Tobacco and Related Products Regulations 2016 - Motion to Regret

– in the House of Lords at 7:33 pm on 4th July 2016.

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Moved by Lord Callanan

That this House regrets that the Tobacco and Related Products Regulations 2016 place restrictions on product choice and advertising of vaping devices, were devised before evidence had accumulated that vaping was enabling many people to quit smoking, run counter to advice from the Royal College of Physicians to promote vaping and are so severe that they could force vapers back to smoking and create a black market with harmful products; and calls upon Her Majesty’s Government to withdraw them (SI 2016/507).

Photo of Lord Callanan Lord Callanan Conservative

My Lords, the issue of vaping and the tobacco products directive gives me a curious sense of déjà vu. Before I arrived in this House I was a Member of the European Parliament where, alongside a number of other MEPs from many varied parties and nations, I also opposed these restrictions. We made some improvements to the text but we were unsuccessful in our aim of removing vaping devices from the directive altogether. I never imagined at the time that I would have an opportunity to return to the issue in this House.

Eight weeks ago a number of us gathered in the Moses Room to debate a Motion on this subject tabled by my noble friend Lord Ridley. Everyone who spoke in that debate—including, to his enormous credit, the Minister—expressed considerable concern about these regulations. Since it was self-evident that neither the Government nor the Opposition thought this was a helpful package of measures, I put down a Motion for a Prayer for annulment. No one likes these rules, so why implement them? I quickly realised that I was straying into controversial constitutional territory—although, given recent events, a mere fatal Motion in this House now looks like a rather inconsequential intrusion on the constitutional landscape of this country.

E-cigarettes are by far the most popular gateway out of tobacco for our nation’s 9 million smokers. Some 100,000 of us die every year from smoking; that is a Hillsborough every eight hours. As my scientifically literate friends will no doubt explain, it is the smoke that kills, not the nicotine. There is now emphatic evidence of how much safer vaping is than smoking. Numerous studies have shown that vaping is 95% safer than tobacco smoking. In the UK, 2.8 million people have either stopped smoking or reduced their smoking significantly as a direct result of vaping. Yet, given all that evidence, these regulations will reduce by 95% the number of products on the market, ban the stronger liquids favoured by many vapers and ban virtually all forms of advertising to prevent suppliers from recruiting new smokers to the vaping cause.

So how have we ended up with this crazy state of affairs? The Department of Health prides itself on being a “global thought leader” on tobacco, to use its words, and while the department has played a strong game on pure control measures, by which I mean the ban on public place smoking and the taxation of smoking, it has been little short of appalling on its approach to tobacco harm reduction, by which I refer to the development of much less harmful substitutes to smoking.

There are two particularly egregious failures on the policy treatment of these smoking substitutes. The first occurred when the Minister of Public Health was one Edwina Currie. In 1988, in a moment of unhelpful decisiveness, she pushed through a ban on a product commonly called snus. This is an oral tobacco product which is a bit like sucking a teabag of tobacco leaves, and if noble Lords have not tried it I would not recommend it. Four years later, the EU decided also to adopt a ban. The only exception to the ban is Sweden, which negotiated an opt-out in the run-up to its referendum on joining the EU. Being permitted in one EU country but banned everywhere else provides us with a perfect case study of harm reduction measures. Because of the widespread use of snus, Sweden has by far the lowest smoking rate in Europe: 11% compared with the EU average of 26%. All the major forms of cancer are far lower, with the lowest disease rates correlating with the highest use of snus. The European Journal of Epidemiology has estimated that 200,000 lives could be saved every year if the EU had the same male smoking prevalence as Sweden, yet the product is banned because of us.

A second major blunder has been of course with the much more modern substitute of e-cigarettes. Here the Department of Health’s medicines agency, the MHRA, tried to ban them outright in 2010. It failed, so it tried again in 2013, declaring that they should all be medicines. Despite its opposition to commercially regulated e-cigarettes, the MHRA has failed to get even one medicinally regulated e-cigarette on to the market during the past three years, whereas the commercial market has so far managed to produce about 25,000 product varieties.

The 2.8 million vapers using those products are not smoking literally billions of deadly tobacco cigarettes. Displaying a marvellous gift for understatement, the Royal College of Physicians this year declared that the MHRA’s policy had been “counterproductive to public health”. However, in 2013 the Department of Health lobbied vigorously in Brussels for a Europe-wide policy of compulsory medicinal regulation. While I and my former colleagues in the European Parliament were able to ameliorate the policy, there was only a limited amount of change we could get through, hence the very flawed package that we are reviewing today. Economic modelling suggest that just one of the measures in it, the ban on stronger e-cigarettes, will cost more than 100,000 lives a year around the EU.

Not only was it a disastrous policy, it was also a disastrous policy process. In 2013 the then Public Health Minister, Anna Soubry, appeared before the European Scrutiny Committee to explain why she had decided to use a scrutiny override without informing other departments when she voted for this directive on behalf of the UK Government. The Minister told the committee in her evidence that e-cigarettes had in fact been excluded from the directive. They had not. If noble Lords can cope with viewing that cringe-making performance, it is, as they might imagine, widely available on YouTube. That level of competence was not just available at ministerial level. The Chief Medical Officer declared to the New Scientist a few months later that e-cigarettes were one of the three biggest health threats to the UK, along with obesity and binge drinking. It would be funny if the issue were not so serious.

What are the lessons of these two major policy errors by the Department of Health, which are costing us thousands of lives in this country? The first is the need for strong political leadership in the department. It is no good for the Secretary of State, who has presided over this latest debacle, to keep his head down. The new Prime Minister needs to recruit a real talent for the role of Minister for Public Health.

The other issue that needs to be looked at very hard is the role of the MHRA in policy development. It is a fact that this agency derives most of its revenue from the pharmaceutical industry. It is also clear that it has lobbied very hard for a land grab on e-cigarettes, yet has signally failed to deliver with any product available for consumers. Ministers should be extremely cautious about listening to its lobbying.

Let me give the House my favourite example of the way in which the MHRA is implementing the regulations. Many suppliers sell refillable e-cigarettes that are sold empty, ready for consumers to use their own e-liquid in them. A number of retailers told me that the MHRA had instructed them to affix warning labels to these products saying that they contain nicotine, which of course they do not at the point of sale. I assumed my correspondents were exaggerating and had got their facts wrong, so I obtained a copy of the official MHRA guidance. Let me quote from the section headed “Labelling your Product”:

“If your product does not contain nicotine when sold, but can be used to contain nicotine, the warning statement ‘This product contains nicotine which is a highly addictive substance’ must still be applied”.

It helpfully goes on to state:

“To provide clarity for consumers, we recommend adjacent wording (not part of the boxed warning) to the effect that the warning applies when the product is used as designed and … filled with nicotine-containing liquid”.

In other words, first, they must falsely label the product as containing nicotine when it does not, and then they must clarify for consumers that the product will contain nicotine as soon as they put some nicotine liquid in it. I do not know whether to laugh or cry at the MHRA, but in my view passing such regulations brings the law into serious disrepute.

