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Agenda item 3 is an evidence session with the Minister for Public Health and Women’s Health and her supporting officials on the Tobacco and Vapes Bill legislative consent memorandum, LCM-S6-51, which was lodged in the Scottish Parliament by the Cabinet Secretary for Health and Social Care on 21 November.
The legislative consent process set out in chapter 9B of the standing orders requires the Scottish Government to notify the Parliament, by means of a legislative consent memorandum, whenever a UK Parliament bill includes provision on devolved matters. Each LCM is referred to a lead committee to scrutinise and report on, before the Parliament decides whether to give its consent to the UK Parliament legislating in the manner proposed.
The Tobacco and Vapes Bill was introduced in the House of Commons on 5 November 2024. The purpose of the bill is
“to make provision about the supply of tobacco, vapes and other products, including provision prohibiting the sale of tobacco to people born on or after 1 January 2009”
and to make provision
“about the licensing of retail sales and the registration of retailers; to enable product and information requirements to be imposed in connection with tobacco, vapes and other products; to control the advertising and promotion of tobacco, vapes and other products; and to make provision about smoke-free places, vape-free places and heated tobacco-free places.”
I welcome to the committee Jenni Minto MSP, Minister for Public Health and Women’s Health; Professor Linda Bauld OBE, chief social policy adviser; Fiona Dill, teams leader for the tobacco, gambling, diet and healthy weight directorate; and Ruth Foulis, lawyer with the legal services directorate.
I invite the minister to make a brief opening statement.
I am delighted to be here to provide evidence on the Tobacco and Vapes Bill LCM, which was lodged in our Parliament on 21 November.
I am sure that, like me, committee members were disappointed when the previous version of the bill fell at the dissolution of the UK Parliament. However, I tend to think that things happen for a reason, and the reason in this case was the opportunity to create a stronger bill.
I remain committed to a tobacco-free Scotland by 2034, which, at its core, has the aim of Scotland being a nation where people live longer and healthier lives. This UK-wide Tobacco and Vapes Bill will help us to achieve that.
Although smoking rates have reduced in recent years, people are still taking up smoking. Cancer Research UK estimates that around 350 people start smoking tobacco each day, with the vast majority of those—nine out 10—starting before the age of 21, and with people living in our most deprived areas being most likely to start.
The bill is about stopping that start—it is about creating a generational change, meaning that those born after 1 January 2009 will never legally be able to buy tobacco. The bill will gradually increase the age of sale for tobacco products and provide powers to legislate on vape flavours, displays and packaging, as well as introducing an advertising ban for vapes and nicotine products.
This landmark legislation will ban vapes and nicotine products from being deliberately promoted and advertised to children, to stop the next generation becoming hooked on nicotine. The bill will provide powers to extend the indoor smoking ban to certain outdoor settings, subject to full consultation. If passed, with the consent of the Scottish Parliament, the bill will benefit public health in Scotland and help to save lives.
11:15As I have indicated, the bill also helps to take forward actions in our tobacco and vaping framework. We have worked closely and collaboratively with the UK Government and with other devolved Governments on the bill, and have absolutely ensured that the bill works for Scotland and will deliver impactful change.
Colleagues around the table will remember back to the time before the 2006 indoor smoking ban or to a time when tobacco was advertised and openly displayed in shops. Before legislative changes came into effect, it was hard to think of life without a smoking area in a restaurant or without a racing car covered in red and white or black and gold. We could only dream of such things not existing. It is now hard to think of a world where that would be acceptable.
This bill, like the legislation before it, creates that break with the status quo and provides the opportunity to do something impactful for the next generation, with tobacco, specifically, becoming something that is relegated to history. We have the opportunity for future generations in Scotland to learn about tobacco from books and not to experience its devastating consequences. I therefore recommend that the Scottish Parliament consents to the legislative consent memorandum.
Thank you very much, minister. The committee has a number of questions about the LCM. On a point of clarification, you referred in your statement to nicotine products. Can I check that the bill would not cover smoking cessation products such as lozenges, chewing gum and patches?
That is correct. Clause 60 of the bill sets out that the meaning of “nicotine product” includes
“nicotine, or any substance containing nicotine, which is intended to be delivered into the human body”
but we still need ways of providing cessation products for people who wish to cease smoking.
