New Clause 11 - Testing of samples of nicotine-containing e-cigarette products

Tobacco and Vapes Bill – in a Public Bill Committee at 3:00 pm on 14 May 2024.

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“(1) Regulation 36 of the Tobacco and Related Products Regulations 2016 is amended as follows.

(2) At end insert—

‘(12) The Secretary of State may—

(a) approve and monitor one or more laboratories (“approved laboratories”) which must not be owned or controlled directly or indirectly by the tobacco or e-cigarette industry; and

(b) arrange for an approved laboratory to verify the product requirements referred to in this regulation.

(13) For the purposes of enabling the Secretary of State to perform functions under paragraph (11)(b), a person who produces e-cigarettes or nicotine-containing liquids, or manufactures e-cigarettes or nicotine-containing liquids for export must provide to the Secretary of State (or to such person as the Secretary of State may specify) such samples, at such times and intervals and from such sources, as the Secretary of State may reasonably require.’

(3) The Secretary of State may by regulations make provision that is consequential on this section.”

This new clause enables the Secretary of State to approve laboratories for the purpose of testing product requirements of nicotine-containing vaping products set by the Tobacco and Related Products Regulations 2016 and to require manufacturers to provide samples for testing.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss new clause 13— Report on the powers of the Medicines and Healthcare products Regulatory Agency: vaping and nicotine products—

“(1) Within 12 months of this Act receiving Royal Assent, the Secretary of State must lay a report before Parliament examining the case for giving the Medicines and Healthcare products Regulatory Agency (the MHRA) the explicit power to—

(a) request samples and test vaping and nicotine products as part of the notification scheme; and

(b) recall and remove from the list of notified products vaping and nicotine products which do not comply with product standards.

(2) The report should also examine the case for a requirement for local trading standards authorities to notify the MHRA of any instances where vaping or nicotine products are being sold which—

(a) have not been notified to the MHRA; or

(b) do not comply with product standards.

(3) The Secretary of State may by regulations give effect to any recommendations made in the report.

(4) 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

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

I rise to speak to new clauses 11 and 13 on the testing of nicotine-containing vape products. Earlier we debated clause 73, which will allow Ministers to create new exceptions to publication as part of the notification scheme. We of course welcome those new powers, which represent a concession on the Minister’s part. However, the current notification process, which is what products must go through to get on to the UK market, is not as robust as it should be for nicotine-containing vapes.

As we have said, youth vaping is a serious growing issue. In 2021, Labour voted for an amendment to the Health and Care Bill to crack down on the marketing of vapes to children. Since then, according to the most recent survey by ASH, the number of children aged 11 to 17 who are vaping regularly has more than trebled to more than 140,000 British children. Meanwhile, one in five children have now tried vaping.

This issue is not only a concern in itself, but there is the issue of whether all these products are safe and whether they are what they say they are. I have raised serious concerns, for example, about the fact that children are puffing on 0% vapes that actually do contain nicotine, which gets them accidentally addicted. This is something that we discussed at the evidence session and that goes to a fundamental question about the MHRA’s role in the regulation of vapes. Is the MHRA really only the administrator of the notification scheme, or should it have a clearer responsibility to regulate and to take responsibility for the safety of vaping products?

Clause 73 indicates that the Minister agrees that it should. This is something one would expect the MHRA to take an interest in. Vapes are a product with clear consequences for the health of the population. There are risks, and some of the long-term health consequences of sustained vape use are not properly understood, but the Government’s policy is effectively to recommend this product as a stop-smoking aid. The Government, therefore, have a responsibility to be able to say with confidence that the products they legally allow on to the market are what they say they are and are safer than smoking.

We heard evidence from Dr Squire, the chief healthcare quality and access officer at the MHRA. It was an interesting discussion but, when it came to the notification process, what I took away was the fact that she could not say, “This is an absolutely robust system that keeps everybody safe,” and, “That is why the Bill is important.” I supported clause 73 to provide exceptions to publication, which would allow policies to be set where the MHRA would refuse to publish the notification for products that would make them available for legal sale. My concern, however, is about what is missing from the legislation to give the MHRA the information it needs to say confidently whether a product is actually safe.

I want to be clear in case the Minister raises it: new clause 11 is not about undermining the enforcement role of trading standards teams. After a product gets to the market, trading standards proactively ensure that potentially dangerous products are not stocked on shelves, and we have the yellow card scheme for customers to report an adverse reaction to a vaping product. Who is monitoring the long-term risks of these products? I doubt they would be caught by either trading standards or the yellow card scheme, but that is another question.

In relation to new clause 11, however, what I am talking about is the screening of products before they get to the UK market to enable the MHRA to have the information it needs to refuse a notification publication, even if the company has, on paper, met the requirements. I appreciate that the exceptions in clause 73 are not yet defined, but the MRHA does not have the powers to gather the information it needs in the first place in order to make those exceptions. As Dr Squire admitted herself, there are cases right now of products getting on to the market that do not match the product registered through the notification scheme. Those products could have tank sizes that are too large; they could include dangerous chemicals or include dangerously high nicotine strengths.

