important point. The legislation covers non-nicotine vapes, and unfortunately, as has been pointed out, a number of illicit so-called non-nicotine vapes have up to 30% nicotine content, which has completely undermined the argument for those. Quite clearly, they are designed by the industry to get people hooked on the idea of vaping so that it can get people on to higher nicotine levels in due course. That is why the legislation covers non-nicotine vapes and all tobacco and vaping products.

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

What more can the Minister do about the growing illicit market in vapes? The MHRA’s evidence was interesting; it said that a lot of what is in the notification process is considered illicit, but the Minister did not have the figures and she was going to provide those to us. There is an issue there in terms of triangulation and what trading standards has found to be illicit and not compliant with the notification process. At the moment, the MHRA does not have the powers to withdraw those products; it is down to the provider themselves to remove them from the notification process and then to become compliant and to reapply again. That does not seem to be the right approach, because the manufacturers are marking their own homework in terms of what they are notifying. The Minister also recognised that what might have been notified and what actually comes into the country are very different. There has to be a better way of ensuring that we grip the illicit vapes market—hence the requirement for the notification process to include non-nicotine vapes that contain nicotine.

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

The key point is that legal vaping products must be notified to the MHRA. If they are compliant, they go ahead. If they are not compliant, they go away and make themselves compliant. That is how the system works at the moment. With illicit vapes, it is an entirely different issue. I can point the hon. Lady to the evidence. When the age of smoking was raised from 16 to 18, the number of illicit cigarettes reduced significantly, so it is our expectation and hope that the same will be true with illicit vapes.

At the same time, as the hon. Lady will be aware, there was an announcement to impose an excise duty on vapes. A benefit of that, which she and I remarked on after the evidence sessions last week, is that we hope that that would enable His Majesty’s Revenue and Customs to enter the vape market into the track and trace that already exists for cigarettes and therefore to have much better control over what products come on to the market. I am sure we will talk further about that during the passage of the Bill.

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

On that basis, does the Minister think that the MHRA should have the powers to test a percentage of products that come on to the market, given that we already know that what is being notified to it is non-compliant and given what is coming into the country? I appreciate her comments on the excise duty, but does she have a timescale for when we could see a track and trace system, as we have for tobacco, extended to vapes?

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

As the hon. Lady will know, the MHRA is not an enforcement body; enforcement is for trading standards. As I mentioned earlier, there will be new resources for trading standards, as well as new training and guidelines. Also, fines will go direct to local authorities, which employ enforcement officers, so there will be a huge ramping-up of enforcement on illicit vapes, non-compliant vapes and so on. That is the place for enforcement.

On the MHRA and notification of other types of vapes, there will be powers, and the consultation will take place in due course.

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

While the Minister is doing the work on vapes, will she also look at nicotine pouches, which are incredibly concerning? We have heard that the strength of the nicotine in pouches far exceeds that in vapes. People are therefore getting a very high dose of nicotine and are sometimes not aware of the level they are getting.

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

I am frantically looking through my pack here. Clause 10 covers nicotine pouches, so we will come on to that—[Interruption.] The Whip is saying it will be after lunch, if that is not too much of a sneaky “get out of jail” card. With the hon. Lady’s acceptance, I will defer that until later.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clauses 8 and 9 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Aaron Bell.)

Adjourned till this day at Two o’clock.