Clause 61 - Retail packaging of vaping products and nicotine products

Tobacco and Vapes Bill – in a Public Bill Committee at 10:15 am on 14 May 2024.

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Photo of Kirsten Oswald Kirsten Oswald Shadow SNP Spokesperson (Women), Shadow SNP Spokesperson (Equalities) 10:15, 14 May 2024

I beg to move amendment 26, in clause 61, page 33, line 19, at end insert—

“(l) the use of fonts in any alphanumeric markings on the packaging.”

This amendment would allow the Secretary of State to make regulations about the font used on the retail packaging of vaping products and nicotine products.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following:

Amendment 39, in clause 61, page 33, line 37, at end insert—

“(7) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

Clause stand part.

Amendment 40, in clause 62, page 34, line 27, at end insert—

“(7) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

Amendment 21, in clause 63, page 34, line 36, leave out from “products” in the second place it occurs to the end of line 37 and insert—

“(g) any other features of vaping products or nicotine products.”

This amendment allows for changes to other features of vaping or nicotine products as set out in the TRPR 2016 section 36 which do not distinguish between different brands such as capacity of refills, cartridges or pods, and nicotine delivery.

Amendment 41, in clause 63, page 35, line 20, at end insert—

“(6) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

Clause 63 stand part.

Amendment 42, in clause 71, page 39, line 29, at end insert—

“(6) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

Amendment 43, in clause 72, page 39, line 38, at end insert—

“(4) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

Amendment 44, in clause 73, page 40, line 16, at end insert—

“(5) Before making regulations under this section the Secretary of State must—

(a) consider whether there are any persons who appear to be representative of the interests of those likely to have an interest in the regulations, and

(b) if there are, to take reasonable steps to consult them.”

New clause 10—Power to change product requirements of vaping and nicotine products—

“(1) The Secretary of State may by regulations amend regulations 36 and 38 of the Tobacco and Related Products Regulations 2016.

(2) Regulations under this section—

(a) shall be made by statutory instrument; and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

This new clause enables the Secretary of State to amend sections 36 and 38 of the Tobacco and Related Products Regulations 2016 related to general product requirements of vaping and nicotine products.

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

I am happy to speak to amendment 26, which was tabled by the hon. Member for Sleaford and North Hykeham, as a signatory to the amendment. The amendment seeks to deal with the use of fonts in any alphanumeric markings on the packaging. That would allow the Secretary of State to make regulations about the font used on the retail packaging of vaping and nicotine products.

The logic behind the amendment is that it would allow the Secretary of State to preclude vape companies from getting round the ugly packaging requirements by choosing an attractive or distinguishable font. The amendment provides helpful clarity. I appreciate that there is probably an ability to make provision on fonts in the Bill, but I am not sure that “probably” is good enough. The Committee has spoken about the need to try and stay ahead of the game when it comes to the companies, which are fleet of foot when trying to find ways of stopping us preventing the harms we are seeking to prevent.

Photo of Mary Glindon Mary Glindon Opposition Whip (Commons)

I want to speak to my amendments to clauses 61, 62 and 63, which are all in a similar vein. My amendments would bind any Government to considering whether there are people who have an interest in future regulations on vaping packaging, and if so, to consult them. The point of the amendments is consultation, which would include all stakeholders with an interest—not just the industry but those who use vaping products to help them stop smoking. While the Government and the Minister have committed to that for the first round of regulation, there is no requirement for a future Government to do so.

My amendments 62 and 63 would require the Government to consult before implementing regulations. I will not press them to a Division, but I hope that the Minister, as she said she would last week, will consider and take away everything that is being suggested. I make the plea on behalf of the industry. The vaping industry takes very seriously the notion that children should not be allowed to vape, and that every precaution should be taken to ensure that children do not vape and that vapes are used as a tool to stop smoking. I say that as a member of the responsible vaping all-party group. I have followed this for many years, and am an advocate of vaping as a tool to stop smoking. I repeat that I will not press my amendments to a vote.

Photo of Bob Blackman Bob Blackman Conservative, Harrow East 10:30, 14 May 2024

I rise to speak to amendment 21, which I tabled with other hon. Members. It seeks to regulate vaping product standards and is vital to the Bill. The amendment allows for changes to other features of vaping or nicotine products, as set out in regulation 36 of the Tobacco and Related Products Regulations 2016, which at the moment do not distinguish between the differences among brands, such as capacity of refills, cartridges or pods, and nicotine delivery. My amendment would ensure that the Secretary of State has powers to revise generic product requirements, as set out in regulation 36 of the TRPR.

Importantly, my measure would be permissive, rather than a requirement. The wording of clause 63(1)(f) as drafted limits revision to features that “distinguish between different brands”, and could potentially exclude revision to generic standards such as capacity of refills, cartridges and pods, and nicotine delivery. The standards in the TRPR were developed for e-cigarettes only in the EU tobacco products directive back in 2013. Vaping and nicotine products have evolved considerably over the past 11 years, and they will continue to evolve, so it is vital that the Secretary of State has powers to revise the standards.