Bizarrely, while the department is doing its best to restrict sales of one tobacco substitute, which costs taxpayers nothing, we are heavily subsidising nicotine-containing gum and patches, because they are given out on prescription. The difference, of course, is that these products are made by the big pharmaceutical companies, which appear to have the Department of Health as a sort of wholly owned subsidiary. These companies stand to lose large amounts of money as sales of their nicotine substitutes have collapsed with the advent of e-cigarettes. The pharmaceutical industry uses its massive spending power to manipulate the harm reduction debate. It funds conferences, so-called medical charities and quasi-academic research to justify its position. If the Department of Health is to improve its performance on tobacco harm reduction, it needs to be just as cautious in its dealings with pharmaceutical companies and their allies as it is with the tobacco industry.

This poverty of performance by the Department of Health led my noble friend Lord Prior to confess to the House that, if it had not been for the moderating effect of Brussels, the new regulations could have been “far worse”. This is a very difficult issue for a Brexiteer such as me to confront. Certainly, and somewhat unjustly, the EU has been on the receiving end of anger over the e-cigarette regulations. One poll found a very large majority for Brexit among vapers, who said they were angry with the regulations because of what they perceived to be the excessive influence of the big companies. Some of my noble friends might even wonder whether Anna Soubry in her role as Minister for Public Health was a sleeper agent for Vote Leave.

Where should policy go now? Although contrition from the Minister would be welcome, the key is to take concrete steps to improve the situation. Critical issues to which I ask the Minister to respond this evening include measures to rebuild consumer confidence in e-cigarettes. Smokers who do not currently vape perceive e-cigarettes to be much more dangerous than scientists say they in fact are. We need serious action, not just a few warm words. We also need a clear plan to put into production medicinal supplies of the stronger e-liquid used by a quarter of a million vapers, including my noble friend Lord Cathcart. It would be unconscionable if the MHRA was to fail on this once again. The need is simple: several suppliers of base e-liquid should be approved by the MHRA before Christmas.

Now that we are going to leave the EU, we have the opportunity to make regulations that will be evidence-based and to create a climate in which smokers can quit for safer products. We need to remove the ridiculous restrictions on product choice and the advertising of e-cigarettes and other reduced-harm products, such as heat-not-burn products. To this end, I welcome the Treasury’s consultation on the taxation of heated products later this year.

Finally, there is the global policy-making role of the department. When the Framework Convention on Tobacco Control meets in India later this year, I hope it will consider a Department of Health advocacy paper on harm reduction free from the commercial interests of the pharmaceutical industry. I beg to move.

Amendment to the Motion

Moved by Lord Hunt of Kings Heath

As an amendment to the above motion, to leave out “and calls upon Her Majesty’s Government to withdraw them” and insert “and further regrets that the Regulations are not to be accompanied by a public information campaign to reassure smokers that electronic cigarettes are less harmful than normal smoking; that smoking cessation services are being cut back at the same time as the Regulations are being introduced; and that the Regulations are due for implementation before the Government have published their tobacco strategy.”

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I welcome this debate and thank the noble Lord, Lord Callanan, for allowing us to have a further go, since we have already debated it in Grand Committee. I am sure the Minister is looking forward to winding up at the end of the debate.

I should declare an interest as president of the Royal Society for Public Health, which has pronounced on e-cigarettes. I would say to the noble Lord, Lord Callanan, who was a mite critical of the organisation, that as a Minister I established the MHRA, and I am glad to see that it is doing so well in relation to this matter. I liked his rousing endorsement of the record of Ministers in his Government on this matter. When he mentioned Edwina Currie, I thought he was going to talk about eggs—he will recall that she had a bit of a downer on egg production—but she did not quite take it to Europe in the way he suggested.

I have moved an amendment to the Motion because, although I share some of the noble Lord’s concerns about the regulations in relation e-cigarettes, my problem with his Motion is that he calls on the Government to withdraw the entire set of regulations. The regulations cover e-cigarettes, but there are also a lot of useful measures that will discourage smoking in general. That is why I cannot support the noble Lord’s Motion, although I share some of his concerns.

It is pretty clear from the work of my own organisation, the Royal Society for Public Health, as well as from that of the Royal College of Physicians and other health bodies, that e-cigarettes can actually be an incredibly useful tool in encouraging smokers to give up smoking. The core of people who have already taken advantage of e-cigarettes are often those whom traditional public health measures have not touched. That is why I am particularly concerned about whether the regulations will have a negative impact on that group.

Equally, I know that noble Lords will quote the report of the Royal College of Physicians. It is worth reading because it says that there is a case for some regulatory provisions, and the Minister will no doubt refer to that. However, my main concern is the point, which was made by the noble Lord, Lord Callanan, that RSPH research has revealed that 90% of the public have the impression that e-cigarettes are at least as harmful as tobacco. That is not helped by the fact that some organisations have notices prohibiting not just smoking, but vaping. Because some elements in the public health field—how can I put this kindly?—perhaps got the wrong end of the stick when e-cigarettes were first produced, they have given the impression that e-cigarettes are much more harmful than they are. The problem with the regulations is that they colour the context, and the public may be confused about the positive effect that e-cigarettes can have. Therefore my amendment to the Motion—I do not intend to delay the House very long—seeks to draw attention to some of the concerns that we have about the regulations on e-cigarettes, although we wish to see the regulations introduced as a package.

However, I also draw attention to the other problem that we have with the Government’s current policies on smoking cessation, which is that budgets, particularly those which go to local authorities, have been drastically reduced, and we have seen a drastic reduction in smoking cessation services. As an example, the amount of money that has been spent on smoking cessation media campaigns has been drastically reduced. Some £24.91 million was spent in 2009-10, which has become £5.3 million in 2016. Of course, I understand budgetary constraints, but I would also say that because of the risk of confusion by the public over e-cigarettes, some Department of Health-sponsored public campaigning is necessary to get the right facts across to the public.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

The noble Lord said that he could not support my noble friend’s Motion because it referred to all the regulations. Why, then, does his amendment not seek simply to delete Parts 6, 7 and 8 of the regulations? Which parts of the regulations as they stand does he not agree with?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

I thought that my amendment elegantly dealt with the broad principles rather than going into technical details such as which paragraph I do not like. I am disappointed by the noble Lord’s intervention on that matter. No doubt he is stunned by his noble friend’s remarks that in fact the EU came to the rescue of the UK. We know that if the EU had not legislated in this area, the Government would certainly have brought in legislation much earlier which would have been much more draconian than the regulations that are before the House tonight.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

No doubt we will of course be able to see in the future what a Government would do in the event of Brexit. However, to be fair, at the moment we are debating these regulations, which have come into force. I have attempted to signal some of my concerns that this would have a negative impact on the use of e-cigarettes without detracting from the overall regulations. I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat Lords Spokesperson (Health)

My Lords, I was most interested in the speech made by the noble Lord, Lord Callanan, and in particular his gallant admiration of his colleague the Public Health Minister, who in my experience has usually been quite on top of her brief. I venture to warn the noble Lord never to make a mistake in your Lordships’ House, because I suspect that Facebook might be watching. I was also very moved by his defence—in fact it was quite tear-jerking—of the discrimination against the multi-billion pound tobacco companies compared to the multi-billion pound pharmaceutical companies.

