Health, Social Care and Sport Committee [Draft]

Meeting date: Tuesday, May 21, 2024

Official Report 823KB pdf

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Tobacco and Vapes Bill

The sixth item on our agenda is an evidence session as part of our scrutiny of a legislative consent memorandum on the Tobacco and Vapes Bill, which is United Kingdom legislation. I welcome to the committee John Dunne, who is the director general of the UK Vaping Industry Association. We were also expecting Dr Pete Cheema OBE, the chief executive of the Scottish Grocers’ Federation, but he has not yet joined us. We will move straight to questions.

Are the witnesses satisfied that the UK Bill adequately reflects Scottish views?

The bill is flawed in many ways. One of the key issues that we have with it is that it does not address the importation of illegal products, which means that it will still allow the importation of disposable devices into the country. It also does not change the way in which products are currently authorised for sale. The Medicines and Healthcare products Regulatory Agency, which approves products for sale, does not consider the packaging, its design or even the design of the products. A lot of products that are geared towards children are imported into the country. The bill fails in those areas.

The other area that we are concerned about is that the bill does not address how young people are getting the products, so the association has put forward measures for licensing. Scotland has a registration process that is unique in the four countries, which is a great thing, but we would like it to be further enhanced. We need to punish retailers that are caught selling to minors and/or selling illegal products. Right now, the fines are too small. Even the fines that are being suggested in the legislation do not come anywhere near where they need to be. The industry is calling for £10,000 per instance fines for anybody who is caught selling to minors or selling illegal products. The Government in Westminster is suggesting £200 on-the-spot fines—frankly, that is a joke.

The bill does have some good things in it. Addressing the packaging of the products so that they are not overtly youth-appealing is a good thing, and it is the same for flavour names. The industry has been calling for that. The UKVIA has its own conduct rules for members to say that they do not use such things. If the MHRA were to look at packaging design and the naming of the products as part of its approval process in the first place, it would not be up to trading standards to try to play whack-a-mole when the products are put on the market. It is a little bit backwards, but the process could be improved.

You mentioned some examples. Is there anything else that is not in the bill that you would have liked to have been addressed?

One of the problems is that we are looking at it from the wrong angle. Although nobody wants to see young people vaping or smoking in the first place, there is a very fine line between stopping that and upsetting the fine balance for smokers who are transitioning from smoking into vaping, which is now the most successful way that adults—in Scotland and in England, Northern Ireland and Wales—give up smoking. That is pure fact.

The problem is that there is so much misinformation out there. We would like to see robust education programmes and robust public awareness programmes that talk about the benefits of vaping as a smoking cessation tool. I fear that the legislation will confuse smokers even more, because it is conflating those issues with the vaping products themselves and they are at least 95 per cent less harmful than their combustible counterparts that kill one in two users. If the legislation goes too far the wrong way, it will make the misconception even worse.

I want to touch on the demographic trends. Are there any aspects that are unique to Scotland that you would like to have seen addressed in the bill?

I do not think that Scotland is unique; smokers are smokers. However, one of the key differences is that Scotland still has a rather high smoking prevalence rate, so it is important that adult smokers are given all the encouragement and tools available to make a switch to a less harmful product if they cannot quit by any other means. That could involve gum patches or vaping products. Personally, I do not care—I just want to see smokers stop smoking.

Do you have any information about what percentage of consumers in Scotland who purchase vapes are existing smokers, as opposed to young people who start with vaping?

I have national numbers, which come from the latest figures provided by Action on Smoking and Health. The majority of users of vaping products are adults. Fewer than one in five young people have ever vaped, according to the latest numbers that have just come out from ASH. While youth vaping trial has increased—up to about 7.5 per cent—the number of young people who are vaping on a regular basis and who did not previously smoke is still relatively low, at about 3.5 per cent.

I declare an interest as a practising NHS GP.

Thank you for your statement. What evidence do you have to show that vaping is the most effective form of stopping smoking?

There are a number of reports, from both here in the UK and abroad. The Royal College of Physicians has looked into it, as has the NHS, and even ASH, with its own data, will back up that statement.

We shall ask about that when representatives of ASH come before us.

Good morning to you—and I see that we also have online engagement this morning.

I declare an interest: I am a registered nurse, and I am the co-convener of the cross-party group on lung health in the Parliament.

I am interested in the data. If you are suggesting that vaping is how people quit smoking, I would comment that I know people who have been vaping for 10 years. Is there a tail-off in some of your data? My understanding is that vaping is not good for the lungs. It causes asthma and chronic obstructive pulmonary disease. Nicotine is addictive—it is bad for you and it can cause hardening of the arteries. There are some issues around blood pressure increase and so on. I would be interested to hear about data on how long people vape for once they stop smoking cigarettes.

You have made a couple of different points there. First, nobody is saying that vaping is 100 per cent safe; there are risks, but nothing that we do in this world is 100 per cent safe. We know that, for a smoker who moves from smoking, vaping is far better for them than smoking cigarettes.

On the point about hardening of the arteries and increased heart rate, nicotine is a stimulant and stimulants do that. That is the effect that they have on individuals. While it is addictive, nicotine itself is a rather benign substance. It does not cause cancer, and it does not cause all the problems that smoking combustible cigarettes does. What kills people is the combustion in cigarettes, not the nicotine consumption.

You made another point that I have not yet covered. There are two types of people who vape. There are those who wish to consume nicotine in a less harmful way and there are those who wish to quit smoking and give up nicotine altogether. That is where we see the two different tracks coming into play.