Thank you very much for that clarification.
Good morning, minister. How would you respond to criticisms that existing restrictions on vaping and tobacco are not being adequately enforced?
The Scottish Government works closely with local authorities and with the Society of Chief Officers of Trading Standards in Scotland on that. We invest about £3 million into that work and also £50,000 to ensure that we have that relationship.
One of the important things about the bill is the fact that it is across the four nations. The UK Government has invested £100 million over five years to support HM Revenue and Customs and border control to ensure that we can reduce the amount of illicit products coming in.
Enforcement is important and that is the work that we continue to do and have great conversations about with local authorities. We also have the register of tobacco and nicotine vapour product retailers in Scotland, which helps us. It includes every retailer that sells cigarettes and other nicotine products, so we can get that information from them as well.
The register is obviously very different to the way that we handle alcohol licensing, for example. As a result of some of the things that are happening through the bill, does the Scottish Government have any plans to put additional restrictions in the register, to bring it in line with how we regulate other health-harming products, such as alcohol?
We are working just now—because it is part of our tobacco and vaping framework, which was launched last year—to ensure that we have a register that is fit for purpose, not only for those of us who are tracking the retail elements of nicotine products but for retailers, to ensure that they get the right information. The investment is going into the register just now. Of the four nations, we are the only one that has a register for tobacco and vapes, and that is very positive.
There are various provisions in the bill. Some are about the sale of vapes, but some are about smoke-free environments. We are supposed to have smoke-free environments outside hospitals, for example, but from my inbox as well as my experience, I know that that is not necessarily what is happening outside our hospitals at the moment. What comfort or assurance can the minister give people that the powers that are coming to the Scottish Government will be enforced and that we will see smoke-free environments happen? At the moment, for the most part, it is not happening outside hospitals, where it should be.
I thank Gillian Mackay for that question and empathise with her experiences. I see the same thing outside hospitals. I am pleased that we are working with Action on Smoking and Health Scotland, which is doing a report on the impact of smoke-free zones outside hospitals, and that work is also being extended to other spaces. However, I have to be clear that we will not be introducing any additional spaces without proper and robust consultation and engagement with all stakeholders and the general public.
I declare an interest, as I am a general practitioner in the national health service.
Could you give me some examples of herbal products that are going to be banned?
As I understand it, not being a smoker and not being a user of herbal products, there are herbal products that are made into cigarettes, and nicotine pouches are also used.
Nicotine pouches are different to herbal products. I will have questions about the pouches, but first, are the herbal products that are to be banned those that contain nicotine?
Again, my understanding is that herbal products do not necessarily contain nicotine, but they contain substances that can have a carcinogenic impact, as well as tar. That is why they are included in the legislation.
We are mostly worried about combustion. If someone is smoking even a herbal product, they are going to create combustion and particulate matter that, as we know, has toxicants and carcinogens that are harmful, particularly to the lungs. The primary focus is therefore herbal smoking products. As you say, nicotine pouches are something different. I hope that is helpful.
The biggest herbal product is cannabis. Is that included in the bill?
The bill does not include cannabis in herbal smoking products.
Professor Bauld, you said that the problem is combustion, which creates particulate matter, which then harms the lungs. That is exactly what happens when people smoke cannabis.
My understanding is that we have separate legislation for drugs, but I am not an expert on that so we might wish to hand it over to others.
The concern about herbal smoking products, as distinct from cannabis, is that we did not include herbal smoking products—not cannabis, and not herbal smoking products that contain cannabinoids—in our previous tobacco control legislation, so there was a loophole. People are smoking things that are not cannabis but they might be mixing tobacco with other herbal products and so on that are not included in tobacco control legislation. That loophole means that people are exposed to harm. We are not treating that category of products in the same way as we are treating some other products. That is the intention behind including those herbal products in the bill. There might be separate arguments about cannabis, but that is separate from this legislation.
I will move on to talk about pouches. You mentioned snus, which is very popular in Scandinavia; it seems that almost everyone in Scandinavia is taking the product. What is the evidence for banning it?
Snus has been banned since 1992.
Why is it specifically mentioned in the LCM?