I agree with much of what was said by the noble Lords, Lord Callanan and Lord Hunt of Kings Heath, about the desirability of encouraging smokers to give up smoking. There is no doubt that vaping devices have an enormous role to play in this campaign, as many former smokers have managed to give up through using them. However, the regulations are not just about vaping devices but include, as the noble Lord, Lord Hunt, pointed out, standardised packaging regulations, which are essential for ensuring the effectiveness of the health information and warnings on cigarette packs. They also help to enable the UK to meet its obligations as a party to the World Health Organization’s Framework Convention on Tobacco Control with respect to tobacco packaging and labelling, and product regulation.

There is no doubt that vaping devices have already been an enormous benefit to public health—although I fail to see why we need 25,000 different kinds of them—and have saved the NHS a great deal of money. When the directive to which these regulations give effect was first discussed in the European Parliament, as has been said, the Liberal group, which contained at that time several Liberal Democrat MEPs, worked hard to ensure that while the regulation of tobacco packaging continued to be robust, the regulations about vaping devices would be proportionate. Given that the original proposals followed the World Health Organization’s recommendation that these products should be licensed as medicines and would therefore be extremely tightly regulated, the Liberal group had some considerable success in making them a bit more proportionate, resulting in the directive as it is now. However, one of the things on which the group was not successful was the prohibition of commercial advertising of vaping products. This is the major item contained in my regret Motion.

According to the Royal College of Physicians, vaping is 95% less harmful than smoking and half of all smokers die from diseases that result from smoking. That is why it is vital that smokers can get information about these products and their benefits, and I regret very much that publicity about them is to be restricted. However, I support the noble Lord, Lord Hunt, in his call for a new public information programme to inform smokers of the benefits of switching to e-cigarettes. It may surprise your Lordships to know that half of smokers are not aware of how much safer for their health e-cigarettes are. I also agree with the noble Lord, Lord Hunt, in regretting the cutting of smoking cessation services—one of the many results of the public health funding cuts which I have condemned many times in your Lordships’ House.

I suppose that one of the reasons for the advertising ban is the fear that advertising will attract young people to vaping even though they have never smoked. This is of course undesirable, because nicotine vapour is very addictive, and I would not want to see children being attracted to spending their money on something so addictive and with no known benefits to their health. Indeed, more research needs to be done on the effect of nicotine inhalation combined with the various flavouring chemicals used in e-cigarettes. Some evidence is emerging that if inhaled, some of the flavourings may be harmful to the delicate cells lining the lungs. But although e-cigarettes have been around for years, there is no significant evidence that they are attracting non-smokers to take them up. On the other hand, we now have a large and growing cohort of people who use vaping devices, which is why I call on the Government to fund research on the benefits and—if there are any—the dangers of vaping.

Everything should be done to encourage smokers to switch to vaping, which is why my Motion also regrets that little attention has been paid to those vapers who claim that they need the higher-end concentration of nicotine products, which would be banned by some of these regulations, to help them give up smoking. Only time will tell whether that is the case. That is why the Government need to monitor and report on the implementation of these regulations and their impact on public health. While the further regulations on cigarette packaging are likely to be good, those on vaping devices could turn out to be bad.

Therefore, like the noble Lord, Lord Hunt, I do not support the Motion in the name of the noble Lord, Lord Callanan—that the Government should withdraw these regulations—because we need the ones that affect tobacco. However, although I sincerely regret the Government’s current intention to withdraw from the European Union in the fullness of time and hope very much that it never happens, the current situation does give us an opportunity. As things stand we are not able to keep the good tobacco regulations and ditch the undesirable ones, but the forthcoming negotiations do give us an opportunity to do a bit of cherry-picking.

I therefore ask the Minister, what is the Government’s intention with regard to these and other EU regulations? Do they plan to adopt them all and then repeal the ones they do not like? If so, I call on the Government to consider carefully any deterrent to smokers switching that might result from these regulations, and to repeal the ones that deter them as soon as possible. Of course, that would require careful monitoring and publication of the results. On the other hand, in the unlikely event that the Government plan to repeal all EU regulations and then adopt new UK ones, I call on them to replace only the ones that affect tobacco packaging and marketing to further decrease the public health burden of tobacco and the terrible effects on the health of individuals and the NHS.

Given that all these regret Motions are non-fatal, I do not intend to vote on mine, although if the noble Lord, Lord Callanan, votes on his, my colleagues and I will vote against it. We are where we are. What matters now is what the Government do in future. Lives depend on it.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 8:00 pm, 4th July 2016

My Lords, in February 1996 I found myself under the surgeon’s knife, on the slab at St Bartholomew’s Hospital in London, having a tumour on my lung removed, an operation in which I lost half of my lung capacity, making it impossible for me now to walk upstairs or walk any great distance. The reason for all this was that for 25 years I smoked cigarettes.

I only wish that these new inventions that now exist had been available to me. I tried hypnosis on Harley Street. I tried patches of different forms. I could not quite do cold turkey but I tried everything possible to stop smoking, and it was utterly impossible. Indeed, I had my last cigarette the night before they took out the tumour. That is how addicted I was to tobacco.

With that in mind and knowing of my particular difficulties, a gentleman in the north of England wrote me a letter. I want to bring the salient points of his correspondence to the attention of the House, because he manufactures the product in question. He says:

“we … have 3 Shops and 6 employees … we are manufacturing the eliquid that is used in the devices. We have sold thousands of these devices locally”— that is to say, in the north of England—

“and helped so many people make the switch. This has been such a rewarding and positive part of the business for myself and staff who still love helping people to remove a lifelong use of tobacco and improve their health”.

If those listening to my contribution this evening can hear my heavy breathing, that is the result of the operation that took place as a result of smoking all those years ago.

In his letter, that gentleman says that the two millilitre tank size restriction is pointless and restricts future product development. I wonder if the Minister might deal with these matters in the wind-up, if he is able, because some of this is technical. Perhaps he could write to me with a greater explanation.

The manufacturer says that limiting nicotine strength to 20 milligrams per millilitre is counterproductive as it removes the 24 milligram strength which is essential to lots of new switchers. He says the restriction of bottle size to 10 millilitres is pointless as much more hazardous household products are available in much bigger sizes. The popular size for cost-effectiveness and suitability is 30 millilitres, and bottles of 100 millilitres are available too. People can average, he tells me, 10 millilitres per day liquid usage, so a restriction on supply there is again counterproductive.

There will be a restrictive cost in introducing new products to the market. Remember, this man is a manufacturer. He says he will be classed as a producer when importing goods from outside the European Union, with MHRA notification and testing costs implications to bear. Therefore, a lot of suitable and effective products will be removed from the market. He says:

“We are looking at having to find the Cost of Emissions & Toxicology data requested per flavour SKU for our own manufactured liquids. This is estimated at £5,000 each per flavour, of which we have 20, plus Notification & data submissions for any variables of strength would also be required. Our business model could be changed from a manufacturer to a retailer with loss of jobs & future investment stifled if we are unable to bear the cost of this directive’s implementation. We can already see a burgeoning black market which the TPD (Article 20) will encourage. Individuals are now making eliquid at home & selling to whoever they please, with no testing done or age restrictions adhered to or tax paid”.