The notes in front of me say that

“The UK-wide consultation on the legislation excluded 307 respondents”.

What are your thoughts on that? A conflict of interests is what comes to my mind, but what are your thoughts about the exclusion of 307 respondents?

First, I think that the consultation itself was very poorly managed. The questions were crafted in such a way as to lead to one answer only.

Secondly, although we are not always aligned on everything that we do, I commend the Scottish Parliament for allowing the industry to come and speak today, unlike your Westminster counterparts, who specifically sought not to engage with the industry. It is really disheartening that the Government at Westminster would exclude so many different views when coming to its decision. That was a very poorly planned situation.

11:15  

We hear feedback about young people vaping before they ever have a cigarette. For young people it is not about quitting smoking. We are seeing pink, blue and green Puff Candy, candyfloss flavour and all that. That seems to be direct targeting of young people so that they start taking nicotine into their lungs.

I agree that there are young people vaping who did not previously smoke, and that is not a good thing. That is one of the reasons why we have been pushing for licensing. The issue is at the point of purchase, when a young person is getting the product. The flavours have been around for well over 15 years. The issues that we are having with youth vaping occurred when the new style of disposables came on the market just over two years ago. That is when we started to see the increase. Before that, youth uptake was very low and disposables were only about 5 per cent of the market and were declining from a share of about 10 per cent. There is a direct relationship there, I think.

That is why we are calling for increased fines. We want all the products to be managed from the point at which they enter the country. All the distributors would be licensed and would only be allowed to carry licensed products that are approved by the MHRA—when they consider packaging design, flavour names and so on—so as to ensure that the fidget spinners and Skittles of the world are not getting into the supply chain. The retailers can then buy only from registered and licensed wholesalers. Part of the licensing has to include robust age verification training, similar to what we do with alcohol. We feel that those measures would help to squash how young people are getting the products.

We are a responsible industry and we are here to service adults. There are still 6.5 million smokers in the UK who need to make healthier choices in their lives, whether that is using vaping or other means to get off smoking. That is our core market. We do not need to target young people and, as an industry, we do not do that. In fact, UKVIA is the only trade body in the country that voluntarily tests the age verification processes of our own members four times a year. We report that back to trading standards to look at where the loopholes are and where the system is falling down. We have a success rate on those tests of around 80 to 85 per cent and improving. We feel that such measures could be built into the licensing scheme.

Secondly, for the most part, trading standards offices in the UK are massively underfunded. We reckon that the licensing scheme would generate in the region of £15 million per year from fees alone. That could be ring fenced very simply for use by trading standards to enforce the law in our area. On top of that, fines would penalise the retailers who are doing the wrong thing while allowing the responsible retailers who sell the products only to adults, for whom they are intended, to trade in a sensible way. We think that those are sensible solutions that have not even been looked at by the UK Government.

A number of members have supplementary questions, but I will first ask for a point of clarity. Who does UKVIA actually represent?

UKVIA is a coalition of about 106 members at the moment. We represent everyone from a single store retailer through to the supply chain. We have label manufacturers, box manufacturers and major retailers, one of which is a retailer here in Scotland, as well as manufacturers and distributors of the products, not only here in the UK but abroad.

That is a broad range right across the industry. What responsibility do you take for the packaging that your members use, which no doubt is bright and colourful and attractive to young people, and for that range of flavours that Emma Harper was referring to—bubble gum, candyfloss and so on—which a lot of very well-established vaping retailers carry?

I am 57 years of age; I like bubble-gum-flavoured gin, for instance, and I have candyfloss-flavoured vodka in my home. Adults like flavours just as much as young people do. As I said earlier, the flavours are not new—they have been around for 15 years. The problem with young people vaping has been around for two to three years.

Well, I tend to disagree. I will come back to you with some research.

Absolutely; you can look at ASH’s numbers; they will back that up.

Actually, I am going to come back to you with University of Glasgow figures. First, however, I will go to Paul Sweeney and then to James Dornan.

I note that around 90 per cent of the world’s e-cigarette and vape production is based in Shenzhen in China. There are about 2 million employees across 1,000 factories. How practical is it, therefore, to monitor product safety, given the concentration in that geographical area? What practical measures would you like to see to improve product safety so that we do not have additives such as vitamin E acetate, which has been responsible for respiratory-related deaths?

First, vitamin E acetate is not used in nicotine e-cigarettes—it is a binding agent that is used in the United States in illicit THC devices, which caused the Uvalde situation in 2019. That substance is not in e-cigarettes as we know them in this country. In addition, many of the compounds that are used in other countries are not used here. You need to be very careful when you are using data from outside the UK—

How can we surveil all imports to the UK in a practical sense?

Pardon?

How are we able to provide that certainty about imports? It is not practical to inspect every batch that enters the UK.

The MHRA approves all the legal nicotine-containing products here in the UK. We actually want that process to move to covering non-nicotine versions as well. That is where the illegal products getting into the country are an issue, because they do not go through the same scrutiny with the MHRA.

One area that we are concerned about with regard to the current MHRA process is that it does not actually do batch testing of the products—it relies on data from laboratories on what is in those products. That could be improved.

As an association, while we do not represent all the companies, I spend quite a bit of my time speaking with the association in China. I go out there four times a year and speak with the chief executive officers in those companies to ensure that they understand that they need to follow the rules and regulations of this country.

We are pleased to see that the Chinese Government has made changes to its domestic regulations to ensure that, if companies violate laws in other countries, they are held to account in China. I can tell you that that has been extremely successful in the past eight months.