It is included in the legislation so that it is all in the same legislation and so that there is consistency.
What about visitors to the UK who bring in snus?
That is a very good question. I will hand over to Ruth Foulis.
Currently, the provisions will cover possession with intent to supply. If someone is in possession for personal use, that would not be covered.
What about a UK citizen who has it for personal use?
If a UK citizen bought snus outside of the UK, in a country where it was legal to do so, and brought it into the UK for personal use, that would not be covered by the prohibition provisions that are already in the Tobacco and Related Products Regulations 2016. Those provisions are being removed from the regulations and brought into the Tobacco and Primary Medical Services (Scotland) Act 2010. The prohibition that currently exists will remain the same.
Minister, you said that snus has been banned since 1992. We still smoke and we have a drug consumption facility coming in where people will consume drugs and be able to buy them. What was the evidence behind banning snus?
I cannot respond with regard to the evidence for banning snus, but I remember very clearly back in the 1990s when it was a problem, and there were a lot of news stories about snus. I remember the impact that it had—mouth cancer, for example. We are looking at tobacco, vapes and other nicotine products. As I said in my introduction, this is positive legislation that looks to stop people before they start and ensure that young people who are born after 1 January 2009 do not have the opportunity to use those nicotine products. Doing that is incredibly important. I do not know whether Ruth Foulis has anything to add in answer to Dr Gulhane’s questions on snus.
As far as I understand it, the prohibition was decided at European Union level when we were EU members. We implemented that prohibition and it remains in place. As far as I am aware, the evidence at the EU level was that, as it was a novel product, which beyond certain Scandinavian countries had not yet developed a market and was viewed as a risk, they would treat it slightly differently from other tobacco products that already had a market in the remaining non-Scandinavian EU states. They thought that the best step forward was to introduce the prohibition. I do not think that we have any evidence to suggest that that should be rolled back. I was a small child in 1992, so I cannot speak about any lived experience of those discussions. However, from reviewing what we are doing this time around, that appeared to be the evidence basis.
Lucky you.
Snus is a low-nitrosamine tobacco product. The evidence has evolved. Ruth is absolutely right that the decision was made on the basis of EU legislation about not allowing into the EU another novel product that was not risk-free and which would complicate the tobacco control measures that we had at the time. There has never been an appetite to lift that ban.
It is the case that low-nitrosamine oral tobacco products are less risky than other oral tobacco products that we know are used by communities in the UK. However, as Ruth said, the decision was taken not to allow that category of products to be sold in the EU and it still stands.
11:30
Good morning, minister and guests. I want to go back to the question of how we enforce the legislation. When I pick my daughter up from school, I am always shocked by the number of kids who are openly vaping. If you talk to the on-site police officer, he will tell you about the amount of product that he takes off kids daily—bags full of the stuff. If it were down to me, I would take a much harsher approach and ensure that the products were used only for smoking cessation.
Given, in particular, the disparity between Scottish index of multiple deprivation 1 and SIMD 5 areas when it comes to smoking, how will we ensure that the legislation is enforced under the new LCM? After all, it is not being enforced just now.
I thank Brian Whittle for his question, and I recognise the picture that he painted at the start of it. When I visited a school in my constituency, I was pretty shocked to see the handful of disposable vapes that a teacher produced. Therefore, I absolutely understand where Mr Whittle is coming from.
I agree that we need to improve enforcement, which is why we, as a Government, have a very good and close working relationship with the local authorities. In answer to Gillian Mackay’s question I indicated that we are investing £3 million directly in local authorities to support enforcement, and we also have an important working relationship with the Society of Chief Officers of Trading Standards in Scotland. Moreover, we already have fixed penalty notices in place. The important message that will be sent with the passing of this bill and the additional UK-wide regulations on displaying vapes will, I hope, help with enforcement, too.
Just as a follow-up, what we are discussing and describing are penalties for breaking the law, but the flipside to that is this: how do we educate our kids in such a way that they decide not to go down that route in the first place? Is there any complementary way in which this legislation will be backed up?
I agree that education is incredibly important. In four or five local authorities, we have a pilot called project youth, which is also known as the Icelandic model, and it works directly with schools, the parents and the wider community on issues such as health, including the negativities around smoking and the impact that it can have on children’s lives as they grow up.