I would have thought that that is particularly relevant in this debate. He says:

“This is not a tobacco product and should not be classed as such. Doing so is disingenuous & misleading with implications for people’s health. We hope you can recognize the huge potential to save millions of lives & the health revolution this presents … to governments the world over”.

I hope the Government will find a way of re-examining these regulations. Potentially, we could do a lot of damage to a lot of people.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I refer to my interests in the register, perhaps particularly that until last month I was chair of the board of science for the British Medical Association.

The Motion from the noble Lord, Lord Callanan, states that the regulations,

“run counter to advice from the Royal College of Physicians to promote vaping and … that they could force vapers back to smoking”.

Noble Lords should be aware that the Royal College of Physicians does not support the Motion. The Royal College of Physicians, together with ASH, the BMA, Cancer UK, the Royal Society for Public Health and the UK Centre for Tobacco and Alcohol Studies all support the TRPR, including the regulation of e-cigarettes. Yes, medical organisations such as the RCP and the BMA recognise the substantial harm reduction offered by e-cigarettes, but they also conclude that they are not harmless—both identify the need for regulation of e-cigarettes to protect the public.

Noble Lords may have received some very inaccurate briefings, making some assertions that are just not substantiated by the evidence. For example, “nicotine itself is not dangerous”. It is just not true. It is both toxic and addictive. Although vaping using electronic cigarettes is much less harmful than smoking, nicotine is toxic. It is also not helpful if you are going to have surgery. It is not helpful when it is swallowed. It is harmful when it is in contact with the skin, and its addictive properties, for me as a psychiatrist, are particularly of concern.

It is just not true that the limits of 20 milligrams per millilitre will force many vapers to return to smoking. Use of high-strength nicotine is not the norm, and vapers who need more nicotine can get it by vaping more frequently.

It is not true that the regulations mean no advertising. Substantial forms of advertising would still be permitted under the regulations—at point of sale, on billboards, on buses, as inserts in printed media and as product information on websites. Furthermore, the ASH/YouGov results show that more than 90% of smokers are now aware of e-cigarettes, so existing smokers already know about vaping. It is the non-smokers, whom we do not want to become addicted to nicotine, who are not so aware.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Can the noble Baroness explain why it is okay to advertise on the side of a bus but not in a newspaper?

Photo of Baroness Hollins Baroness Hollins Crossbench

I do not have an explanation for the kinds of advertising that have been approved, but some advertising is still permitted. The information that is being put out is that no advertising is allowed.

There are particular concerns for people with serious mental illness, given that about one-third of all tobacco consumption is by people with current mental health problems. I could go into some of the complications of smoking and the relationship between nicotine and some of the psychotropic medications that are used. The Royal College of Psychiatrists states that e-cigarettes,

“seem to be fairly effective in helping smokers stop or control their smoking”,

but it goes on to say:

“Although they seem to be safe, we aren’t yet clear about longer-term health risks”.

Any benefits or disadvantages to public health are not yet well established. This reflects concerns over e-cigarettes’ effectiveness as a smoking cessation aid, the variability of the components of e-cigarette vapour and the absence of the significant health benefit associated with the dual use of e-cigarettes and tobacco cigarettes. The BMA strongly believes that a regulatory framework is essential. I hope that noble Lords will agree with the medical experts who have supported these regulations.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, this has been a very interesting debate so far; it has been good-humoured and full of humour. I was glad to hear the noble Lord, Lord Campbell-Savours, and the noble Baroness, Lady Hollins, talk about the seriousness of this situation.

I and at least two other people whom I see in the Chamber at the moment fought like tigers to make sure that smoking was banned in public places. We did it because all the evidence suggested that it was a terrible scourge on people who were addicted to tobacco and smoking and just could not break the link. From a personal point of view, I come from a family of five, of whom four died prematurely from either smoking or the effects of tobacco. I know of friends who have similarly died and those have not been very pleasant deaths either. I am not saying that vaping will cause that problem, but why do we need it? They say, “Okay, it’s part of a smoking cessation thing”. I really do not believe it; I think that e-cigarettes should be banned totally and more money put into helping smoking cessation programmes. Such programmes have worked, so why not carry on with them?

I should not say this, but I am going to: nobody knows just how manipulative the tobacco industry was during the period when we were fighting it. It was quite disgraceful—I see my fellow in arms, the noble Lord, Lord Faulkner, looking at me and agreeing. I am concerned that, with our having gone through all this and now reducing the amount of money spent on smoking cessation programmes, we will find in another 20 or 30 years—well, I will not be around—that we are doing it all again and people will be smoking. So I just say: please take care.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I am grateful to the noble Baroness for referring to me and the part that a number of us played in making the United Kingdom a leader in attempting to reduce the prevalence of tobacco smoking. As your Lordships will recall, it was this House which passed the amendments to the then Children and Families Bill which led to the UK being the first country in Europe to introduce standardised packaging in 2014. Incidentally, it is my understanding that, if the regulations being debated today were annulled, that legislation on standardised packaging would be badly damaged. I would be grateful if the Minister would comment on that.

As the noble Baroness, Lady Walmsley, said, the regulations are an important part of the way in which the United Kingdom should meet its obligations to the international tobacco treaty, one requirement of which is that we take continuing action to cut smoking prevalence through “comprehensive tobacco control” strategies. The regulations include other important measures such as the prohibition of flavours in cigarettes, including menthol, designed to attract young people to start to smoke. There are new reporting obligations on the tobacco industry, and rules on notifying new tobacco products. These provisions are important and should not be lost by way of some attempt to make the climate easier for vaping.

ASH estimates that electronic cigarettes, the subject of today’s Motions, are used by around 2.8 million adults in Great Britain, with users made up almost entirely of current and ex-smokers. Vapers report using these products to help them cut down or quit altogether. But we must understand that electronic cigarettes are not a magic bullet. There are still some 9 million smokers in our country and our policies need to be broader than just encouraging smokers to switch to vaping. E-cigarettes help people trying to stop, but only when they are supported by stop smoking services—my noble friend Lord Hunt referred to the regrettable cut in budgets for those services.

The noble Baroness, Lady Hollins, mentioned the Royal College of Physicians, whose report said that, although electronic cigarettes are much less harmful than smoking, the health effects of long-term use are not yet known. Given the absence of long-term evidence and the addictiveness of nicotine, it is right and necessary that the regulations strike a cautionary note. It would be helpful for the Government to develop a review process which monitored the developing evidence on electronic cigarettes, published interim conclusions and ensured that public health organisations and users were fully consulted.

The House needs to be aware of the role of the tobacco industry in the nicotine and electronic cigarette market—the noble Baroness, Lady O’Cathain, referred to the activities of the tobacco industry during the passage of the various pieces of legislation through Parliament. Its involvement includes the growing of the tobacco from which nicotine is extracted, and the buying-up of small, independent electronic cigarette manufacturers, as well as the manufacturers of new products. Investment in e-cigarettes by the tobacco industry also offers opportunities for it to claim legitimacy and get a foot in the door for re-engaging with policymakers. I cannot believe that anybody would like to see that happen.