The other area—

Sorry, we need to move on. We are quite tight for time and we have a lot of questions, so if you can keep your answers brief, that would be helpful.

No problem.

I go to James Dornan.

It is far too early to talk about the health benefits or otherwise of vaping. I accept that it might well help in the initial stages of trying to wean people off cigarettes; anything that does that is a good thing. However, surely we cannot be defending something where we know that there is damage being done by it and we are not sure what the long-term consequences of it are.

Well, we do know. Public Health England has been vocal on the subject. It knows that in comparison with smoking, in the short to medium term, vaping is far better for you than smoking. Nobody is saying that vaping is 100 per cent safe. What we know is that, if people continue to smoke, one in two of those users, if they use the product as intended, will die. We know that. If they cannot quit smoking by any other means, vaping is a good alternative, and a safer alternative, for them to use than combustible tobacco.

Can you confirm, then, that you are saying that the only reasonable use of vaping should be as a smoking cessation product? It should not be targeted at all at young people who have not started smoking.

I do not think that the products should be targeted at young people at all. They are an adult-age-gated product. However, one of the problems is that the laws in this country around the age verification for the products are not being enforced. That is one of the problems with further legislation—if we cannot effectively enforce the current legislation, how do we think adding new legislation will make the situation any better? That is why things such as licensing are the way to go.

The issue is not so much the age; it is about the fact that vaping should be a smoking cessation product. You say that anybody who is over a certain age—16, 18 or whatever it may be—should use it, and that you should be promoting it, despite the fact that you know that it is an unhealthy product and you do not even know what the long-term consequences of it are.

I think that adults are entitled to make decisions for themselves. They are entitled to consume products that may not be the healthiest for them. We consume alcohol in the same way. According to the World Health Organization, there is no safe level of alcohol consumption. We eat sweets and drink caffeine, which is another stimulant. All of those are—

You drink bubble-gum flavoured gin, so I get what you are saying.

However, that is not the issue. The issue is that you are promoting a product while not really knowing what damage it will cause.

I am no scientist, but we know that, in the short and long term, it is far better for people to use vaping products than to smoke cigarettes. The majority of the data shows that that is the case in the short to medium term. We have had these products in the market for almost 20 years. Yes, we do not know the long-term effects over 50, 60 or 70 years, but we have a massive amount of data on the short to medium term.

I will come in with one more point. You talk about the products being targeted at young people as almost a new thing. My grandkids are now in their mid-20s, and they told me about school friends of theirs at 15 years of age—that is 10 years ago—who were vaping for no reason other than that they thought it was cool. That is not a new problem; it has been going on for some time, and it has not been dealt with by the people whom you represent.

I agree—we have been pushing for licensing for well over five years. We have been highlighting the issue for a long time. In fact, I can still remember going to the press and talking to them about the increase that our members were seeing in young people trying to buy the products. It took me about three months to get a story on the subject published in a national newspaper.

We are not hiding behind that—we have been pushing it for many years. Unfortunately, however, the Government’s legislation has not caught up, and it has not been effectively used to target those people.

For instance, it has always been illegal for anybody under the age of 18 to vape—

We need to move on—we have a lot of questions.

I am sorry.

I ask you to keep your answers short, please.

I call David Torrance.

My question is for the Scottish Grocers Federation, on the smoking age and the ban on selling tobacco to anybody who was born after January 2009.

What evidence is there that an age-related ban on purchasing tobacco products will be effective? How practical will it be to enforce that ban?

Good morning, everyone, and thank you for the opportunity to speak to the committee.

There are several problems with regard to the unintended consequences of having a ban. As a nation, we are not prone to carrying identification; that is the first issue. Identifying people who are well past the age of consent now, and trying to say to them, “Look, you can buy a bottle of spirits, but you can’t buy tobacco,” is going to be an issue. It is going to be a problem, and it will cause problems for staff as well.

The one thing that neither committee members nor John Dunne have discussed is the illicit trade, which is going to increase. The illicit trade in vapes is increasing as well—

We have actually discussed that, Dr Cheema—we did so before you joined us online.

Right, okay—sorry. I was not aware of that.

Does Mr Torrance have any further questions?

No, I do not.

Before I ask my question, I want to address one point that John Dunne made. Nicotine is a highly dangerous and addictive chemical. It can increase your blood pressure, raise your pulse, increase the flow of blood to your heart and cause narrowing of the arteries. It is not a benign product, as has been said. It is very important to have that on the record.

My question is similar to what David Torrance just asked. It is obvious that someone is eight or 16, but, in 20 or 30 years’ time, how are we going to stop people who are eight or 16 now from purchasing cigarettes? Will people always have to show ID when they want to buy cigarettes?

11:30  

There is a big problem with crime in relation to getting people to produce identification—we have a real issue with that, which is why we were in favour of the introduction of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021. People just do not carry ID in this country, and they can become aggressive when they are asked for those forms of identification.

We have constantly said that that will be one of the unintended consequences of the introduction of the bill. How are we going to be able to manage that issue? I really cannot answer that question, but I know that it will be difficult, because we just do not have a history of carrying identification. In the States, for example, if you are buying alcohol in a bar, you have to produce identification. You can only buy one drink for one person or, if you are buying drinks for three people, you have to show identification. In this country, however, we just do not have that history.

Good morning. I am pleased that the committee so far seems to be taking a public health approach to the issues. Mr Dunne, I want to challenge you on a couple of points.