Moreover, we have, through curriculum for excellence, a lot of teaching on health improvements and on things that can support a person’s health and other things that can have negative health impacts. I am very much old enough to remember the snus that we were talking about earlier, but I also remember how, when I was in primary school and doing a project using advertisements, all the ads were for cigarettes.
That situation has completely changed now. I think that we have made a really important step forward in schools, and it is something that we need to continue. When the Scottish Children’s Parliament was at Cabinet a couple of weeks ago, one of the things that its members had a conversation directly with the cabinet secretary on was reducing the use of vapes, because they felt so strongly and passionately about the issue.
Could you, through the LCM, create further restrictions on access to the likes of vapes and who can retail them?
The retail side is handled through our register, which I talked about earlier and which includes shops that stock vapes. With regard to spaces and where people can vape, as I said, we will consult on that once the bill has passed. With regard to displays and flavours, there is UK-wide legislation on that, and we will work with the UK Government on its implementation.
I feel that I should first declare that I, too, am old enough to remember when the John Major Government banned snus. There was quite a bit of television coverage at the time about the risks of that novel product potentially coming to the UK.
I want to ask about retail and sales. We have had comments from the retail industry, particularly from the Scottish Grocers Federation, about the practicality of complying with the regulations. The federation raised a concern about the age at which adult staff will be able to sell tobacco products, which is increasingly getting older and older. Might that actually provide a public health benefit? As it becomes more difficult for retailers to routinely supply tobacco products before they are completely gone, many will decide not to sell those products and we will find that tobacco is no longer universally available. Would that reduced availability make it easier for people to give up smoking, because they would not be surrounded by tobacco products in the way that they are now?
As I said in my opening remarks, between 80 and 90 per cent of people who start smoking do so before they are 21. From my perspective, it is important to recognise that and to recognise the importance of prevention before people start. You raise really important points about the recognition of products. If you go into anywhere that sells tobacco, the grey blinds are pulled down and you cannot see the products. With vapes, there is basically a rainbow of colours and flavours that are very attractive to young people. Evidence would show that flavours such as candy floss, gummy bear and watermelon are there to attract children. That is why it is so important to have UK-wide legislation, because it gives consistency across the four nations for consumers and for retailers.
Thank you.
I read recently that vapes do not seem to be one of the better ways of stopping smoking. Do you agree with that?
There are a number of ways in which people can cease smoking. I am pleased that figures out just today show an increase in the number of people who are using cessation services in the NHS in Scotland. I think that the figure is now over 30,000, which is back to pre-pandemic levels, which is really positive.
There are a variety of approaches and treatments that people can use to stop smoking. Linda Bauld is the expert on that, so I will bring her in.
Dr Gulhane, did you say that you read that vaping is not effective for smoking cessation?
Yes.
That is not the case. As the minister said, there are lots of different ways to quit. The most common way that people try to quit is to use nothing, and the success rates there are very low. The quit your way services increase the chance of success and cessation by three to four times, through a combination of counselling and stop-smoking medication.
The evidence on vapes has been growing over the years. You will be familiar with Cochrane reviews, which are the gold standard for systematic reviews. The first Cochrane review on vaping was in 2014, and it has been updated regularly since then, so we have a decade of evidence. In the first review, there was low-certainty evidence of success for smoking cessation—it is now high-certainty evidence. Over 22 studies, including tens of thousands of people, the odds ratio for e-cigarettes—which I have here—is 2.37 for six months’ cessation. We can compare that with the ratio for varenicline, our most successful medication, which is about 2.33. E-cigarettes are a highly effective way to quit, and they are very popular, but the best way to quit is through a combination of behaviour plus medication or vaping.
Thinking about the research and the science, the important thing, in my view, is to strike a balance between recognising that we have to find ways to make these products appropriately available to adult smokers who want to quit, while in this legislation—as the minister said—absolutely preventing smoking uptake and preventing the harms of vaping among young people and non-smokers.
Thank you for the clarification; the thing that I read was clearly not correct. We have a very high smoking rate in Scotland in comparison with the rest of the UK. Nonetheless, given that it is still a small proportion of people in Scotland who smoke, is there an argument to be made that we could have a generation that is smoking and vaping free?