Photo of Viscount Ridley Viscount Ridley Conservative 8:15 pm, 4th July 2016

Surely the tobacco industry looked around the world and saw—like Kodak looking at digital photography coming along—a huge threat to it. Of course it is now trying to muscle in on the act, but this is a good thing. If it starts making electronic cigarettes and becoming more profitable, it will give up on other cigarettes. The reason it got into this industry was because it saw it as a threat.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I would be a little more convinced if the tobacco industry took its responsibilities seriously in countries where the restrictions on smoking were not the same as in the western democracies. The attempt to promote, advertise and sponsor tobacco smoking, particularly in the Far East, is utterly deplorable. The industry views the whole the tobacco and vaping market in a very cynical way, so I am afraid I do not agree with the noble Viscount.

Photo of Viscount Ridley Viscount Ridley Conservative

In South America, vaping is banned altogether. Why? Because the tobacco industry is big and powerful in that part of the world.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

It is very interesting, because in countries which take tobacco cessation seriously, the tobacco industry is switching to vaping, as it knows its traditional market is largely lost. Only last month, in this country, it attempted to undermine public health by trying to overturn the standardised packaging regulations. It cannot be trusted.

Finally, I share my noble friend Lord Hunt’s call for continued funding for stop smoking services, making them accessible and available to all smokers, and for such services to work with electronic cigarettes. It is wrong that these services are being cut back while the regulations are being introduced.

Our aim must be to be as ambitious as the most committed nations are in achieving a tobacco-free society over the next few decades. Over the last 10 years, we have already come a huge distance in changing public attitudes towards smoking, which is now largely seen as a socially unacceptable behaviour. My concern over vaping is that it must not in any way re-normalise the smoking habit.

Photo of Lord Lansley Lord Lansley Conservative

My Lords, from my point of view, my noble friend Lord Callanan chose to talk very selectively about the record of the Conservative Party and the coalition Government in relation to tobacco control. I think he should bear in mind that Conservatives—myself, my noble friend Lord Young of Cookham—worked hard from the Opposition Benches in another place, and succeeded in securing the ban on smoking in public places. When we came into the coalition Government together, we implemented the ban on sales through vending machines and a progressive ban on displays in shops. I also initiated the consultation on standardised packaging, following discussions with Nicola Roxon, who was then Health Minister in Australia, which my successors have taken forward. The product of all that is that we have not only secured continuing reductions in the overall prevalence of smoking—albeit I could wish this rate was faster—but we secured, I think three years ago, recognition that we had among the toughest tobacco-control regimes anywhere in the world. That is right and we should strive to make that the case.

I know it would not be the effect of the Motion in the name of my noble friend Lord Callanan, but were it passed it would indicate your Lordships’ desire to withdraw the regulations if they could. That would be an entirely retrograde step. I will not go through all the ways in which the tobacco products directive helps to strengthen the tobacco control regime other than in relation to e-cigarettes, but it certainly does.

I will isolate one important point which has not yet been mentioned. Much of what we have done in recent years, from my point of view and that of my colleagues—Anne Milton when she was Public Health Minister, and I believe it was among Anna Soubry’s and Jane Ellison’s objectives subsequently—was to focus on reducing the initiation of smoking among young people. We have some 200,000 young people a year initiating smoking. That is what we have to bring down. We want to arrive at the point where the initiation of smoking is minimised. As part of that, we have to look frankly and critically at how electronic cigarettes and vaping can contribute to the reduction of smoking, through access to smoking cessation services. It is absolutely right and I do not have any brief against e-cigarettes in that respect. But, to pick up the final point made by the noble Lord, Lord Faulkner of Worcester, we have to understand what the social and behavioural impacts of large numbers of people continuing to smoke e-cigarettes in the long term look like. I am not sure that promoting it through advertising is necessarily the right way to go.

We should enable smokers to access e-cigarettes and vaping, and do everything we can through the public health budget. Noble Lords will know—I will go into it on another day when more time allows—that my objective in creating a separate public health budget with local authorities was to maximise and protect our preventive activity, not to see it subsequently reduced. I deplore that fact because we were making considerable progress with smoking cessation services, as we should. But we also have to ensure, in addition to the use of e-cigarettes in a way that reduces smoking, that we do not create a new mechanism which might entrench in young people an expectation that they should initiate any kind of smoking, be it through vaping and using e-cigarettes or, even worse, through smoking tobacco. For that reason I agree entirely with many other speakers that it would be undesirable to support my noble friend’s Motion, and I hope that the Minister will agree that we should reject it.

Photo of Lord Rennard Lord Rennard Liberal Democrat

My Lords, the noble Lord, Lord Lansley, is to be greatly congratulated on his tremendous record of achievement in this area, and his advice this evening should be followed very carefully. I must declare my interest as a former director of Action on Smoking and Health. There is a consensus in the debate that using e-cigarettes is much safer than smoking. Together with other clean nicotine products, they have an important role to play in cutting tobacco consumption and improving public health, but I do not agree with the e-cigarette trade body brief which has been circulated. It claims that nicotine is not itself dangerous. As the noble Baroness, Lady Hollins, pointed out so effectively, we have to recognise that nicotine is a known toxin that is poisonous when swallowed and is also addictive.

I do not want to see e-cigarettes subject to more regulation than is necessary, but I do want to see them subject to all the appropriate regulation necessary to support public health objectives. We know that the best chance of success for people seeking to quit smoking is to use smoking cessation services as well as alternative nicotine products in order to help reduce withdrawal symptoms. The regulatory regime required for e-cigarettes and related products must be one that supports their use by smokers trying to quit. It is also right to discourage their use by children and young people who have never smoked. Both these objectives are supported by the regulations being introduced.

I agree with the many noble Lords who have said that we need a public information campaign to reassure smokers that electronic cigarettes are less harmful than normal smoking but, as the Motion in the name of the noble Lord, Lord Hunt, points out, there have been major cuts to the media campaigns to persuade smokers to quit. That is very regrettable because such campaigns can be highly cost-effective in supporting quitting. We know that alternative nicotine products for smokers have most public benefit when they are used together with expert behavioural support. That is one reason why we need to make sure that such products can be available on prescription for people seeking help to quit tobacco products. Our approach to e-cigarettes, therefore, must be to treat them not as an exciting new social drug or as a cash cow for e-cigarette companies, many of which are owned by the tobacco industry, but as a potentially important means of improving public health and reducing the toll of death and disease caused by smoking.

The regulations under discussion are not perfect, but they include important steps in tobacco control that must not be lost and must be part of a tobacco control strategy that must be properly resourced to produce real public health dividends.

Photo of Earl Cathcart Earl Cathcart Conservative

My Lords, I find these regulations bizarre as far as vaping goes. They defy both logic and the evidence. Brussels believes that vaping could provide a gateway to smoking and that these tough new laws are necessary to protect non-smokers, particularly children, from using e-cigarettes. The evidence does not support that view. The Office for National Statistics has stated:

“E-cigarettes are almost exclusively used by smokers and ex-smokers. Almost none of those who had never smoked cigarettes were e-cigarette users”.

Cancer Research UK found that smokers who vape are 60% more likely to quit than those who use willpower or over-the-counter nicotine replacement products. Its statistics demonstrate that vaping is used almost entirely—99%—by current and former smokers, more than 60% of whom say that the sole reason for vaping is to stop using traditional tobacco. Interestingly, only 0.2% of non-smokers aged under 18 have tried vaping and continued use is negligible. So the evidence does not support Brussels’ reasons for these regulations.