You said that your organisation takes the safety of children very seriously. Having had a quick Google of a few of your members, I must ask, what are you doing to address the fact that some of your members are selling flavours that are clearly targeted at children? One of them in particular is selling a flavour called Super Mix, which everyone round this table who has any young people in their lives will know is also a variant of Haribo—something that children are given as a treat. How does that square with what you said about being serious about products that target children?

We have a guidance document that we have issued to all our members in relation to that, encouraging them to change their flavours and packaging. Some of our members have already taken action on that and have removed the child-friendly names and put out blander packaging without some of the colour. We can provide our members with guidance, but it is up to them to take action.

If no one is actually taking up the guidance that you are issuing, you will forgive us for feeling that that aspiration rings hollow.

On top of that, you said that you are concerned about vapes coming in from China in particular. One member of your organisation is a medical biotechnology company based in Shenzhen, and another is the China Electronics Chamber of Commerce. How do you square the concern about vapes coming in from elsewhere with the membership of your organisation?

We have among our members a number of manufacturers of these products that are based in Shenzhen. The Electronic Cigarette Professional Committee of the China Electronics Chamber of Commerce—ECCC—is the Chinese trade association that represents 950 of the manufacturers in China. We have been working closely with it to get its members to change the ways that they do things. We have set up meetings between the ECCC and the MHRA and we are in the process of setting up meetings between it and His Majesty’s Revenue and Customs in relation to the new duties that have been announced. The ECCC has been very helpful in stemming some of the illegal products coming into this country, and works with the Chinese Government to shut down factories over there that are producing those illegal products.

Price is also a major issue that we have heard many concerns about with regard to the accessibility of the disposable vapes to young people. Some of your members are selling vapes with 20mg of nicotine in them for as low as £4.99—that is about the price of a Tesco meal deal; it is children’s pocket money. What are you doing to ensure that the prices of vapes are outwith the reach of young people? Would you support a form of minimum pricing per milligram of nicotine or something similar to make sure that they were outwith young people’s price brackets?

The simple answer to that question is that I do not buy the price argument at all. The biggest areas for smoking in this country are the most deprived areas.

Forgive me, but my question was specifically framed around children and young people.

You are trying to make the argument that pricing just affects children. These products are designed to encourage adults to make the switch away from cigarettes. Many of those adults are smoking roll-ups or illicit tobacco products. They need a low entry point if they are going to try vaping. That is why disposables have been around since day 1—they have always been that entry point into vaping.

On the issue of price, we suggested to the Government that it could drop the 2ml tank size argument, which makes no sense at all, and instead go for a 10ml minimum tank size, which would make the device cost £10 or £15, which is out of the pocket-money range that you mention but still offers value to the adult smoker, because, instead of buying five devices, they would be buying only one. That would also have an environmental effect, because it would put fewer lithium-ion batteries into the system. That would have been a more sensible way of taking the products out of the pocket-money range while still adding value for adult smokers.

So, you would acknowledge that price is an issue for children and young people, as we have heard from many parents?

It could be construed that way, but it is also important for adults.

Hello, Mr Dunne. There is strong support for the restrictions around packaging, especially given the alarming figure that around a quarter of 15-year-olds in Scotland are using vaping products. Therefore, will the vaping industry work with the Governments across the UK to ensure that changes in standardised packaging are adhered to?

As an industry, we have no problem in toning down the packaging of these products. Many of the products that I see on television at the moment are not even legal to be sold in this country because, for example, they resemble sweet packaging and so on. Those products are already illegal under other legislation but, again, that legislation is not being enforced.

I would be in favour of plainer packaging, but not packaging that emulates a pack of cigarettes. The reason I say that is because smokers are confused enough as it is. If we put these products in the same packaging as cigarettes, all that we are saying to smokers is that they are probably just as bad as the cigarettes that they are smoking, so they may as well continue to smoke. However, I have absolutely no problem with plainer packaging, and some of our members have already switched to that.

Sandesh Gulhane has a very brief supplementary question to take us up to 11:40, and it will require a very brief answer.

I want to ask about the idea of repealing under-18 offences. Do you not feel that removing the ability to confiscate tobacco and vapes from under-18s, and not making it illegal to sell vapes to under-18s, would increase the number of under-18s wanting to purchase these products?

My understanding is that that regulation applies only to tobacco cigarettes and not to vapes. However, I do not think that we need to criminalise the users of these products. What we have to do is encourage them not to use those products and penalise those who are selling the products to young people. We should criminalise that portion of the issue, rather than criminalising the users.

Thank you, Mr Dunne. We will have a brief suspension to change witnesses.

11:39 Meeting suspended.  

11:40 On resuming—  

We will now take evidence from our second panel of witnesses on the bill. I welcome Sheila Duffy, who is the chief executive of ASH Scotland, and Dr Garth Reid, who is a consultant in public health at Public Health Scotland. We will move straight to questions.

I ask both witnesses whether they are satisfied that the bill adequately addresses Scottish views that were expressed in response to the consultation.

Thank you for the opportunity to come and talk to you today. The bill represents those views well. The consultation response document shows that comprehensive feedback was provided. I know that time is tight, so I will not break it down, but you can see that in the published consultation response document. It is comprehensive and shows the support for some of the measures, including the ban on disposables, the regulation of flavours and the introduction of plain packaging, which you have just discussed.

We fully support the bill. As with anything relating to tobacco, you cannot just take one measure; you have to surround it with other measures. We urge the Government to lay and implement with speed the remaining regulations from the Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016, which would complement the measures in the bill. They were reconsulted on in 2022.

