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

2 Electronic Cigarettes

2.1 The first section of the consultation paper looked at possible policy approaches to the regulation of e-cigarettes. This included questions relating to an age restriction for e-cigarette sales, domestic advertising and promotion of e-cigarettes, a requirement for retailers of e-cigarettes and refills to be registered centrally, and the use of e-cigarettes in enclosed public spaces.

2.2 E-cigarettes are currently regulated as consumer products although it is likely that in 2016 there will be products which will be licensed as medicines by the Medicines and Healthcare Products Regulatory Agency (MHRA). Medicines regulation is undertaken at the UK level and outwith the competence of the Scottish Parliament. The policy proposals in the consultation document would not apply to e-cigarettes with a medicines licence.

Age restriction for e-cigarettes

2.3 The Scottish Government has publicly committed to introducing legislation that will restrict access to e-cigarette devices and refills by those aged under 18. This would bring the sale of e-cigarettes in line with other age-restricted products including alcohol, tobacco and solvents.

2.4 If introduced, proof of age requirements and enforcement would be consistent with other age-restricted products. In line with tobacco sales legislation, the Scottish Government proposes that sales of e-cigarette devices and refills from self-service vending machines should be banned. It is suggested that the offence of selling an e-cigarette to someone under 18 would be liable on summary conviction to a fine not exceeding level 4 on the standard scale. If an offence were also to be applied to a person aged under 18 purchasing an e-cigarette, the fine would not exceed level 1 on the standard scale. Both fines are consistent with tobacco legislation.

Question 1: Should the minimum age of sale for e-cigarette devices, refills (e-liquids) be set at 18?

2.5 A total of 163 respondents answered this question and a breakdown by respondent type is set out in Table 2 below.

2.6 A large majority of those who answered the question (88%) agreed that the minimum age for the sale of e-cigarette devices and refills should be set at 18. All but one of the group respondents answering the question agreed, as did 76% of individual respondents.

2.7 Although the consultation paper did not ask for written comments at Question 1, 30 respondents did make a comment. This included 26 respondents who agreed with the proposal, one who disagreed, and 3 respondents who had not answered Question 1.

2.8 Respondents supporting the proposal most commonly suggested that the health risks and addictive properties of nicotine, including potentially negative developmental impacts for adolescents, made the case for preventing under 18s from accessing e-cigarettes. The potential for e-cigarettes to possibly re-normalise smoking behaviour or act as a 'gateway' to tobacco use was also suggested.

Table 2: Question 1 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	9	-	2	11
General Retail or Pharmacy	9	-	-	9
Health Body or Partnership	19	-	-	19
Local Authority	16	-	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	24	-	1	25
Other	4	1	1	6
Groups (Total)	(87)	(1)	(6)	(94)
Individuals	57	18	3	78
TOTAL	144	19	9	172
Percentage	84%	11%	5%	100%
Percentage of those responding	88%	12%	-	100%

2.9 A range of other points raised by those who supported the proposal, included:

• An age of sale limit of 18 would be consistent with current legislation for the sale of alcohol and tobacco and, as such, would be clearer for consumers and retailers. Ensuring a consistent approach across the UK (with proposals for an age of sale limit of 18 being proposed for England and Wales) was also noted as a positive.
• Two tobacco industry respondents highlighted that established practice already seeks to ensure that e-cigarettes are not marketed to or accessed by under 18s. However a small number of respondents, including three local authorities and one professional body, suggested that voluntary measures have failed to prevent under 18s from accessing e-cigarettes, and that legislation is required.
• The potential benefits of e-cigarettes for smokers aged under 18 as a smoking cessation aid was emphasised by some who otherwise supported the proposal. It was suggested that under 18s' use of e-cigarettes should be permitted where this is for 'harm reduction' purposes or as a form of Nicotine Replacement Therapy (NRT).
• A third sector representative suggested that awareness-raising around the potential benefits and risks of e-cigarettes would be required alongside age of sale legislation, to ensure that their potential for harm reduction is realised for current smokers.