Public Health England has stated:

“There is a need to publicise the current best estimate that using EC is around 95% safer than smoking”.

Professor John Britton, of the Royal College of Physicians, says:

“If all the smokers in Britain stopped smoking cigarettes and started smoking e-cigarettes we would save five million deaths in people who are alive today. It’s a massive potential public health prize”.

Noble Lords would think that Brussels would want to encourage vaping but no, that would be too logical. Brussels is banning advertising of e-cigarettes, but this is cack-handed for two reasons. First, if we can advertise nicotine patches, why not e-cigarettes, which are just another way in which to absorb nicotine into the body? As the noble Baroness, Lady Hollins, said, advertising can be done on buses—I did not know that—so why cannot it be done in newspapers, on television and so on? Secondly, given that e-cigarettes are 95% less harmful than tobacco, how are tobacco smokers to find out about vaping and thus improve their health by giving up tobacco? Brussels wants e-cigarettes to carry health warnings but what on earth will they say? Perhaps I may suggest: “If you smoke tobacco, try vaping as it is 95% less risky than tobacco”, but I do not think that that is what Brussels has in mind.

These regulations will also restrict the nicotine strengths of e-cigarettes to 2%. It is this proposal that really irritates me. I started smoking before I was a teenager and built up to 50 cigarettes a day. I tried every trick in the book to kick the habit but nothing seemed to work, as the noble Lord, Lord Campbell-Savours, found. I knew that smoking would kill me and that I would be gathered by the grim reaper before time, but I just could not stop. I could not kick the habit. Then, two summers ago, a taxi driver suggested that I try e-cigarettes. They had worked for him but he insisted that I use the strongest nicotine strength available because if I did not do so, I would not get the necessary nicotine hit and I would be back on fags in no time. I took his advice about using the strongest nicotine—2.4%—and I have not looked back. I have not had a puff of tobacco since two summers ago. E-cigarettes work and help people to stop smoking.

I still use the 2.4% strength, and I find that vaping gives me between 75% and 80% of the satisfaction that tobacco smoking did, but I can live with that. What worries me is that when I run out of my supply of 2.4% nicotine and have to reduce to 2% nicotine, as per these regulations, I will not receive the necessary nicotine hit and I might return to tobacco. There are hundreds of thousands of vapers like me who use nicotine strengths above 2% and, like me, they rely on that higher strength to prevent them returning to tobacco. Also, the higher nicotine strengths are critical in helping smokers with the initial transition from tobacco to vaping. Imposing a limit of 2% would mean that many vapers might return to using tobacco or might buy stronger nicotine illegally on the black market.

These regulations directly affect me, my health and my well-being. I could not understand why Brussels wanted to penalise the vaping industry and vaping users but after hearing my noble friend Lord Callanan’s contribution on the pharmaceutical and tobacco industry having got at Brussels, all is now clear. I am sorry that we are considering only a regret Motion. If I could vote against these regulations, I would.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 8:30 pm, 4th July 2016

My Lords, first I congratulate my noble friend Lord Callanan on the very excellent case that he put. I shall not proceed by repeating any of the arguments. I have looked at the regulations, but some people who have spoken in the debate clearly have not.

If someone wanted to sabotage a product, add to the costs of producing that product, limit the scope for competition with that product, and drive out of business small producers, it is hard to see how a more effective job could be done than in respect of the regulations that apply to electronic cigarettes. As far as noble Lords who argued that this is all a plot by the tobacco companies is concerned, one way of ensuring that all of this ends up in the hands of large businesses will be by pursuing exactly these regulations—by limiting choice and, of course, by creating a black market, which will be accessed through the internet, as we have seen occur over and over again in respect of medicinal products.

There seems to be no logic in the regulations. We have already touched on the point on why some advertising is allowed but not others. I find it extraordinary that a Government should want to ban advertising when the evidence that we had from ASH—the noble Lord referred to that—states:

“Perceptions of harm from electronic cigarettes have grown with only 15% of the public accurately believing in 2016 that electronic cigarettes are a lot less harmful than smoking”.

If most people do not realise the benefits of it, what on earth is the logic of preventing people advertising it? How does the noble Baroness, Lady Walmsley, explain that she wants a public information campaign? How can we have a public information campaign without advertising the benefits of electronic cigarettes? Therefore, why is she against the advertising of electronic cigarettes? There is no logic in that.

I hope that noble Lords do not mind me mentioning the fact that my son is 37 years old. He has smoked cigarettes since he was 16, to the best of my knowledge, and probably earlier. He smoked very heavily, but three Christmases ago—I should declare an interest—I bought him an electronic cigarette. As a result, he has reduced the levels of nicotine and of all the things that we have tried—blackmail, bullying, nicotine patches, and everything under the sun—it has worked. The figures show that one-third of the 2.8 million adults who are vaping in this country are ex-smokers. The arguments being put for the public health benefits are overwhelming.

It pains me to say this, but this is a classic example of gold-plating of European regulations by the UK health department. The point is that, because the regulations are gold-plated, there is nothing we can do about it. They are EU regulations and we are required to implement them. I wonder what on earth was going on in the Department of Health that made it do this.

When we see something absurd happening, we should ask, “Cui bono?”. Who benefits from this? Certainly the Government benefit from it because people who are continuing to smoke cigarettes will pay a very considerable amount in tax to the Exchequer. I do not know how much a packet of cigarettes costs, as I have never smoked my life, but I am told it is about £9 for 20 cigarettes. People who start vaping will not spend that in a week. For those families on low incomes—and many of the people who smoke heavily are among the lowest income families—will benefit from something which enables them to deal with the addiction that they have to nicotine and remove themselves from it. Who benefits from this? Certainly not the people who are among the poorest in our country who are smokers. The Exchequer benefits—the Treasury benefits—if people are still smoking cigarettes because it gets its tax on the cigarettes which is very considerable. Of course, the pharmaceutical companies, which sell the nicotine patches, benefit. The tobacco companies benefit because people are not switching away.

So what on earth are the Government doing, promoting the interests of the tobacco companies and the large pharmaceuticals—because that is the effect of this? The detail in the regulations is unbelievable. They even spell out which typeface—Helvetica—appears on the warnings, and whether it should be bold or italic. That is North Korean stuff: it is utterly absurd regulation. We may laugh at it, but, as the noble Lord, Lord Campbell-Savours, pointed out, it means that small businesses up and down the country will have to comply with these regulations, work out what they mean, change all their literature and everything else, and, as a result, be driven out of business.

We are in a bit of a quandary here, because there is much in these regulations that is quite desirable. When we have left the European Union, we will be in a position where we can hold our Ministers to account, hold votes and actually make these things happen. I had not realised this very clever operation by the Department of Health. This is what you do: you have some absurd regulations, which you know you are not going to get through the House of Commons. So you persuade Brussels to include them in an EU directive; and heigh-ho, they have to sail through both Houses, because there is nothing we can do. We all take part in this pantomime, where we explain all the reasons why they should be changed, knowing full well that there is very little we can do about it until we leave the European Union.