Is anything not in the bill that you would like it to have addressed?

It is important to focus on getting the bill passed, because that would be a big achievement. There are things that we want to do in the future that would also be helpful. For example, we need to consider the availability of products, which you discussed, and we need to think about how we go from the situation now, with lots of retailers selling tobacco and e-cigarettes, to having a smoke-free generation, which will mean that no people smoke and, therefore, retailers will need to sell other products. We will need to bridge the gap between where we are at the moment, with 15 per cent of people smoking, and a smoke-free environment.

I would have loved to see a measure in the bill that focused on product. The measure relating to the age of sale is internationally recognised and will progressively clear retail shelves of tobacco, which is the most lethal addictive product on open sale at the moment. If it had been accompanied—it is not, and we are where we are—by the introduction of very low-nicotine tobacco that removed the addiction factor and/or the removal of filters, which are single-use plastics and have no health benefits, that would have made the bill even stronger and bite even quicker. However, I do not wish to hold up the bill, and we support it going forward with speed.

The previous witnesses mentioned inadequate fines. Do you have similar concerns about that?

There is no single thing that will make a difference. The bill includes a combination of different actions that work together. We also need to work with retailers to help them to move away from selling such products. I am not sure that having draconian fines is the right message in that context.

We need to try to get retailers to move away from selling those lethal products. We need more focus on the combination of different actions in the bill that tackle smoking and vaping, rather than just trying to look at one thing—for example, licensing. A number of different drivers are maintaining prevalence, and we need to switch all of them off. I am afraid that no one measure will be a magic bullet.

11:45  

It is now obvious that an eight-year-old should not smoke, and it might also be obvious when they become a young adult, but, in 20 or 30 years’ time, how will we enforce that that young person, who will then be in their 40s, does not smoke?

You do not need to press your button, Ms Duffy.

Sorry—I am mucking up the system.

Most smokers started under the legal age of purchase and almost all started by their 20s. As you know, brain development goes on until the age of 24 or 25. In Scotland, we are aiming to put tobacco out of sight, out of mind and out of fashion for the generation that is growing up now and to make it as rare as snuff use currently is: it is not illegal, but it is just not much used. Between now and then, there will be a number of other measures that will reinforce that, and the culture in Scotland will change and move away from tobacco. It is not a beneficial product in any way, and there is no safe level of use. It is time that we recognised that.

My question was about how we practically do that.

We do it, by and large, by clearing tobacco from the shelves—putting it completely out of sight and shutting down any visibility of tobacco sales. We need to address the new products that are bringing young people in Scotland into nicotine addiction and raising the risk of their moving on to tobacco. That is the current problem for us to solve in Scotland.

How would the witnesses like any potential health benefits to be evaluated once the bill is passed? Obviously, it might take a while for the impact of some of the measures to show up in the population health data, but do the witnesses have any initial thoughts about how to monitor and evaluate the impact?

With its smoke-free legislation, Scotland set a world-beating standard of research. We looked at changes and were able to show that industry arguments did not follow through into reality and that there were beneficial health impacts. We need to monitor and evaluate carefully.

I am aware that there are not necessarily the budgets to do thorough research. In Scotland, we have seen the gains in reducing tobacco use by and large in youngsters not taking it up. However, I am seriously concerned about the gaps in data on youth vaping, because the reliable widespread data that we have is from 2022, but things change and are fluid. There is a data gap that we should fill to see what happens with not only e-cigarettes but nicotine pouches, which appear to be the next upcoming products that are aimed at the youth.

It is a great question. With the legislation on smoke-free enclosed public places, we had a range of studies that tackled the issue. For example, there were studies on people working in bars to see what happened to their respiratory health. We also examined what might happen to sales over a longer period and considered other health conditions.

It is necessary to have research on the immediate effects. There would quickly be benefits relating to some of the respiratory problems that you get from smoking. If you quit smoking, you start to see health benefits quite quickly. Of course, there are other conditions, such as cancer, that take a long time to develop.

You want to have an evaluation that has a clear theory of change, and it should look at the immediate impacts and think about the long-term impacts. It would be helpful to have regular reporting so that we can monitor progress. There are UK funding bodies that would, I think, be interested in evaluating such an intervention. It is a world-leading and brave policy to enact, so I think that lots of academics would want to evaluate it.

There are two sides to data collection. There is the collection of data on smoking and increasing age and, as you said, Dr Reid, acute harms from that will show up relatively quickly. For vaping, however, we could be looking for different data, because we have not seen the long-term chronic harms of vaping, particularly for young people who start as young as 10, 11 or 12—eight in some cases.

Refillable products are also still out there, and the industry can reinvent itself and come up with another product that is within the right price range for young people. We need to be alive to any of those evolutions.

On the research into vaping, what do we need to do to monitor the impacts of the disposables ban and to note any further trends and changes so that we can move policy and legislation quickly to react to what is going on?

That is also a great question. We should be looking at some of the prevalence data to see what is happening with young people who use such products. We should also look at what some of the other impacts might be. We could do qualitative research to see how children understand the products.

We know that research shows that flavours entice children to start vaping. We can also look at the kind of triggers that children are experiencing. Children are walking around our communities and seeing the products displayed prominently and, as the committee has seen and alluded to, they are brightly coloured, so they are enticing for children. If the flavours and the packaging were changed and the product and the packaging were made plain, we could look scientifically at how children respond to that and whether they find them less appealing.

