A Consultation on Electronic Cigarettes and Strengthening Tobacco Control in Scotland: Analysis of Responses

Executive Summary

INTRODUCTION

1. This report presents an analysis of written responses to the Scottish Government's consultation paper, Electronic Cigarettes and Strengthening Tobacco Control in Scotland. The consultation invited views on a range of potential measures to regulate the sale and use of electronic cigarettes and to strengthen tobacco control in Scotland.

2. The consultation asked 49 questions and ran from 10th October 2014 to 2nd January 2015. The final number of responses received was 172: of these, 94 were from group respondents and 78 from individual members of the public.

ELECTRONIC CIGARETTES

Age restriction for e-cigarettes

3. The Scottish Government proposes introducing legislation to ban the sale of e-cigarette devices and refills to people who are aged under 18. This would bring sales of e-cigarettes into line with other age-restricted products such as alcohol, tobacco and solvents.

4. A large majority of respondents (88%) agreed that the minimum age for sale of e-cigarette devices and refills should be set at 18. All but one of the group respondents answering the question agreed with this, as did 76% of individual respondents. Those who supported the proposal most commonly suggested that possible health risks and the addictive properties of nicotine provided a rationale for preventing under-18s from accessing e-cigarettes.

5. The majority of respondents (80%) thought that age of sale regulations should apply to all e-cigarette devices and refills, regardless of whether they are capable of containing nicotine. Amongst group respondents, 89% of those answering favoured the regulations applying to all devices, as did 67% of individual respondents.

6. In terms of to whom should apply any offence relating to the sale of e-cigarettes to under-18s, a small majority (57%) believed that an offence should apply to both the retailer and the young person. A further 41% thought that the offence should apply to the retailer only and only 2% thought the offence should apply to the young person only.

7. A substantial majority (79%) agreed that sales of e-cigarette devices and refills from self-service vending machines should be banned. Those who supported this proposal most commonly referred to difficulties in ensuring robust age verification for vending machine sales.

8. Views were divided on whether there should be a restriction on other e-cigarette accessories; 52% believed there should be a restriction and 48% did not.

9. Those who agreed with the proposed restrictions raised a range of issues, including that e-cigarette accessories have the potential to promote e-cigarette use and that it will be important for any definition to be formulated carefully. Most of those in favour of restrictions suggested that they should apply to all types of e-cigarette accessories. Respondents who opposed the proposed restrictions sometimes noted that, if implemented, they should only apply to e-cigarettes and liquids/refills or, more specifically, to products containing nicotine.

Proxy purchase for e-cigarettes

10. The Scottish Government proposes that it would be an offence for anyone aged 18 and over to purchase an e-cigarette to provide it to someone under the age of 18; this is known as 'proxy purchasing'. The large majority of respondents (78%) agreed with this proposal.

11. Comments by those supporting a proxy purchase ban referred most often to its importance within the wider approach, in combination with age of sale restrictions, to preventing under-18s from accessing e-cigarettes. Reasons given for opposing a proxy purchase offence included that the respondent would not wish to see legislation which prevented adults from purchasing e-cigarettes as smoking cessation aids for young people.

Domestic advertising and promotion of e-cigarettes

12. The majority of respondents (73%) thought that young people and adult non-smokers should be protected from any form of e-cigarette advertising and promotion. A large majority of group respondents (89%) supported this idea and there was no respondent category in which the majority were not in agreement.

13. The majority of respondents (66%) believed that further regulation of the domestic advertising and promotion of e-cigarettes, in addition to the cross-border restrictions to be introduced by the EU Tobacco Products Directive, is required.

14. Those who thought that additional regulations are required were asked which forms of domestic advertising and promotion should be regulated. The majority (75%) thought that regulation is required for all of the types of domestic advertising which the paper listed. These were bill boards, leafleting, brand-stretching, free distribution, nominal pricing, point of sale advertising and events sponsorship within a domestic setting.

15. Respondents who favoured additional regulations were also asked what, if any, exemptions should apply. Around one third of these thought there should be no exemptions. Amongst those who favoured some exemptions, the most frequently given reason was the need to balance a potential for e-cigarettes to contribute to a reduction in tobacco use with minimising any risks to non-smokers and young people. A common theme was that exemptions should apply when advertising supports the use of e-cigarettes to reduce tobacco use.