Our fundamental concern is that these products are now extremely popular with children. That is why I contend that the MHRA should have additional powers to test a proportion of products to ensure that they comply with their notifications. I think any outside observer would contend that that is common sense. The Secretary of State has testing powers for tobacco products, so why not for vapes? Will the Minister therefore support my new clauses, which seek to address that through this Bill? This is not just about the market as we know it today; this is about safeguarding the future of vapes to ensure that consumers can have confidence in those products and that we, as legislators, can have confidence in the products that we are recommending as stop-smoking aids. That is why I commend new clause 11 to the Committee.

Finally, new clause 13 would require the Secretary of State to report on some of the new powers on testing that I have just described, as well as on another power that the MHRA does not have at present, which is to remove notifications from publication. Currently, this power rests with the Secretary of State in the Tobacco and Related Products Regulations 2016 to recall a product if it is deemed to pose a serious risk to human health. This is a high bar. It is my concern that in practice the emergence of such risk can be a slow process.

I have told the Minister before how the limitations of this power were made clear the other year when Elf Bar, which is perhaps the market leader in this space, was found to be selling vapes with tank sizes that were larger than allowed. The responsibility to remove those products from the market actually lies with the producer—quite rightly—but this issue is about the recourse that the Government have when a threat is urgent and a company does not comply.

New clause 13 would also examine the case for a duty to be applied to trading standards that would be similar to the duty on councils in Northern Ireland to share intelligence on non-compliant and illicit products, so that we can better join up the enforcement response at the national level. Once again, I urge Members to support these new clauses and I commend them to the Committee.

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

I am grateful to the hon. Lady for bringing these issues before the Committee. These new clauses seek to give more powers to the MHRA to introduce a testing regime for vaping and nicotine products, and to ensure that the laboratories conducting the testing are independent of the tobacco industry. They also aim to give the MHRA powers to remove notifications and thus prohibit the sale of products if they are found to be non-compliant.

New clause 13 would require the Secretary of State to produce and lay before Parliament a report to consider whether the MHRA should be given new powers to request and test samples, and to remove vaping and nicotine products from the list of notified products. The report would also have to examine the case for a requirement for local trading standards authorities to notify the MHRA of any instances where vaping or nicotine products are being sold that have not been notified or are non-compliant.

I am very sympathetic to the aims of these new clauses, but the current notification system is not an enforcement tool and should not be viewed as such. It is the responsibility of trading standards to ensure compliance of vaping products and to remove non-compliant—that is, illicit —vapes from the market and stop their sale. It is also the responsibility of trading standards to test a product if they believe that it contains illegal substances or too much nicotine. The MHRA supports this work by providing intelligence from the notification system.

New clause 11 would facilitate the previous new clause by giving powers to the Secretary of State to approve, as part of the testing regime, certain laboratories that are not in any way funded or controlled either by the vaping industry or the tobacco industry.

The Secretary of State can already commission independent laboratories to undertake the testing of vapes, in order to check and confirm that they meet our regulatory standards as set out in the Tobacco and Related Products Regulations 2016. We can also produce relevant guidance to support this work, so the new clause really is not needed. Trading standards, supported by the MHRA, work with local scientific services that are independent of the tobacco and vaping industry in order to test vapes and to take action where non-compliance is found. These testing facilities support our enforcement programmes.

In fact, last year the Prime Minister visited an independent lab in Kent that checks for specific ingredients and harmful substances. The Prime Minister, who was accompanied by the chief medical officer, Sir Chris Whitty, described the laboratory as “a centre of excellence” and said that it was at the frontline of testing, providing vital information in the campaign to tackle illegal vaping.

In summary, although I completely understand and support the aims of each of these new clauses to ensure that products are rigorously tested, adhere to our regulations and do not pose additional risk or harm, we can already test products, and indeed do, using quality-assured laboratories for this work. In addition, there are tough penalties in place for those who break our rules, including unlimited fines and prison sentences. As hon. Members know, we have also provided new funding and support to help local trading standards to enhance their enforcement capacity and to test products. For those reasons, I ask the hon. Lady not to press her new clauses to a vote.

Photo of Preet Kaur Gill Preet Kaur Gill Shadow Minister (Primary Care and Public Health) 3:15, 14 May 2024

I say to the Minister that my concern is about certain products entering the UK market in the first place. If the MHRA is the only organisation that can test what has been notified, it will be supplied to us, but we know that what arrives is sometimes not actually what is in the notification process. If they were testing before the product came into the UK, that would be the point at which we want to try to address the growth in the illicit markets. I hope the Minister will consider this, especially before Report.

I will not push new clause 13 to a vote, but I would like to push new clause 11 because it is really important. The point is about what comes into the country. The MHRA in evidence actually said that it recognises that what is notified that eventually enters the UK is not exactly what is on the notification process.

Question put, That the clause be read a Second time.

Division number 4 Tobacco and Vapes Bill — New Clause 11 - Testing of samples of nicotine-containing e-cigarette products

Aye: 6 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.