Lord Udny-Lister:

Moved by Lord Udny-Lister

11: Clause 10, page 5, line 15, after “vaping product” insert “heated tobacco product”Member’s explanatory statementThis Amendment seeks to ensure that the new definition of heated tobacco product is included in the age of sale and other regulations covering vapes and nicotine products.

My Lords, the purpose of my Amendment to Clause 10 is simply to ensure that heated tobacco products are explicitly addressed within the age of sale framework. I am strongly of the view that, when Parliament seeks to regulate a product, it must define it clearly. As other noble Lords have repeatedly mentioned, there is still a high level of inconsistency and ambiguity in this Bill, which renders it fundamentally flawed unless many of these amendments are supported over the next few days. Both retailers and trading standards officers require certainty when it comes to product classification, and a clear statutory definition would avoid later confusion, reduce the overall risk of litigation and strengthen accountability, which must remain the overriding purpose of this Bill if it is to stand any chance of delivering what I believe is the Government’s intended result. In the interest of making the Bill workable on the ground, I hope that this minor change will have your Lordships’ support.

My amendment to Clause 11 mirrors the approach that I have taken concerning Clause 10. I am again asking for consistency so that, where vaping products are referenced, heated tobacco products are dealt with explicitly. We cannot pass legislation through this House where there is ambiguity. I fear that, if these points are ignored, the Bill will lack the clarity required to make it practically enforceable. As such, we in this House will be placing a grave, unfair burden upon those in enforcement. Furthermore, we will be creating unfairness for compliant businesses, which comes with the not inconceivable risk of pushing retailers towards the temptation of rogue and illicit trading. We need to legislate coherently across product categories rather than allow voids to undermine the objectives that the Government are seeking to achieve.

I will speak now to Amendments 87, 89, 90, 101, 113, 189 and 190 in my name. I wish to ensure that the phrase “or consumed in any other way” is removed and that a clear definition of heated tobacco is inserted. It is important to note that heated tobacco does not burn tobacco; it heats it. This is important as evidence indicates lower toxicant exposure compared with that of most cigarettes. If future adult access is to be prohibited, this decision must be based on proper assessment and evidence, which is lacking at this time. The purpose of Amendments 189 and 190 specifically is simply to insert some precision into the Bill. These amendments replace “consumed” with “smoked” and remove reference to heated tobacco devices. I put it to your Lordships that “consumed” is excessively broad. Through slightly better drafting, we can protect businesses, enable better enforcement and protect the courts from uncertainty. I beg to move.

My Lords, I commend the noble Lord, Lord Udny-Lister, for helping to differentiate products and for having some precision in the way we discuss these issues. I have been concerned throughout about a one-size-fits-all approach. I do not think it helps anyone. It certainly does not help in relation to health, let alone retailers and so on, as has been described.

Heated tobacco should not be conflated with vapes, but it should also not be conflated with smoking cigarettes or tobacco in that sense. As the noble Lord explained, heated tobacco products are heated, not combusted. That means that, although they might have some degree of harm, there is a body of evidence that shows that there is a huge reduction in harmful products from heating tobacco rather than smoking tobacco. This matters to me because a lot of people use heated tobacco as a smoking cessation tool, as a form of giving up smoking.

When I have raised issues concerning the evidence on heated tobacco, I have been told that the problem with that evidence is that it is based on research produced by the tobacco industry rather than by independent researchers. I point out that, none the less, it is scientific evidence and can be tested as such, whoever pays for it. But if there is some concern about the evidence, I encourage the Government to consider how they can fund research into the very different types of product we are talking about, rather than simply dismissing any evidence they do not like the look of because of who funds it. We need to have a sense of proportion and should not treat all products the same. As I say, I therefore reject the one-size-fits-all approach. We will have much better legislation if these things are clarified on the face of the Bill and we all know what we are talking about, and do not just lump things under the single heading of “harmful and dangerous”.

My Lords, this group of amendments relates to heated tobacco and its inclusion in the Bill, and in particular the rising age of sale. It is essential that the measures in the Bill apply to all tobacco products without exception. We have learned repeatedly that, where legislation leaves loopholes, the tobacco industry exploits them. We saw this with cigarillos—products defined as cigars but designed to resemble cigarettes, evading plain packaging with the flavour and pack size rules, as we discussed in Committee.

The Bill is a chance for truly comprehensive legislation. I am particularly concerned about Amendment 89, which would remove the phrase

“or consumed in any other way”.

That would leave the door wide open for further innovation from the industry to continue selling tobacco products here in the UK. The regulatory powers in the Bill must be broadly defined, including powers over packaging and presentation. This is not overreach; it is future-proofing based upon our past experience. Without it, we invite industry innovation designed solely to sidestep regulation and undermine public health.

Heated tobacco products should not be conflated with vapes. Vapes can be and are recommended for smoking cessation, following evidence, including a Cochrane review, showing that they are a helpful tool for smokers. Heated tobacco products do not meet that standard and are not recommended by NICE. They are used by fewer than 1% of people in the UK, yet awareness of them is rising, particularly among young people. Alarmingly, nearly one-quarter of 11 to 17 year-olds are now aware of these products, and that may well be the result of their marketing in supermarkets and online.

I therefore welcome government Amendments 217, 218 and 219, which ensure that the comprehensive definition of a tobacco product applies from the moment the Bill comes into force. That will help to address the ongoing and unacceptable advertising of heated tobacco products in supermarkets and elsewhere. If we are indeed serious about creating a smoke-free generation, all tobacco products, including heated tobacco, must be included without ambiguity or exception.

My Lords, my noble friend has tabled a number of amendments on heated tobacco products. Although there may be some concern about what is behind them, they raise important questions that I am afraid the Government have yet to answer with any real precision.