We became aware of the problem of a very steep rise in children’s use and underage use through hearing the voices of young people, parents and teachers, way ahead of the research. We are engaging with young people, teachers and youth organisations to hear from them about what is happening out there and how it is impacting them. We are also looking to hear from those who are affected by such products, such as people who feel that they cannot go into the school toilets, for example, because it might trigger an asthma attack.

The research is moving incredibly fast. Up until about a week ago, I was glibly saying that it will take 30 to 60 years to see the serious effects of e-cigarette use, but then I was pulled up by a US professor who said that there is recent research that can tell us about some conditions and not others and that the harm to the cardiovascular and immune systems, for example, is much greater than we thought it would be. The data is not in for serious cancers yet, but we know about carcinogens.

I would like to take issue with a number of points that John Dunne made, including the 95 per cent factoid, which is a zombie estimate from the very early days of e-cigarettes that will not die. I totally disagree with that. The latest research suggests that there is a much narrower gap in harms for some conditions but that there are additional harmful factors with e-cigarettes. The Venn diagram shows that dual use is the worst pattern because it exposes people to the harms of tobacco and the separate additional harms of e-cigarettes. That is the major pattern of use in Scotland, with nearly 43 per cent of vapers also smoking.

I completely agree with Garth Reid that we urgently need to deal with the advertising, the visibility and the targeted appeal to children. We had to argue the case to get rid of tobacco flavours, to put tobacco out of sight and to curb the advertising. That urgently needs to be dealt with, and Scotland can deal with it.

That is great. Thanks.

I was going to pull Dr Cheema up on his comments about ID and how difficult it will be for retailers to stop people from getting cigarettes after the new legislation comes in. Has any young person in this country not grown up having to have ID to show that they are of an age to get a drink, or even cigarettes as the case may be now? I do not really see how that would be an issue. Does the panel agree?

In Scotland we have the Young Scot card, which is free and given out in schools. The photos on the cards can be renewed as young people get older. The card programme runs up to the age of 24. It offers an incentive scheme and is not industry influenced. It is therefore a ready form of ID for young people.

I ask those of us who were there at the time to cast our minds back to the campaign for a smoke-free Scotland. The industry predicted riots and violence, and an NHS crisis centre was set up, but people in Scotland moved on. After six months, they were able to look back and ask, “Why did we think that was normal?”

In the past, when the age for the sale of tobacco has been raised, we have seen smoking among young people reducing. I agree absolutely with Mr Dornan’s point that young people already need to show ID, so that is a bit of a strange argument. Perhaps committee members are not being asked to show ID, but a group of people aged around 18 would be used to doing so as a matter of course. I hope that that answers the question.

Good morning to you both—actually, it is almost good afternoon. Earlier you probably heard me asking John Dunne about the exclusion of the submissions of 307 respondents to the UK-wide consultation. I am interested in your thoughts on the rationale behind those exclusions. You probably heard me asking about conflicts of interests, for instance.

I do not know for certain, and I have not looked at the reason for them, but you are probably right to think that the exclusions could have been made because of conflicts of interests. The job of John Dunne, who gave evidence earlier, is to come here to present and defend his industry. Conflicts of interests can affect what people might say about the balance of harms. A good example of that is the 95 per cent figure that Sheila Duffy talked about earlier. Public Health England does not exist any more, so that figure must be really old. As Sheila said, unfortunately, newer research is starting to show that e-cigarettes do cause harm. That is not to say that they are more harmful than smoking, but we need to examine that possibility as the science moves on, and go with that approach.

To answer Ms Harper’s question, I would think that the exclusions would have involved a conflict of interests, but why that aspect is so important might need to be explained.

We always look to the WHO, because it is on top of the science in all the various disciplines and it monitors the tobacco industry’s international activity. The WHO also presides over the framework convention on tobacco control, which recognises that the aims of tobacco companies are fundamentally and irreconcilably opposed to those of public health bodies. My assumption would be that the responses that Ms Harper mentioned were excluded because of their links with the tobacco industry.

It is easy to assume that the Scottish Grocers Federation represents local retailers and that the UKVIA represents vaping businesses. However, the University of Bath’s Tobacco Tactics website shows how strongly both organisations lobby against restrictions on e-cigarettes and how the Scottish Grocers Federation has lobbied against the ban on tobacco displays in Scotland and against plain packaging.

12:00  

I am astonished by the suggestion that ordinary retailers should be fined £10,000 when so many are struggling to stay in business. They are being visited, weekly or fortnightly, by tobacco company representatives who are absolutely in with the bricks with the UKVIA and the SGF, who are scaremongering and misinforming those retailers. The suggestion that somehow people will choose to change packaging or colouring, for example, but that we ought to fine ordinary retailers £10,000 is outrageous. We need to put the blame, the focus and the onus on the multinational corporations that profit from people’s addiction and the health harms that go with it.

Can I ask another wee quick question? John Dunne said that he supports the introduction of a licensing scheme, but that will not go ahead under the bill. What is the problem with having such a scheme?

Scotland’s register of tobacco and nicotine vapour product retailers, which retailers require to be on if they are to legally sell tobacco or any form of e-cigarettes, including those that do not contain nicotine, has been a positive move, and other nations of the UK regard it with some envy. It is a source of information for researchers to see who is selling where, and it is divided into larger and smaller premises. ASH Scotland has asked whether that register could be made conditional, which would mean that any regulations that were approved by Parliament could then be communicated to retailers on the register.