2.10 One individual respondent who disagreed with a minimum age of sale of 18 for e-cigarettes suggested that e-cigarettes should be available to under-18s as harm reduction products. This point was also referenced by two individuals who did not answer Question 1, both of whom suggested that e-cigarettes should be available to under-18s when used for smoking cessation or for harm reduction purposes.

Question 2: Should age of sale regulations apply to:

a. only e-cigarette devices and refills (e-liquids) that contain nicotine or are capable of containing nicotine, or

b. all devices/refills (e-liquids) regardless of whether they contain or are capable of containing nicotine?

2.11 A total of 144 respondents answered this question and a breakdown of responses is set out in Table 3.

Table 3: Question 2 - Response by Respondent Type

Respondent Type	a	b	N/A	Total
Academic Group	-	4	-	4
E-cigarette Industry or Tobacco Industry	-	9	2	11
General Retail or Pharmacy	1	7	1	9
Health Body or Partnership	2	17	-	19
Local Authority	1	15	-	16
Other Public Body	1	1	2	4
Third Sector or Professional Body	2	18	5	25
Other	2	3	1	6
Groups (Total)	(9)	(74)	(11)	(94)
Individuals	20	41	17	78
TOTAL	29	115	28	172
Percentage	17%	67%	16%	100%
Percentage of those responding	20%	80%	-	100%

2.12 The majority of those answering the question (80%) believed 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.

2.13 Although the consultation paper did not ask for comment at Question 2, 25 respondents did provide a comment. Of these, 16 had supported the regulations applying to all devices and 3 had supported the regulations applying only to e-cigarette devices that contain nicotine, and 6 had not answered Question 2 directly.

2.14 A small number of the comments simply reiterated the respondent's position on the proposals at Question 2. However, others made a range of points in support of their view. For those in favour of restrictions applying to all e-cigarette devices and refills, these included:

• It would be difficult to formulate clear definitions which distinguished between nicotine and non-nicotine e-cigarettes and which would take account of possible future product developments. This included reference to the sale of non-nicotine e-cigarettes with user-replaceable parts which allow modification for use with nicotine products.
• The risks of non-nicotine devices and liquids are not yet known.
• Non-nicotine devices could potentially act as a 'gateway' to nicotine or tobacco use, and/or normalise smoking behaviour. This was highlighted with particular reference to devices with a cigarette-like appearance.

2.15 A small number of those commenting were in favour of restrictions applying only to devices and refills capable of containing nicotine (including a local authority, general retail and other public body respondent). The main points raised by these respondents were:

• Applying age restrictions only to devices capable of containing nicotine would allow for clearer distinctions to be drawn. A general retail respondent suggested that it would be difficult to develop a 'future proof' definition which did not reference delivery of nicotine.
• Age restrictions should reflect the harm caused by the products and, as such, should apply only to devices and refills capable of containing nicotine.
• Age restrictions proposed for England and Wales apply only to devices and refills capable of containing nicotine and cross-border consistency would be advantageous. This point was also made by one third sector representative who did not answer Question 2.

Question 3: Whom should the offence apply to?

a. the retailer selling the e-cigarette

b. the young person attempting to purchase the e-cigarette

c. both

2.16 A total of 145 respondents answered this question relating to the offence of selling an e-cigarette to an under-18 and a breakdown by respondent type is set out in Table 4 below.

2.17 The majority of those answering the question (57%) believed that the offence should apply to both the retailer and the young person. A further 41% thought that the offence should apply to the retailer alone and only 2% of those answering thought the offence should apply solely to the young person. This balance of views was very similar across groups and individual respondents as a whole, but differed by some specific respondent types. The majority of local authority, health body, general retail or pharmacy and third sector or professional body representatives favoured the offence applying to both retailer and young person. All academic bodies and the majority of 'other' group respondents favoured the offence applying to the retailer only.