So I congratulate my noble friend on his efforts and hope that, when the Government are free to do so, they will rethink these absurd regulations, which will undoubtedly cost lives. They are a classic example of how big business is able to use Brussels, together with lobbying organisations, to the disadvantage—and, in this case, life-threatening disadvantage—of the citizens of this country.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat Lords Spokesperson (Health)

May I correct something that the noble Lord, Lord Forsyth, said? He suggested that there was an inconsistency in my remarks. I point out to him that my regret Motion regrets the advertising ban. If there were no advertising ban, it would be perfectly possible to have a public information campaign.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

My Lords, after the excursion by the noble Lord, Lord Forsyth, into Europe bashing, may I bring the House back to the subject in hand, which is these regulations?

The noble Lord, Lord Rennard, hit the nail on the head. Why are the major tobacco companies all piling into these products and their manufacture, distribution and promotion globally? It is not because, in a spirit of public protection, they want to see smokers take up these products rather than the main part of their activities, which will continue to be the pushing of tobacco globally.

We have got to ask ourselves why there is a need for regulation in this area. The reality is that electronic cigarettes are effective in reducing, in the case of smokers, their reliance on tobacco, but this needs to be associated with a wider tobacco control strategy and some good, targeted, mass promotion—not of individual products in the vaping field but with the concept that, if you are a smoker, vaping may be one of the things, among others, that can help you. That must include psychological support as well as simply a change of product. I hope, too, that the Government will ponder on further increases in the price of tobacco; at the end of the day, that is the most effective way of reducing demand. Perhaps we can hear from the Minister what the Government are planning to do to ensure that there is public promotion of vaping as an alternative for smokers, access to good-quality, evidence-based stop smoking services and changes in costs.

We should not delude ourselves that tobacco manufacturers are getting into vaping products simply to allow people who are smoking currently to reduce their risk. They are getting into it because that, in their view, is the double whammy: an alternative product that can run alongside their very damaging products, which will continue, and a little bit of what in the environment movement used to be called “greenwashing”—I do not know what one would call it in the public health movement—in order to make their image more acceptable publicly. Therefore, I would not support the amendment of the noble Lord, Lord Callanan.

Photo of Viscount Ridley Viscount Ridley Conservative 8:45 pm, 4th July 2016

My Lords, I will be extremely brief, because we need to press on to what the Minister will say. However, it is very important to point out that this is smack in the tradition of harm reduction, which was pioneered in this country with needle exchanges for HIV addicts. We did not go round saying, “That’s a bad policy because needles are dangerous things”. We said, “Let’s look at the relative risks”. We now know that there is a motorway out of smoking by vaping, and on the other carriageway there are virtually no cars at all. We have heard the data from my noble friend Lord Cathcart.

One final very quick suggestion is: if we want to get public information out there, why do we not insist that cigarette packets, which already carry a warning label, carry a label which says, “Have you tried vaping instead? There is very good evidence that it is much safer”? That would be factual and targeted at smokers. It would be beneficial, save lives and cost nothing.

Photo of Lord Prior of Brampton Lord Prior of Brampton The Parliamentary Under-Secretary of State, Department of Health

My Lords, before this debate started I had feared that it would be a bit like Groundhog Day in relation to what happened in the Grand Committee Room earlier. However, it has been a fascinating and excellent debate. I thank the noble Lords, Lord Callanan and Lord Hunt, and the noble Baroness, Lady Walmsley, for tabling their various Motions and amendments. This has been a very good debate.

I start from the premise that all my instincts are always against regulation. In my view, there is normally a presumption against regulation. I should also make it absolutely clear that there is no doubt that vaping is far better for you than smoking. If, as a result of these regulations, more people were to carry on smoking, we would indeed have shot ourselves in the foot. To pick up the analogy that my noble friend Lord Ridley used about needle exchanges, the point is that they should at least be clean needles. I agree with his argument but we need some regulation to ensure that vaping is not abused, if I can put it that way.

I wish to make a small number of important points which have been raised by noble Lords. First, we have fought long and hard to denormalise smoking behaviours, and Members of this House have been at the forefront of that. It is right to take a precautionary approach to managing any risk that e-cigarettes renormalise smoking behaviours, particularly by restricting children’s exposure to e-cigarette marketing and imagery. Glamorising these products, with adverts reminiscent of those from the tobacco industry many years ago, can only make them more attractive to children. Recent research by the Cambridge behaviour research unit also suggests that exposure to e-cigarette adverts influences children’s perception of smoking tobacco. It reduces their belief in the harm of occasional smoking. This has the potential to undermine some of the great progress we have made over the last six decades in controlling the smoking of tobacco.

I know that there are calls for a return to self-regulation, but just last week we saw the Advertising Standards Authority rule on a glamorous advert. I do not think that props are allowed in this House, but this is a four-page advert on the front and back of the Evening Standard. On the front, there is a very attractive young woman looking out over London while smoking a cigarette. On the back, there is a James Bond lookalike jumping out of a helicopter. That is not aimed at people who are smoking but at young people who might then think about smoking. Figures have been put about showing that there is no evidence that young people are influenced by this kind of advertising. However, that is not the case everywhere. The US is seeing an upward trend in children who have never smoked cigarettes using e-cigarettes, and data from Poland show that 30% of children surveyed use e-cigarettes. The Government have therefore taken a precautionary approach to any possible risk of the renormalisation of smoking behaviours.

Some 96% of smokers are already aware of e-cigarettes, so I am clear that promotion is not about raising consumer awareness, which already accounts for 96% of that market. While businesses’ ability to communicate about their products may have been curtailed in the interests of protecting children, they have not been banned outright. The regulations will not prohibit information being provided to customers either online or in physical retail outlets. Nor will they ban independent reviews of these products or discussion in e-forums. Some advertising will be allowed, such as point-of-sale, billboards and leaflets. Essentially, these are the information routes that were used when e-cigarette sales and use were growing the fastest. My noble friend made a point about billboards, buses and the like. The reason for the distinction between outlets is to try to minimise the impact on young people. That is what lies behind the differentiation between advertising media.

Secondly, the regulations provide minimum product standards and reporting of ingredients and emissions. This should reassure smokers who are looking to quit that e-cigarettes are safe and high quality, and give the Government and health professionals such as GPs confidence in recommending them to smokers. The product standards in the regulations are a result of balancing user needs and risk of accidental exposure to children. Of the reported poisoning incidents, running at some 250 a year, one-third relate to young children under the age of four. The regulations require child-resistant packaging, and the 20 milligrams per millilitre limit for nicotine, combined with the size restrictions on tanks, ensures a maximum exposure of 40 milligrams of nicotine, which is below the level of 50 milligrams that the European Chemical Agency assesses would cause acute toxic effects for toddlers. ASH recently published data indicating that only 9% of vapers report using e-liquid containing 19 milligrams per millilitre or more of nicotine. I know that my noble friend Lord Cathcart is a heavy user of this particular substance, but he is among only 9%. Moreover, the changes in technology will make it increasingly possible for users to get high levels of nicotine uptake for any given strength. Producers can of course get a higher strength approved by the MHRA.