I have not yet fully understood the UKVIA’s request for licensing. However, as is the case with alcohol licensing, I know that such a scheme can be burdensome and cumbersome for local authorities, and it is difficult to bring an effective court case to stop people selling when they have been guilty of selling alcohol to customers who are under age, for example. We need to unpick that.

A certain responsibility for licensing is coming through as a result of previous European tobacco directives. We need to look carefully at what we do, how we do it and what the outcomes are. However, my money would be on using Scotland’s register, which I mentioned earlier, and exploring how we could get the best out of it. I know that the Scottish Government is currently putting money into redesigning that register to make it fit for purpose and a good source of information.

Some retailers now sell vapes to customers who order pizzas to be delivered to them. My understanding is that their age is not verified when vapes are delivered along with the pizza that they have just ordered.

That is definitely an issue. When I have wandered around Edinburgh I have seen adverts mentioning a minimum spend of £30, but it looks as though that is for the fast food that is being delivered to people’s doors. I agree that there are real issues there and we need to address them.

Can I contribute to the licensing point? I support having a licensing scheme. It could be part of the picture, but it should not be at the cost of the other measures in the bill. We could come back to licensing in the future, as part of a package of measures. We will need to consider how we move forward and work with retailers to go from where we are at the moment to having a smoke-free generation in which retailers are not selling the tobacco that is so lethal. I do not think that retailers want to sell it.

Last year, the University of Edinburgh published research that examined the importance of tobacco to footfall in convenience stores in Scotland. It shows a significant reduction in such importance, which is a positive thing that shows that retailers are on the start of a journey to move away from selling such products. If licensing were to be done in a way that was supportive and focused on how we change the environment, but retailers still had other products to sell, that would be okay. However, the bill probably needs to go through as it is and not railroad other provisions that might make the whole thing fall apart.

I want to ask about the balance between regulation and potentially creating additional harms as a result of prohibition. We know from Scotland’s drug death crisis that prohibition has been ineffective at reducing public harms, and a recent WHO report has shown that, in Scotland, 23 per cent of 15-year-old boys and 16 per cent of girls of the same age have used cannabis. How do we balance the risk of pushing the market into the black market—that is, into an unregulated space where THC products and so on might be sold? Where do you feel that that balance sits?

When the age of sale was increased in the past, it was claimed that there would be a rise in illicit sales, but we have not seen that happen. We just need to be mindful of falling into the trap of repeating industry lines.

Because the age-of-sale approach will be quite slow—after all, it will happen only year on year—it will give retailers time to look at what they are doing and change their products and it will give society time to get used to the new context. That is different to the approach of the smoke-free legislation through which, overnight, you were not allowed to smoke in enclosed public places. You will have noticed how the environment at the time in pubs or on buses, for example, was suddenly completely different. Again, the policy aspiration here is to profoundly change Scotland as a country, but the approach will be different, with this incremental year-on-year change. Because it is slow, we will be able to look at it.

Under the bill, there will be £100 million of additional funding for trading standards over time. Therefore, the age-of-sale approach is not the only measure; it needs to work together with more enforcement and cessation. It all works like a jigsaw coming together, if that makes sense.

The prospect of illicit sales has been a go-to argument against every tobacco control measure that has ever been proposed and it always comes up in relation to tax. However, it is a completely separate issue, because “illicit” means criminal. It is not to be in any way endorsed, but stopping it relies on effective enforcement, not on not taking health measures.

Although money is being allocated to trading standards in England, there are still question marks over whether that money will come through to front-line enforcement in Scotland. That said, under the current proposals, there will be excise duty on e-cigarettes and that will bring in customs and borders control, which is not involved at the moment. Trading standards does not have the same search and seize powers.

We also know of some well-established illicit trade routes that run from Ireland to Scotland and down to the north of England that trading standards cannot touch at the moment. The Chartered Trading Standards Institute estimates that about one in three of the e-cigs used in the UK is illicit. Illicit sales are a problem on their own, however. It is a criminal issue, and we should not let it hamper the introduction of health measures, which are separate and important in their own right.

Nevertheless, I see an interesting intersection here, given our perspective of drugs as a public health issue rather than a criminal issue. I am curious about where we strike the balance. Perhaps that will require a longer piece of work instead of just trying to introduce this particular approach at this point in time.

I do think that a concern is that, in certain communities, the legislation could introduce the risk of the sort of THC-related deaths in America that are associated with illicit e-cigarettes with additives such as vitamin E acetate. I am thinking about the marginal areas of particular deprivation and the exploitation of young people and wondering whether concerns could arise there.

THC vapes are being used by young people in Scotland. I spoke to someone in a Scottish region who had surveyed more than 10,000 young people, and it had come up as an issue.

However, the MHRA does not really test products; it receives information from the manufacturers. It might spot-test a couple, but it puts them on the register. These are not controlled products in the way that medicines are. They are recreational consumer goods, and they are lightly regulated and underregulated.

Interestingly, in a recent piece of research based in Ireland, the notified ingredients and flavours of e-cigarettes were run through an artificial intelligence programme to see what would happen if you heated those chemicals to the temperature that they would be heated to in e-cigarettes, and five of them came out as having really nasty effects that we were not aware of. We have a real issue with illicit and legally sold goods and with non-compliant goods that are not what they say they are.

Thank you. I appreciate those responses.

We talk about the use of vapes in smoking cessation, but, ultimately, they represent a very small proportion of those that are used. When I walk into my local Asda or other shops, I see vapes being sold in prominent places. Some have lights on the sides and they have very bright colours. It is literally the opposite of what we have done with cigarettes. Is it fair to say that the industry is targeting children with the way that vapes look?