16. In terms of suggested exemptions, some related to the nature of the product being advertised. The most frequent exemption suggested was for e-cigarettes licensed in the future as medicines by the Medicines and Healthcare Products Regulatory Agency. The consultation paper noted that such products would be exempt from legislation in Scotland as medicines are regulated at a UK-wide level.

17. Other comments focused on the nature of the advertising approach and materials. Suggestions included only allowing advertising that promotes e-cigarettes as a smoking cessation aid, is targeted at current smokers, or uses an approach that will not appeal to young people.

18. Respondents were also asked if they were aware of any information or evidence that the Scottish Government should consider in relation to regulating domestic adverting for its potential impacts on children or adults. A range of information was cited, including specific studies and reviews which included research from other countries. A number of respondents commented on the limited nature of the evidence base for the impact of e-cigarettes and, in particular, their marketing. Several points were raised to illustrate the importance of, and challenges associated with, monitoring and ensuring compliance with advertising and promotion regulations. The broad range of advertising approaches and channels being used, including a particular emphasis on the use of social media, was noted.

19. The final question relating to domestic advertising asked respondents for information or evidence for potential impacts of regulation on business, including retailers, distributors and manufacturers. Amongst those who favoured further regulation, relatively few referred to specific research or evidence and some suggested that the potential for regulation to have a positive impact on public health would outweigh any negative business impacts.

20. Those who opposed additional regulation made more extensive comment, including highlighting the significant growth in the e-cigarette industry over recent years and the contribution that promotion and advertising have made to this growth. A small number of respondents commented on the risk of disproportionate regulation of e-cigarette advertising acting as a barrier to investment and growth. It was also suggested that a lack of a harmonised regulatory approach across the UK could lead to uncertainty for the e-cigarette industry, and potentially increase costs for manufacturers and retailers. Several respondents referred to the CAP/BCAP advertising rules which were introduced across the UK in November 2014, while the consultation was open for responses.

Inclusion of electronic cigarettes on the Scottish Tobacco Retailers Register

21. The Scottish Government proposes the introduction of mandatory registration for the sale of e-cigarettes or refills. Businesses which are already on the Scottish Tobacco Retailers Register would need to update their registration if they also sell e-cigarettes. Businesses which sell e-cigarette devices or refills, but do not sell tobacco, would be required to register for the first time.

22. A majority of respondents (65%) agreed that businesses selling e-cigarettes and refills should be required to register. A large majority of group representatives were of this view (76%), including most academic group, health body, local authority, other public body and third sector or professional body respondents. Views were more mixed across the e-cigarette industry and the tobacco industry, and a majority of pharmacy respondents disagreed with the proposal.

23. A majority (68%) agreed that offences and penalties connected to the proposed registration requirement should reflect those already in place for the Scottish Tobacco Retailers Register. A large majority of group representatives were of this view (80%), including most academic group, e-cigarette or tobacco industry, health body, local authority, other public body and third sector or professional body respondents. Views were more mixed amongst general retail and individual respondents

24. Those who did not think the offences and penalties should reflect those already in place for the Register were asked what offences and penalties should be applied. Most of those commenting disagreed with the principle of requiring e-cigarette retailers to register. The primary view was that e-cigarettes are fundamentally different to tobacco products and that the proposal could undermine the potential benefits of e-cigarettes. Some suggested that no penalties should apply to e-cigarettes sales and registration, although others supported penalties for sales to under-18s. Most of these respondents suggested that penalties should reflect the lesser known harm associated with e-cigarettes in comparison with tobacco use.

E-cigarettes - use in enclosed public spaces

25. A small majority (58%) believed that the Scottish Government should take action on the use of e-cigarettes in enclosed public spaces. The majority of group representatives (65%) were of this view, including most academic group, health body, local authority and third sector or professional body respondents. However, most general retail or pharmacy respondents and all e-cigarette industry or tobacco industry respondents disagreed. Individual respondents were evenly divided.

26. Those who thought that the Scottish Government should take action were asked what that action should be and why they favoured this approach. Many who commented suggested that the Scottish Government should take a precautionary approach until sufficient evidence is available on the long-term impacts of the use of e-cigarettes in enclosed spaces. Most of those who favoured action and commented recommended the extension of current tobacco legislation to include e-cigarettes which would result in prohibiting their use in enclosed public spaces.

27. Those who disagreed with the Scottish Government taking action were also asked to explain their reasoning. The most common reason for opposing action was a lack of conclusive evidence on which to base policy. There was also concern that prohibiting e-cigarette use in enclosed public spaces would not be proportionate given the relative health risks compared to tobacco.