I am sorry, Dr Gulhane—I lost the train of that question.
Could we put vaping and smoking together and ban sales to a generation to make our future smoking and vaping free?
The focus of our work over the next 10 years—or nine years, because it is a year since it was launched—is on the tobacco and vaping framework, which looks towards a tobacco-free Scotland in 2034. The UK legislation came in as we were developing our framework, and the Scottish Government has been very pleased to support it because we believe that it moves not only Scotland, but the entire UK, into the ballpark of aiming to be tobacco and vape free in 2034.
One of the difficulties that the legislation will face will not arise right now, because when it is introduced, it will be obvious what a child is in comparison with an adult. However, as the years roll on and people get older, the difficulty with the legislation will be people’s age, as they will look older. Do you foresee any difficulties, as people age with the legislation, that the identification of people to enable them to access tobacco and vapes might not be as good as we would hope?
There is currently a need for people to confirm their age when they are buying products if the retailer is at all concerned, so that is something that is accepted. The point—which I have made before—is that between 80 and 90 per cent of people who start smoking do so when they are under 20, so by the time the legislation moves through, if it is successful, it is clear that there will be fewer people starting to smoke.
I go back to the point that the legislation is here to help us stop the start, and that is a strong message that everyone should recognise.
I have a final question with regard to what happens with people who have cigarettes when they are under the age that they should be, regardless of whether, in time, that age changes. Obviously you are repealing the law for under-18s, because that will not make any sense going forward, but I have not seen what is replacing that. What would be the punishment for people buying cigarettes for people who are under the age as set out in the LCM? What is the punishment for people who have possession of, and are using, these products outside of when they should be?
11:45
That provision of the legislation that will be repealed is specific to Scotland. We had consulted and taken advice from other organisations, including ASH Scotland, which felt that it was not appropriate to criminalise someone’s addiction to nicotine or tobacco. That is why that aspect of the legislation will be repealed. As I say, we are the only nation of the four UK nations to have that provision. There is absolutely no change to the legislation in relation to proxy buying for underage people or in relation to retailers selling to underage people. The legislation will change only to remove criminalisation of under 18s.
Thank you.
Good morning, minister. I am interested in the vaping issue, as I am co-convener of the cross-party group on lung health, and ASH Scotland has come and presented to us. I am thinking about how retailers seem to be everywhere now—taxi drivers are selling vapes and online food companies will sell vapes as part of your food delivery. How will retailers be educated on or supported in the change in the law?
Parents need to realise the damage that nicotine does to their children. We hear about kids who are so anxious that they cannot sleep, and when they try to withdraw from vaping, they have withdrawal issues. There are total health impacts for young people who vape, so I welcome this legislation, but how do we make sure that retailers are aware of it, and how do we curtail the number of businesses that are selling vapes?
There are lot of questions wound up in that. I go back to the development that we are currently doing on the register of tobacco and vape products. That involves changing a platform, which will become a much more useful tool for putting out information to retailers and for getting information back from retailers. The register is really important.
As with any change in regulation, if the bill goes through, we will need to work closely with retailers and have those conversations to ensure that they know about the legislation. That is absolutely key to making this work.
With regard to ensuring that parents are aware of the impacts of tobacco and vaping, I have already highlighted project youth, also known as the Icelandic model, which has had amazing results in improving the health of younger people. In Scotland, at the beginning of this year, we had the take hold campaign, which was specifically aimed at parents and carers to ensure that they understand the impact of vaping on young people’s health. I was really pleased that women’s football used the advert at their cup final at Tynecastle, which pushed it out to an audience that needs to be aware of the impacts.
I also refer to the answers that I gave to Mr FitzPatrick and Mr Whittle—education through curriculum for excellence ensures that children understand the impacts of things on their health.
Thanks.
I thank the minister and her officials for giving evidence today. This is the final meeting of the Health, Social Care and Sport Committee in 2024. At our next official meeting, on 14 January, we will resume our stage 1 scrutiny of the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
On behalf of the committee, I take the opportunity to thank everyone who has contributed to our work this year and to wish everyone a happy and restful festive period. That concludes the public part of our meeting.
11:49 Meeting continued in private until 12:13.Air ais
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