Table 4: Question 3 - Response by Respondent Type

Respondent Type	a	b	c	N/A	Total
Academic Group	4	-	-	-	4
E-cigarette Industry or Tobacco Industry	4	-	5	2	11
General Retail or Pharmacy	3	-	5	1	9
Health Body or Partnership	7	-	12	-	19
Local Authority	4	-	12	-	16
Other Public Body	1	-	1	2	4
Third Sector or Professional Body	8	-	12	5	25
Other	3	1	1	1	6
Groups (Total)	(34)	(1)	(48)	(11)	(94)
Individuals	26	2	34	16	78
TOTAL	60	3	82	27	172
Percentage	35%	2%	48%	16%	100%
Percentage of those responding	41%	2%	57%	-	100%

2.18 Although the consultation paper did not ask for comments at Question 3, 23 respondents did make a comment: of these 15 had supported the offence applying to both the retailer and young person and 8 had supported the offence applying only to the retailer.

2.19 Comments from those who supported the offence applying to both the retailer and the young person most commonly made reference to ensuring consistency with legislation relating to tobacco products. These respondents thought that consistency across e-cigarette and tobacco products would provide clarity for retailers and the public.

2.20 A small number of respondents indicated that, while in favour of the offence applying to both the retailer and purchaser, they were nevertheless concerned about the potential for large numbers of young people to be criminalised. Some of these suggested that the primary focus of enforcement should be on prosecuting the retailer, rather than the purchaser. A general retail representative supported the lesser penalty for attempted purchase outlined in the consultation paper^[5], as a proportionate approach which places greater emphasis on the responsibility of purchasers of age-restricted products than is currently the case for tobacco products^[6].

2.21 Those in favour of the offence applying only to the retailer included two third sector or professional body respondents who had expressed opposition to an offence applying to young people seeking to purchase tobacco or e-cigarettes. An 'other public body' respondent also made reference to consistency with tobacco legislation, suggesting that the liability for the offence should apply to the retailer^[7].

Question 4: Should sales of e-cigarette devices and refills (e-liquids) from self-service vending machines be banned?

2.22 A total of 163 respondents answered this question and a breakdown by respondent type is set out in Table 5.

Table 5: Question 4 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	3	6	2	11
General Retail or Pharmacy	7	-	2	9
Health Body or Partnership	19	-	-	19
Local Authority	16	-	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	24	-	1	25
Other	3	2	1	6
Groups (Total)	(78)	(8)	(8)	(94)
Individuals	50	27	1	78
TOTAL	128	35	9	172
Percentage	74%	20%	5%	100%
Percentage of those responding	79%	21%	-	100%

2.23 The majority answering the question (79%) agreed that sales of e-cigarette devices and refills from self-service vending machines should be banned. A large majority of group respondents supported this view (91% of those answering) including all academic group, health body, local authority, other public body, general retail or pharmacy, and third sector or professional body respondents. The 8 group respondents who disagreed with a ban on vending machine sales of e-cigarette devices included 3 e-cigarette industry, 3 tobacco industry and 2 'other' group respondents. A majority of individual respondents agreed with a ban (65%).

2.24 Although the consultation paper did not ask for comments at Question 4, 25 respondents provided written comment: 20 of these had agreed with a ban and 5 had disagreed.

2.25 Those who supported a ban on the sale of e-cigarettes from vending machines most commonly referred to difficulties in ensuring robust age verification for such sales. Those raising this issue included two local authority respondents who suggested that vending machine sales could be permitted if age verification could be implemented.

2.26 Those in favour of a ban on sale of e-cigarettes from vending machines also highlighted the following:

• A ban on the sale of e-cigarettes from self-service vending machines would be consistent with tobacco legislation, with the lack of robust age verification having been accepted as a basis for a ban on tobacco vending machine.
• One e-cigarette industry respondent suggested that an exemption should be allowed for vending machines in venues where under-18s are prohibited. One of those opposing a ban (also an e-cigarette industry respondent) made the equivalent suggestion.

2.27 Of the 5 respondents who opposed a ban on e-cigarette vending machines sales and made further comment at Question 4, four e-cigarette industry or tobacco industry respondents suggested that access to vending machines should be controlled through age verification mechanisms.

Question 5: Should a restriction be in place for other e-cigarette accessories?

2.28 A total of 153 respondents answered this question and a breakdown of responses by respondent type is set out in Table 6.