28. The final question in the e-cigarettes section of the consultation paper asked respondents to suggest evidence on the use of e-cigarettes in enclosed spaces that the Scottish Government should consider. Some respondents commented more generally on the information available on the risks or benefits of e-cigarettes. This included: references to the extent to which understanding of e-cigarette use is still developing; a suggestion that a lack of conclusive evidence on harm caused by e-cigarettes is not sufficient to show that they do not cause harm; reference to media reports including fire risks; and anecdotal evidence based on personal experience or feedback from public sector service staff.

29. Otherwise, respondents referenced a broad range of evidence, including many published research articles and reports from both within and outwith the UK. The organisations which had published these articles and reports included the World Health Organisation, the Scottish Parliament Information Centre (SPICe), the UK Faculty of Public Health Policy, the US Centers for Disease Control and Prevention, the National Institute for Health and Care Excellence (NICE), the UK Medicines and Healthcare Products Regulatory Agency (MHRA), ASH Scotland and ASH.

TOBACCO CONTROL

Smoking in cars carrying children under 18

30. The Scottish Government proposes that it would be an offence for anyone aged 18 and over to smoke in a car while carrying a child or young person who is under the age of 18. A majority (79% of those answering) agreed that it should be an offence. However, 62% respondents did not agree that the offence should apply only to adults aged 18 and over.

31. Those who disagreed that the offence should apply only to adults aged 18 and over, and who suggested an alternative, most frequently thought that the offence should apply to all smokers in the car. Health body, third sector or professional body and local authority respondents were amongst those taking this view. Other suggestions included that the offence should apply to: the driver; any smoker and to the driver; or that, if the driver of the vehicle is under 18 and carrying passengers under the age of 18, then the offence should apply to the driver.

32. The majority of respondents (79%) agreed that Police Scotland should enforce this measure. Most of those who did not think Police Scotland should enforce this measure thought that the measure should not be introduced at all. An alternative to Police Scotland which was suggested was the involvement of local government or, more specifically, Environmental Health Services. It was noted that Environmental Health Officers have enforced the ban on smoking in enclosed public spaces and suggested that they could work collaboratively with Police Scotland to enforce any new measures.

33. Respondents were relatively evenly divided on whether there should be an exemption to cover vehicles which are also people's homes, with 56% of those answering agreeing and 44% disagreeing. Health body respondents were the only type of respondent more likely to disagree than agree.

34. When asked about other categories of vehicle which should be exempted, a number of respondents suggested that there should be no other exemptions or that there should be no exemptions when a vehicle is being used on a public highway. Some respondents suggested that if a vehicle that has a dual use (as a vehicle and a permanent or temporary home) is static and is being used as a home, then smoking should be permitted. Further points included that it will be important for any legislation to be clear and unambiguous.

35. Respondents who believed that a defence should be permitted were asked to suggest what a reasonable defence would be. A number stated simply that there should be no defence permitted if an adult smokes in a vehicle carrying someone under the age of 18. Suggested defences were that the smoker did not know, and could not have reasonably established, that a passenger in the vehicle was under the age of 18 years; or if the driver, by reason of driving the vehicle, was unable to prevent another person from smoking in the car, and had made all reasonable efforts to prevent the offence.

Smoke-free NHS grounds

36. The Scottish Government asked what, if any, measures were necessary to support the policies already implemented by NHS Boards to prohibit smoking on NHS grounds. The majority of those answering (67%) favoured national legislation to make it an offence to smoke or allow smoking in NHS grounds.

37. Respondents who supported the introduction of legislation were asked where this legislation should apply to. A majority (71%) thought it should apply to all NHS grounds (including offices, dentists and GP practices). Those favouring this approach included 15 out of the 18 health body respondents who answered this question. Of the 6 NHS boards which responded, 5 favoured this approach.

38. Other comments often focused on the need for a clear and consistent message and approach which reflected the current direction of travel on these issues. However, a number of respondents acknowledged the challenges associated with ensuring compliance with any legislation. In particular, it was noted that hospital grounds can be extensive and 'policing' the legislation may prove an additional expense to the NHS.