My third main argument in favour of these regulations is that the UK’s approach to the regulation of e-cigarettes has, and will remain, pragmatic and evidence based. We have one of the most liberal approaches to e-cigarette regulation in the world. We have implemented domestic age-of-sale legislation, preventing sale to under-18s, but we have not banned flavours in e-liquids or cross-border distance sales, nor have we restricted vaping in public places. I remind noble Lords that the latter two measures have been introduced in around two-thirds of all other EU member states and are also common in other parts of the world. I am not sure whether the noble Lord, Lord Forsyth, is right when he talks about gold-plating in this context.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am contemplating the Minister’s argument about children being exposed to dangerous quantities of nicotine—which obviously one wants to avoid—and how there is therefore a need to reduce the packaging. Is he planning to do the same for other household products such as domestic bleach and dishwasher liquid? We cannot approach that kind of problem through regulation: surely it is about encouraging parents to behave responsibly.

Photo of Lord Prior of Brampton Lord Prior of Brampton The Parliamentary Under-Secretary of State, Department of Health

There are of course many products which do have tamper-proof packaging and we cannot debate all the ones the noble Lord mentioned. It seems to me entirely reasonable that this particular product should be tamper proof. If a child were to swallow nicotine in these kinds of volumes it would have a very serious impact. It is entirely reasonable to have tamper-proof packaging.

The Government have asked the MHRA, local authorities and others involved in the enforcement of these regulations to develop a compliance regime together with the businesses which are currently in this industry. We will take a pragmatic approach to implementing the new notification system. Notification fees are low—£150 per product and £60 annually as a top-up—and are set to recover costs only. The MHRA has also developed guidance that minimises the burden on business.

E-cigarettes are not harmless. Nicotine is both toxic and addictive and there are unanswered questions about the effects of longer-term use. It is better to vape than to smoke but it is far better to do neither. These regulations reduce the risk of harm to children and protect against the renormalisation of tobacco use. They provide assurance on relative safety for users and legal certainty for businesses that wish to sell these products across the EU. I also underline that the regulations have the full support of the four nations of the UK, as well as many of those in the health community that have been involved in tobacco reduction, including ASH, Cancer Research UK and the British Medical Association. The Royal College of Physicians agrees in its report on the need for regulation of e-cigarettes to protect the public, and states that although e-cigarettes are estimated to be in the order of 95% less harmful than smoked tobacco, they are not harmless.

Moving forward, the Government are committed to a full review of the functioning of the regulations, including—

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Is there a danger that a black market will develop?

Photo of Lord Prior of Brampton Lord Prior of Brampton The Parliamentary Under-Secretary of State, Department of Health

It is possible. There is always a possibility when there is a regulation that a black market will develop, and for the very high-strength products, which had to be regulated by the MHRA—the ones above 20 milligrams—there is a risk that there will be a black market. I think I recall that the noble Lord said earlier that a black market had already developed in this product. We are trying to bring some minimum quality standards, at least, into this market so that people who are thinking of moving from smoking to using e-cigarettes can have confidence that the product they use is regulated to a minimum standard.

I remind noble Lords that new and important tobacco control measures are also contained in these regulations. I have not talked about them specifically because they are slightly off the main point of this debate. The regulations will be reviewed within five years of entering into force. I also commit, here and now, to commissioning Public Health England to update its evidence report on e-cigarettes annually until the end of this Parliament and to include within its quit-smoking campaigns consistent messaging about the safety of e-cigarettes.

Clearly, there are strong arguments on both sides of the debate. As I said, I am not an instinctive regulator by any means but I feel that these regulations are proportionate. They do not go over the top, are entirely sensible and are backed by the RCP and all the major charities in this area. I hope that my noble friend Lord Callanan will not wish to push this to a vote, but of course that is entirely his decision.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I thank the Minister for his wind-up, which I think was very fair. I agree with him that this has been an excellent debate and various views have been put forward. I understand why some noble Lords have concerns about e-cigarettes, particularly in relation to young people. I understand that there are still some uncertainties. I accept that there is a need for some regulation in relation to e-cigarettes.

The Royal College of Physicians produced an excellent and dispassionate report but in the end it concluded that, while not absolutely safe,

“the hazard to health arising from long-term vapour inhalation from the e-cigarettes available today is unlikely to exceed 5% of the harm from smoking tobacco”.

That is a pretty powerful statistic. The royal college supports the regulations—I understand that. We have been told by the noble Baroness, Lady O’Cathain, that 2.8 million people currently use e-cigarettes. We know that often, it is the poorest people in society whom many of the traditional approaches to giving up smoking have not touched. Equally, we know that there is a problem with smokers who think that e-cigarettes may be much more harmful than they actually are.

The noble Lord, Lord Prior, rightly said that smokers are aware of e-cigarettes: I take that point. However, there is this worrying statistic that many smokers feel that e-cigarettes are very harmful—almost as harmful as smoking cigarettes. That worries me. I worry that the regulations may make that worse. This is where the absence of cohesive, strongly financed public health programmes comes in. That is why I believe that my amendment finds a delicate way through the morass that we have been debating today and why I wish to test the opinion of the House.

Ayes 57, Noes 91.

Division number 1

See full list of votes (From The Public Whip)

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Amendment disagreed.

Photo of Lord Callanan Lord Callanan Conservative 9:11 pm, 4th July 2016

My Lords, first I thank all noble Lords who have contributed to the debate this evening. It has been a fascinating and instructive debate. If nothing else, it has given me the opportunity to go into the Content Lobby for the first time in my parliamentary career in this House. I am normally quite a loyal government Back-Bencher. It has been an interesting debate. I do not agree with many of the conclusions given by the Minister that these regulations are proportionate and not over the top. They are totally disproportionate and totally over the top.

Let me clear up a couple of confusions that have arisen. First, I have no problem with the vast majority of these regulations. All of the regulations relating to the regulation of normal tobacco products I completely support. It is only the sections on e-cigarettes which I think are wrong. The clue is in the name. E-cigarettes are not tobacco products. They should not be in this directive in the first place. I argued this when it was originally proposed in Brussels. Of course, given the nature of regulations, it is not possible to amend them just to take out the electronic cigarette part without regretting the whole thing. In response to people who have made points about the main parts of the regulations, I agree. I support them, and as far as I know all of my colleagues who supported me also support those bits of the regulations.

Secondly, a number of arguments have been made about the big tobacco companies. I am entirely convinced that the big tobacco companies would support these regulations as they are for the simple reason that at the moment the e-cigarette vaping market is dominated by small and medium-sized enterprises. The costs of regulation that are going to be imposed by this directive are considerable. The big pharmaceutical companies and the big tobacco companies will be able to bear the costs of that regulation. They will buy up, as they are indeed starting to do, a lot of the little companies, and they will be able to bear the costs of regulation.

It was a great revelation to me when I first arrived in the European Parliament. I had naively assumed that business would be opposed to regulation. Actually, most big business thinks that regulation is a great thing. The chairman of a big pharmaceutical company once told me that it enables it to get rid of what he called “free riders”, in other words, small companies that were taking his market share, but did not have big corporate compliance departments and big lobbying and PR operations. I am entirely convinced that approving this regulation is to the benefit of big pharmaceutical and tobacco companies. Given all that, and given the indications from many Members of this House that they will not support the remainder of my Motion, I beg leave to withdraw it.

Motion withdrawn.