The change I propose is not to the intent of the clause; it is merely a clarification to ensure that there is no risk of limiting the powers of the Secretary of State only to characteristics that are brand-specific. Will the Minister, in her response, either accept amendment 21 or to come back with further consequential amendments, which will ensure that the Secretary of State has the powers that we know will be needed, because the industry will evolve and change its products. The industry will look at the Bill when it becomes an Act, and the risk is that we will have to come back and look at this again.

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

New clause 10 would provide powers to the Secretary of State to amend regulations 36 and 38 of the Tobacco and Related Products Regulations 2016. As has been remarked several times in our debates, one of the biggest risks to the success of this legislation in achieving a smoke-free future and tackling youth vaping is that, if the Bill is not tightly worded, vexatious tobacco companies could find loopholes and workarounds. We have been discussing those with the failure of the flavours ban; the same goes for vapes.

To reiterate, Labour is ready to come down like a ton of bricks on any company that would attempt to profit at the expense of our children’s health. We know that the business model of tobacco and, let us face it, of vape companies is addiction. That is not to say that vapes are anywhere near as destructive and harmful as tobacco, but they are not good for us, and if we do not smoke, we should not vape.

The clauses on product requirements provide powers to the Secretary of State to create regulations for the retail packaging of vaping and nicotine products, as well as other product requirements, and they are, at face value, welcome. For a long time, we have been saying that we need to come down hard on those companies blatantly marketing nicotine addiction to children. I have seen egregious examples of that. It is not just the bright colours and pick-and-mix flavours. We heard in evidence from the NASUWT about vapes designed to look like USB sticks or highlighter pens so that they can easily fool teachers in schools. E-liquids available on the market called Candy King look like sherbet dip. I was sent one example from trading standards that really turned my stomach: a vape it seized that was shaped like a sippy cup. That is why we have long been calling for the standardisation of vape product requirements, to remove the risk that products can be designed to appeal to children. At a minimum, the regulations should allow for bright colouring and child-appealing imagery and product names to be removed.

The one thing that companies have shown time and again, however, is that they are agile. They are able to innovate faster than Government have been able to keep up, often to harmful ends. My concern with clauses 61 and 63, which new clause 10 seeks to address, is that the powers provided are limited. In clause 61(3), the wording specifies that the regulations that the Secretary of State may create may include provisions about

“features of the packaging of vaping products or nicotine products which could be used to distinguish between different brands of the product”.

The same phrase is used about other product requirements in clause 63(1)(f). My concern is that such a caveat could exclude revision to generic standards, such as capacity of refills, cartridges or pods, and nicotine delivery.

As I mentioned, we have heard how part of the issue with the use of vapes is their tactility. They are discreet and can easily be hidden, and all evidence I have received about the concurrent disposable proposals that are being worked on by the Department for Environment, Food and Rural Affairs is that there will be little change. The leading producers will be able to meet those new requirements with a few minor adjustments to their products, such as attaching a USB port. I appreciate from his amendment that the hon. Member for Harrow East has similar concerns. I therefore think we should include provisions for other requirements to be introduced for these products that would have an impact on their use by children, while maintaining their viability as an attractive stop-smoking aid.

I include in new clause 10 powers to amend regulation 38 of the Tobacco and Related Products Regulations 2016, as well as regulation 36 on general product requirements, as they cover a range of miscellaneous presentational issues such as misleading or harmful claims that the product has certain health or lifestyle benefits, or attempts to mimic other items. I note, for example, that the current regulations specify that vapes cannot look like a food or cosmetic product, but that does not include looking like stationery, which was an issue identified in evidence by the NASUWT. Conversely, those regulations specify that a product cannot make any environmental claims where it may, in fact, be beneficial to do so to encourage greater use of reusable features once the regulations on single-use vapes come into effect.

Simply put, the purpose of the new clause is to give greater flexibility to Ministers to design regulations that can respond to problems as they arise and so that those powers are not limited to the aesthetic features of packaging or the products themselves, but can prohibit product claims and other characteristics that may appeal to children. My concern is that the legislation as drafted would not achieve that, particularly as we are dealing with regulations that were designed for vapes but which, through the Bill, could be extended to a host of as yet less understood nicotine products. We therefore need that flexibility.

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

I am genuinely grateful to hon. Members for bringing this discussion before the Committee. We all agree that with vaping, product packaging is an integral part of what we are seeking to avoid for children. As I have said before, I am on the warpath where promoting vaping to children is concerned. I want to assure all hon. Members that the reason I resist the amendments is that we already have the powers in the Bill and I want to explain how that is so.

I am sympathetic to the concerns raised. Making sure we have the right powers to tackle the appeal of vapes to children is crucial and integral. It is totally clear that the design of many vapes is targeted at children, with brightly coloured features and eye-catching designs. There is no way we will stand by while industry knowingly, deliberately and maliciously encourages children to take up addiction and use products that have been designed for adults to quit smoking. The chief medical officer has written:

“Companies trying to addict children for profit are behaving in a shameful way. Yet it is undoubtedly happening.”