Table 6: Question 5 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	1	-	4
E-cigarette Industry or Tobacco Industry	2	7	2	11
General Retail or Pharmacy	3	3	3	9
Health Body or Partnership	18	1	-	19
Local Authority	11	4	1	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	14	6	5	25
Other	3	2	1	6
Groups (Total)	(55)	(24)	(15)	(94)
Individuals	25	49	4	78
TOTAL	80	73	19	172
Percentage	47%	42%	11%	100%
Percentage of those responding	52%	48%	-	100%

2.29 Views were divided on whether there should be a restriction on other e-cigarette accessories; 52% believed there should be a restriction, and 48% disagreed. The majority of group respondents believed that there should be a restriction (70% of those answering) including the majority of academic group, health body, local authority, other public body and third sector or professional body respondents. General retail and pharmacy representatives were evenly divided on this issue and a majority of e-cigarette industry or tobacco industry respondents disagreed with a restriction on other e-cigarette accessories. The majority of individual respondents also disagreed with such a restriction (66%).

Question 6: If you answered 'yes' to question 5, which products should have restrictions applied to them?

2.30 Ninety five respondents answered Question 6. Of those commenting, 78 favoured restrictions, 14 opposed restrictions and 3 had not answered Question 5.

2.31 Those who had favoured restrictions for other e-cigarette accessories raised a range of points in support of their view, including:

• E-cigarette accessories have the potential to effectively promote e-cigarette use and/or normalise smoking behaviour. Those highlighting this potential included 3 health body respondents.
• It will be important for any definition of 'e-cigarette accessories' to be formulated carefully to ensure it captures any new products developed. Academic group, health body, local authority and third sector or professional body respondents were amongst those raising this issue.

2.32 In terms of the specific types of e-cigarette accessories to which restrictions should apply, most of those in favour of restrictions thought they should apply to all e-cigarette accessories. The 65 making this suggestion were: 18 individual; 16 health body; 10 local authority, 9 third sector or professional body; 3 academic group; 3 general retail or pharmacy; 3 other group; 2 e-cigarette industry or tobacco industry respondents; and 1 other public body respondent.

2.33 Some of those favouring restrictions being applied to all e-cigarette accessories referred to specific products and component parts, including batteries and charging accessories, atomisers, cartridges, replacement parts, covers and cases, holders and lanyards. Others suggested how any restrictions could be framed - for example, to apply to products used to operate e-cigarettes or to products which encourage the use of e-cigarettes.

2.34 A small number of respondents (including third sector, local authority and individual respondents) included a specific list of products to which restrictions should apply, sometimes stating that restrictions should apply only to these products. Different respondents offered different suggestions and the products identified encompassed:

• Cartridges.
• Tanks, atomisers, cartomisers and clearomisers.
• E-liquid diluents.
• Chargers, variable voltage kits, pass-throughs and drop in modules.
• Coils.
• Drip tips.
• Wicking materials.

2.35 The 14 respondents to Question 6 who opposed restrictions included 7 individuals, 4 third sector or professional body, 2 e-cigarette industry representatives and 1 academic group respondent. These tended to restate their opposition, with some noting that restrictions should only apply to e-cigarettes and liquids/refills or specifically to products containing nicotine. They also referred to the broad range of e-cigarette accessories available, and a small number of respondents noted that they include products not solely for use with e-cigarettes (e.g. batteries, cotton wool). One general retail respondent (who had not answered Question 5) noted that the proposals for England and Wales do not extend to other e-cigarette accessories, and that there may be benefit in the approach being consistent across the UK.

Proxy purchase for e-cigarettes

2.36 The Scottish Government proposes that it would be an offence for anyone aged 18 and over to purchase an e-cigarette to give it to someone under the age of 18; this is known as 'proxy purchasing'. The consultation paper notes that it is already an offence to proxy purchase tobacco and suggests that the proxy purchase offence in relation to e-cigarettes should be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Question 7: Should the Scottish Government introduce legislation to make it an offence to proxy purchase e-cigarettes?