The massive incremental rise in the number of children and young people who are using e-cigarettes was more or less triggered when the Chinese Government withdrew permission for highly-coloured devices with fruit or other sweet flavours. It did so on two grounds—youth uptake and health concerns—but it did not stop exporting them, and we are now dealing with a problem that it recognised and dealt with.

We absolutely need to close down the visibility of the retail displays in shops, the marketing that is noticed more by children and the flavours that they are more likely to choose. The arguments against doing that are the same as those that were used against reducing fruit and sweet flavours in tobacco or getting rid of alcopops. Some adults like fizzy sweets, but they are not the primary uptake in the real world. E-cigarettes are universally recreational commercially-sold goods; none is available as a medicinal licensed aid.

I agree with your point about how these products are promoted. It is not a mistake by the industry.

On the issue of cessation, it is important to point out that, in the Scottish health survey—one of our longest-standing surveys—only 21 per cent of smokers reported using an e-cigarette to quit. Therefore, the majority—almost 80 per cent—are using other products. It is a distraction to focus on e-cigarettes as a means of cessation. Other things are far more important. Most people just quit on their own without using anything, and the next quarter use patches and gum.

You asked a great question about the sale of tobacco and the promotion of e-cigarettes in supermarkets. Small convenience stores will need time and support to change, but supermarkets, which are enormous and have made huge amounts of profit, should be showing leadership and starting to change their stores now. After all, there is no reason for supermarkets to sell tobacco, and there is no reason for them to have these big shiny e-cigarette displays that children see and find appealing.

We should not have to legislate every time that we want to see such a change. It would be great if the supermarkets saw what was going to happen with the smoke-free generation and decided to take things into their own hands and take action. We know that discount retailers do not sell tobacco, so, as far as your question is concerned, there is really no reason for supermarkets to advertise e-cigarettes or to sell tobacco at all.

I have never seen so many vape shops on our high streets; it seems as though almost every other shop is just a vape shop, and they all have advertising on the outside to get people to come in. However, such a dramatic increase in vape shops—or in sweet shops or any other shop selling vapes—will happen only if there is a huge profit to be made. How do we get on top of that?

12:15  

The bill contains a really good combination of measures. As Sheila Duffy has said, the increase in tax can be used for health purposes or enforcement, and there will be measures to tackle certain flavours that, as we know, encourage children to start vaping. Displays will be covered over, which, again, will help to denormalise the environment that our children are in, and the packets themselves will be plain. That comprehensive set of measures could come together to tackle the different drivers.

It is not the children’s fault that they are vaping and it is not their parents’ fault, either. It is all to do with how the industry has promoted the products, with children responding to their packaging and appeal. If we could get rid of some of the triggers and drivers for children and explain to them that these are not products for them, we would, I hope, see a change and a reduction in youth vaping.

I am glad that we are talking about children, because I am a bit concerned about the repeal of under-18 offences. It will, for example, stop the police confiscating tobacco products from children. Is that something that you want to be put in place?

We welcome the repeal of the criminalisation of the underage purchase of tobacco. The measure came in at the insistence of the Scottish Grocers Federation. It said that if responsibility was going to be put on retailers, responsibility should also be put on underage purchasers.

I share your view that it would be better for these products to be confiscated from children, because they are so harmful and addictive. I would like a clear message to be sent that these products should not be allowed in schools, handed around or sold to children on health grounds. I would point out that, for underage test purchases, the failure rate for e-cigarettes is 20 per cent, while the figure for tobacco is 10 per cent. We need to get on top of that.

As for how we hold the industries to account more, we have to look at a health tax in Scotland or a polluter-pays tax at UK level. We have to start clawing back some of the vast profits. When these cheap, coloured, fruit-flavoured disposables came on to the market—and I have seen these things being sold as cheaply as £1.99—retailers could buy a box of them at wholesale, mark them up by a pound a throw and make a vast profit while still selling them very cheaply. We need to start looking at who is profiting from this and at whether we can impose a health tax on them to discourage them.

We also need to find some way of challenging some retailers who are consistently giving misinformation about, say, the 95 per cent factoid and their role in smoking cessation. One of UKVIA’s major members—in fact, its Scottish spokesperson—advertises or has advertised stop-smoking clinics; it was picked up by the Advertising Standards Authority for doing so, because it was really just a try-or-buy thing. It was also recommending heated tobacco products, which no reputable health voice has recommended in any way for cessation. We have to start looking at where the profits are being made and hold those people accountable.

Finally, Sheila Duffy, you mentioned children in schools. Does the repeal of under-18 offences mean that a teacher in school cannot confiscate the products, because they can be challenged and potentially get in trouble?

At the moment, it is illegal to sell e-cigarettes to under-18s or to buy e-cigarettes for them. Schools should therefore be able to treat them in the same way as they treat alcohol and tobacco, and that should not change. This will be a decriminalisation of the consumer, not a decriminalisation of underage sales on the part of retailers or through proxy purchase.

But if the police cannot confiscate these things, how can a teacher?

I do not know to what extent the police are currently confiscating them, but I think that schools have their own rules. If young people bring in these products, schools should be able to confiscate them just as they can confiscate alcohol and tobacco.

I thank the panel for their attendance today. Next week, the committee will undertake stage 2 proceedings for the Abortion Services (Safe Access Zones) (Scotland) Bill.

That concludes the public part of our meeting.

12:20 Meeting continued in private until 12:41.