That is why we are bringing forward powers to regulate product requirements as part of the Bill.

I am sympathetic to the broadening of the scope of our regulations so they cover all product and packaging features and requirements, as in amendment 21. However, the Bill already contains regulation-making powers to make provision, in relation to vaping and nicotine products, for things such as appearance, size and packaging, as well as the substances that may be included and the amount of any substance within the e-liquid, including nicotine.

Photo of Trudy Harrison Trudy Harrison Conservative, Copeland

May I seek clarity that the font would be included in the category of appearance, because I have certainly seen some vaping products advertising lemon flavour and the font appears in a very stylised way that I would suggest is aimed at young children?

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

Absolutely. The Bill does allow us great flexibility in these areas and, to clarify, this does include amending fonts and alphanumeric markings, which is the intent of amendment 26. The Bill already provides for that, just to be absolutely clear. That is why we do not need to take additional powers to amend aspects of the Tobacco and Related Products Regulations 2016, as suggested in new clause 10. The Bill already captures all the features that we may need to regulate, and allows that regulation to extend to non-nicotine vapes and other nicotine products.

Amendments 39 to 43 effectively place a duty on the Secretary of State to consult on secondary regulations. As stated in the House on Second Reading, I want to make clear my commitment to undertaking, on the vape regulations, comprehensive consultation regarding, but not limited to, packaging, product requirements, flavours and changes to the MHRA vape notification scheme. I want to make it clear to the Committee that, of course, prior to those regulations we will engage in comprehensive stakeholder discussions. For that reason, it is not necessary for a legal duty of consultation to be placed on the Secretary of State in relation to the regulation-making powers. That would result in a loss of flexibility and speed. There may be occasions when we will need to make minor changes, or quickly adapt to emerging products. Of course, in the vast majority of cases, consultation is the right and proper thing to do, but we do not need this to be stipulated in the Bill. For those reasons, I ask hon. Members to withdraw or not press their amendments.

Clauses 61 and 63 provide the Secretary of State for Health and Social Care with a power to make regulations about the retail packaging of vaping products and nicotine products and to introduce other product requirements for vaping and other nicotine products. Vaping is never recommended for children. It risks addiction and unknown long-term health impacts while their lungs and brains are still developing. We must not replace one generation addicted to nicotine with another. We know that giving up nicotine is difficult because the body has to get used to functioning without it. Withdrawal symptoms include cravings, irritability, anxiety, trouble concentrating, headaches and other mental symptoms, so I say to those children currently thinking, “A vape is going to calm me for my GCSEs” that it is going to do the exact opposite. We need to get that message across to children.

Despite the clear health advice, there has been a significant and alarming rise in the number of children vaping. Data shows that the number of young people vaping has tripled in just the last three years and now one in five children has used a vape. That is incredibly alarming and it is unacceptable. We heard, in our vaping call for evidence, that children are attracted to vapes by the brightly coloured packaging and the use of child-friendly images such as cartoons. The hon. Member for Birmingham, Edgbaston gave very good examples. Research on vape packaging has shown that reduced brand imagery can decrease the appeal to young people who have not previously smoked or vaped, and can do so without reducing the appeal of vapes to adult smokers trying to quit. To protect children from potential health harms of vaping, we must reduce the ways in which vaping appeals to them, and do so without impacting on adult smokers.

Photo of Mary Glindon Mary Glindon Opposition Whip (Commons)

I am not sure whether this is the appropriate moment for this question, but the Minister is making such a good case for making vaping unattractive and stopping vapes being available to children that I want to ask whether she has considered the idea of the licensing scheme that the vaping industry has put together—I believe that it has been presented to the Government before, although perhaps not to the Minister, in her position—which it believes will control who sells and supplies vapes and provide a vast sum to support greater enforcement. I just ask that, incidentally, as a question that the Minister may be able to answer.

Photo of Andrea Leadsom Andrea Leadsom The Parliamentary Under-Secretary for Health and Social Care 10:45, 14 May 2024

I am grateful to the hon. Lady for giving me the chance to give my personal opinion on licensing. It is a licence for the vaping industry to get rid of the competition, make loads more money and focus even more on addicting children to vapes. It is the most cynical of all the cynical proposals I have seen. I am literally in no way in support of a licensing regime. I see lots of nods around the room; I hope that my personal view is clear and am glad that it seems to be shared by a number of hon. Members.

Clause 61 provides the Government with regulation-making powers, which could be used to limit the appeal of vapes and other nicotine products to children. This could include, for example, regulating the types of imagery that can be used on packaging, as well as the size, shape and appearance of the packaging—subject, of course, to further consultation.

Clause 63 allows us to introduce requirements that could, for example, limit the types of imagery used on the product itself, as well as its size and shape. I therefore commend the clauses to the Committee.

Question put, That the amendment be made.

Division number 3 Tobacco and Vapes Bill — Clause 61 - Retail packaging of vaping products and nicotine products

Aye: 1 MP

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

The Committee divided: Ayes 1, Noes 9.

Question accordingly negatived.

Clause 61 ordered to stand part of the Bill.