39. An alternative view was that imposing legal sanctions on what will often be vulnerable populations, who may already feel stigmatised for being addicted to tobacco, may not be the most appropriate way forward at this time. It was suggested that defined smoke-free areas within given perimeters around buildings would protect hospital patients, staff and visitors from second-hand smoke and still help establish a tobacco-free expectation. Other suggestions included the possibility of a gradual approach for the introduction of a comprehensive ban.

40. Those who did not support the introduction of legislation sometimes commented on why it would not be appropriate. Reasons given included that actions to achieve this outcome are currently being progressed by health boards and local authorities and that the needs of people with a disability, those detained against their will or anyone else who would have difficulty getting to an area in which they would be able to smoke have not been considered.

41. Those who supported national legislation were asked what exemptions, if any, should apply. Just under half of those who supported legislation and who commented stated simply that no exemptions should apply. However, some of them noted the importance of ensuring that effective nicotine replacement therapy is available to those, particularly inpatients, affected by any ban.

42. Others favoured some exemptions, sometimes referring to facilities that are effectively someone's home or where someone is held without liberty. The following exemptions were amongst the suggestions: (grounds of) mental health facilities; long stay facilities, including care of the elderly facilities; end of life units; and prisons.

43. In terms of who should enforce any legislation, respondents most frequently referred to partnership arrangements and tended to reference some combination of the NHS, local authorities and Police Scotland. The next most frequent suggestions were: the NHS should be responsible; arrangements should mirror those for smoking in enclosed public spaces; that local authorities should be responsible; or that Police Scotland should be responsible.

44. Those who supported national legislation were also asked about penalties for non-compliance. The considerable majority of those who commented either would support an approach which mirrored that already in place for smoking in enclosed spaces (as per the Smoking, Health and Social Care (Scotland) Act 2005) or explicitly suggested there should be fines. Some who advocated fines were amongst those who also suggested that a range of other options could be made available, including counselling, access to education, or awareness-raising courses of the kind used in connection with some motoring offences.

45. Those who did not support national legislation were asked what non-legislative measures could be taken to support enforcement of, and compliance with, existing smoke-free NHS grounds policies. Comments included that the enforcement of non-legislative smoking policies should be at the discretion of individual health boards or that the focus should be on education and awareness-raising. Other points made included that support for smoking cessation needs to be adequately resourced and that suitable, clearly signposted designated smoking areas should be provided for staff, patients and visitors.

Smoke-free children and family areas

46. The consultation paper notes that, while there are no plans for legislation, the Scottish Government remains committed to increasing the number of outdoor areas which are free from tobacco use. The majority of respondents (76%) thought that more action does need to be taken. Those favouring further action included 14 out of 16 local authorities.

47. Respondents who favoured further action were asked what action would be required. The most frequently selected of the policy options given in the paper (by half of those who answered this question, including 9 out of 14 local authorities) was that the Scottish Government should ensure sufficient local powers to allow decisions at a local level about which areas should be smoke-free. Around two-fifths favoured introducing national legislation that would define smoke-free areas and a similar number favoured other actions being taken.

48. Further comments included that national policies are needed and that voluntary or partial restrictions are unlikely to be successful. Others pointed to the need for a consistent approach to be taken across the country. An alternative suggestion was that local communities should be consulted about, and participate in, the development of policies appropriate to local circumstances. Some respondents suggested that the powers given to local authorities should be supported by a national framework or guidelines for which the local authority must have due regard when making decisions.

49. Those who thought action was required to make children's outdoor areas tobacco-free were asked which areas this should apply to. Many comments appear to suggest that respondents divided broadly into two groups: those who suggested that restrictions should apply to areas that are specifically designated as being for children; and those who suggested that restrictions should apply more widely to include areas where children are likely to be.

50. Types of child-specific outdoor areas identified included public play parks, the grounds of schools and nurseries, and outdoor areas for children provided by businesses such as pubs, restaurants, campsites and caravan parks. In terms of areas where children are likely or can be expected to be, suggestions included all ticketed venues, adventure and theme parks, all areas within public parks, sports grounds, skate parks, outside areas attached to pubs, restaurants or hotels, and beach areas which are promoted as for families.

TOBACCO CONTROL AND ELECTRONIC CIGARETTES

Age verification policy ('Challenge 25') for the sale of tobacco and e-cigarettes

51. The Scottish Government proposes that there will be a requirement for retailers to challenge the age of any person who wishes to buy tobacco or e-cigarettes and who appears to be under the age of 25. The majority of those answering the question (75%) agreed with the introduction of the Challenge 25 approach for e-cigarettes and tobacco. A majority (76%) also agreed that penalties should be the same as for selling tobacco to someone aged under 18.