As I noted in Committee, there appears to be some evidence that individuals who switched from conventional cigarettes to heated tobacco products show lower levels of exposure to harmful chemicals than those who continue smoking. I am just comparing them to cigarettes, not to vapes. To be clear, I do not suggest that this settles the question of harm—these are relatively new products, and the long-term evidence base is still developing—but it means that the Government cannot simply treat heated tobacco products as interchangeable with conventional cigarettes without explaining why they refuse to consider their relative harm compared to cigarettes. I am talking about not absolute harm, but relative harm.

There is also the practical question of where these products may be used. The position on indoor and outdoor spaces remains, as far as I can tell, unclear. Heated tobacco does not produce combustion or sidestream smoke in the conventional sense, and yet it is not obvious from the Bill how the Government intend to address that distinction—if they intend to address it at all.

More fundamentally, can the Minister explain what specific evidence underpins the decision to include heated tobacco in the generational ban? I am sure all noble Lords accept that current evidence shows that vapes are relatively safer than smoking. It may be that vapes are relatively safer than heated tobacco, but as yet, we have not seen definitive evidence. Unfortunately, as noble Lords have said, much of the research on heated tobacco is funded by the tobacco industry. I can understand the concern there. I hope the Minister will correct me if I am wrong, but there is no definitive independent research on the relative harms of heated tobacco. If there is definitive research, can the Minister write to noble Lords with links to the relevant academic papers? I think we saw one link to a meta study that was not very good, but there has been no meaningful in-depth research.

This reminds me of a conversation I had with a friend, who told me that when they tried vapes to quit smoking, it unfortunately did not do the job for them. When they went back to their doctor, he said that he was not supposed to do this, but he suggested heated tobacco as a relatively less harmful alternative. While he hoped his patient might have switched from cigarettes to vapes, since this had not happened—we do not live in a perfect world—he preferred his patient to use heated tobacco to going back to cigarettes. Once again, this was a practical approach based on relative harms.

I completely understand the concern that, if we overpromote heated tobacco, we might find that smokers switch to it rather than vapes. Given that the policy rationale rests substantially on reducing harm—we should be looking at absolute harm and relative harm— I would welcome clarity on whether the Government are satisfied that the case for treating heated tobacco like cigarettes is proven. It will be interesting to see that distinction between heated tobacco and cigarettes. Is the science still sufficiently uncertain to warrant a more cautious approach?

My Lords, I appreciate the contributions made in this debate. I will start by addressing government Amendments 217, 218 and 219, tabled in my name; I am grateful to the noble Baroness, Lady Northover, for her support.

The Bill updates the definition of a tobacco product in legislation relating to promotion and advertising, and in Scottish legislation, to

“a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked, chewed or consumed in any other way”.

Those last few words,

“consumed in any other way”,

are the key ones. What does this definition do? It ensures that all forms of tobacco products, regardless of how they are consumed, are captured by this legislation, including—this is important to the points raised by noble Lords—any future novel tobacco products.

These amendments bring forward the commencement of this updated definition to the day of Royal Assent, rather than two months after Royal Assent. That is because the Government’s view is that all tobacco products currently on the market are already captured in the current definition, so it is appropriate for this future-proofing Amendment to come into force at Royal Assent because there is no change to the law for which notice would be required.

Amendments tabled by the noble Lord, Lord Udny-Lister, seek to redefine how heated tobacco products are captured within the Bill so that they are no longer treated in the same way as other tobacco products. These amendments also seek to prevent provisions being extended to heated tobacco devices in the future.

On the points raised by the noble Lord, as well as by the noble Baroness, Lady Fox, and the noble Lord, Lord Kamall, the Bill deliberately defines tobacco products expansively and includes heated tobacco. The reason for that is that there is no safe level of tobacco consumption and all forms of tobacco are harmful.

On the points raised about evidence, there is evidence of toxicity from heated tobacco in laboratory studies; the aerosol generated by heated tobacco devices contains carcinogenic compounds. Unlike vapes, there is limited evidence that heated tobacco can support smoking cessation, despite what is claimed by the tobacco industry. On the matters of evidence raised by the noble Lord, Lord Kamall, and the noble Baroness, Lady Fox, as has been set out by all four UK Chief Medical Officers in a technical note to noble Lords, any suggestion that heated tobacco products are safe or should be promoted as quit aids in some way is entirely misleading.

I say to the noble Lord, Lord Kamall, that, through the National Institute for Health and Care Research, we are funding high-quality research into tobacco products. Between 2020 and 2025, £25 million was invested in a NIHR research programme to research tobacco control, and that will help us develop the evidence base. Exempting heated tobacco products from the smoke-free generation policy and other provisions in the Bill would simply allow the tobacco industry to continue to find a way to addict future generations to harmful and addictive products. The Bill is completely geared to go the other way.

The noble Lord, Lord Kamall, asked about heated-tobacco-free places. We will return to the whole issue of tobacco-free places when we come to group 16, so I am sure that that will be debated then. I hope that I have been able to clarify the Government’s position for noble Lords, and that the noble Lord, Lord Udny-Lister, will feel able to withdraw his amendment.

Before the Minister sits down, she talked about research that was done on tobacco products between 2020 and 2025. In that time, was any specific research done on heated tobacco as part of tobacco products?

The specific definition is “tobacco control research”, so it would be strange if it did not include what we know about already, which includes heated tobacco. I will be glad to confirm that to the noble Lord in writing.

I thank the Minister for her reassurances, although I am afraid that I do not agree with her. However, I accept that we have taken this as far as we can. I beg leave to withdraw the Amendment.

Amendment 11 withdrawn.