Unauthorised sales by under 18 year olds for tobacco and e-cigarettes

52. It was proposed in the consultation paper that sales of tobacco and non-medicinal e-cigarettes and refills by a person under the age of 18 should be authorised by an adult over the age of 18. A large majority of those answering the question (87%) agreed with this proposal. This clear majority agreeing applied across all respondent groups.

53. Respondents were asked who should be able to authorise an under 18 year old to make the sale. Around a third suggested an adult in a supervisory role or specifically a manager or shift supervisor. Around a quarter simply suggested an adult. Other suggestions included the person who has registered the premises or that the arrangements should mirror those for tobacco and/or alcohol.

54. In line with the existing offence of selling tobacco products to someone under age 18, the paper proposed that any new offence would be liable on summary conviction to a fine not exceeding level 4 on the standard scale. Amongst those who answered a question on this there was a very high level of support for the proposed arrangements, with 96% supporting the proposed penalty and 98% the proposed enforcement arrangements.

EQUALITIES, BUSINESS AND REGULATORY CONSIDERATIONS

Equalities considerations

55. Respondents were asked what issues or opportunities the proposed policy changes in the consultation paper raise for people with protected equalities characteristics. A number of respondents simply stated that the proposals raised no issues or opportunities. Other suggested that all would benefit from the changes or that they would particularly benefit people who smoke or those who use e-cigarettes.

56. In terms of groups of people who might be positively affected by the changes, a number of respondents highlighted that those in vulnerable groups may be more likely to smoke so the proposed measures would offer opportunities to reduce health inequalities between such groups and the wider population.

57. Groups identified as requiring further protections included those at risk due to age, pregnancy or maternity. Given the association between higher smoking rates and some equalities groups, the need to consider whether new regulations may unintentionally stigmatise or otherwise constrain already vulnerable groups was highlighted. Suggestions for groups who would or could be adversely affected included those with a disability, smokers staying in hospital, and the Roma and traveller communities in the event of a ban on smoking in vehicles.

58. Suggestions for how any negative impacts could be minimised included ensuring that any changes are widely publicised (e.g. through the mass media); ensuring that appropriate health education and information are available in a range of formats, including formats appropriate to protected characteristics groups; and considering how physical accessibility issues, such as those associated with restricting smoking in NHS grounds, could be overcome.

Business and Regulatory Considerations

59. The final section of the consultation paper looked at the possible business and regulatory impacts of the proposals. A partial Business and Regulatory Impact Assessment (BRIA) was appended to the paper. Respondents were asked for their assessment of the likely financial or other impacts of each of the paper's proposals on themselves or their organisation.

60. Some of those who commented indicated that the proposals would have no impact on them or their organisation. Otherwise, respondents generally anticipated only limited impacts associated with the proposals on: age restriction for e-cigarette sales; the proxy purchase of e-cigarettes; smoking in cars in the presence of persons aged under 18; smoke-free outdoor areas for children and families; and Challenge 25 for tobacco and e-cigarette sales.

61. However, some respondents suggested that other proposals could have significant impacts for the e-cigarette industry and retail sector. These were the regulation of the domestic advertising of e-cigarettes and the requirement for retailers to register to sell e-cigarettes. The introduction of national legislation for smoke-free NHS grounds was also identified as having significant financial and business implications for the NHS and its partner organisations.

62. In terms of other financial implications likely to arise from the proposals, the most frequently identified was the potential for significant savings for NHS services resulting from reductions in smoking and in children's exposure to second-hand smoke.

63. Views were also sought on the necessary lead-in times prior to implementation of the measures and on how the public should be informed about any changes. It was suggested that there is no need to delay implementation of the proposals relating to age restrictions for e-cigarettes and refills. Those commenting on specific proposals suggested a lead-in time of 6-12 months for proposals on smoking in cars and noted more generally that lead-in times could be shorter for proposals which would not require legislative change. Some of those commenting on timescales suggested that lead-in times take account of the schedule for implementation of the EU Tobacco Products Directive. More generally, and in terms of the proposals overall, around half suggested that the proposals are implemented as soon as possible or within 12 months.

64. In terms of an appropriate approach to communication, suggestions included that a large scale public information campaign would be required. Specific suggestions included media campaigns and leafleting of homes.