2.37 A total of 163 respondents answered this question and a breakdown by respondent type is set out in Table 7 below.

2.38 The large majority of those answering the question (78%) agreed that the Scottish Government legislate to make it an offence to proxy purchase e-cigarettes. Nearly all group respondents answering the question supported this view (97%) including all academic group, e-cigarette industry or tobacco industry, health body, local authority, other public body, general retail or pharmacy and third sector or professional body respondents. Individuals were more divided: 57% agreed with the introduction of such legislation and 43% disagreed.

Table 7: Question 7 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	9	-	2	11
General Retail or Pharmacy	8	-	1	9
Health Body or Partnership	18	-	1	19
Local Authority	16	-	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	23	1	1	25
Other	3	2	1	6
Groups (Total)	(83)	(3)	(8)	(94)
Individuals	44	33	1	78
TOTAL	127	36	9	172
Percentage	74%	21%	5%	100%
Percentage of those responding	78%	22%	-	100%

2.39 Although the consultation paper did not ask for comments at Question 7, 27 respondents provided additional comment: 21 of these had agreed with the introduction of a proxy purchase offence and 6 had disagreed.

2.40 Comments made by those supporting the proposal referred most frequently to its importance as part of the wider approach to preventing under-18s from accessing e-cigarettes (for example, in combination with age of sale restrictions). Those raising this issue included a general retail respondent who noted that the legislation would strengthen the hand of retailers who seek to prevent e-cigarettes from getting into the hands of children.

2.41 Other points raised by those in favour of the proposals included:

• Introduction of a proxy purchase offence would be consistent with proposals for England and Wales and also bring regulation of e-cigarettes into line with alcohol and tobacco sales.
• Proxy purchase legislation would help to reinforce the message that adults who buy e-cigarettes also have a responsibility for restricting young people's access to these products.
• Proxy purchase is a particularly challenging area for retailers in terms of identifying and preventing attempted purchase and any legislation should be supported by multi-agency working to reduce attempted proxy purchase.

2.42 Of the 6 respondents commenting who opposed a proxy purchase offence, 5 noted that they did not wish to see legislation which prevents adults from purchasing e-cigarettes as smoking cessation aids for young people (including 4 individuals and 1 third sector respondent). These respondents suggested that e-cigarettes had a potentially important harm reduction role for smokers across all ages, and some noted that other forms of nicotine replacement therapy are available to smokers from 12 years of age.

Domestic advertising and promotion of e-cigarettes

2.43 The Scottish Government sought views on what forms of domestic advertising and promotion of e-cigarettes, if any, should be regulated in Scotland. The paper described the ban on tobacco advertising under the Tobacco Advertising and Promotion Act 2002 which was fully implemented with a ban on displays in all outlets which sell tobacco to the general public coming into force by 1 April 2015. The consultation paper notes that the European Tobacco Products Directive (TPD) will ban all forms of advertising and promotion of e-cigarettes which have a cross-border effect, with implementation in member states from May 2016. Referencing concerns about the use of e-cigarettes by young people and the impacts their use might have on wider public health, the consultation paper invited views on whether the Scottish Government should regulate domestic advertising and promotion which would not be captured by the TPD and which forms of advertising and promotion should be regulated. Medicines are subject to a separate UK-wide regulatory regime which includes their marketing and therefore would not be subject to any restrictions or regulations which the Scottish Government introduced.

2.44 Also of relevance to the domestic advertising and promotion of e-cigarettes, the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) published new non-statutory advertising rules for e-cigarettes during the consultation period.^[8] The new rules came into effect on 10 November 2014. A number of consultation respondents referenced these in their responses to questions 8 to 13.

Question 8: Should young people and adult non-smokers be protected from any form of advertising and promotion of e-cigarettes?

2.45 A total of 159 respondents answered this question and a breakdown by respondent type is set out in Table 8.

Table 8: Question 8 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	5	1	5	11
General Retail or Pharmacy	5	3	1	9
Health Body or Partnership	18	-	1	19
Local Authority	15	1	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	22	1	2	25
Other	3	2	1	6
Groups (Total)	(74)	(8)	(12)	(94)
Individuals	42	35	1	78
TOTAL	116	43	13	172
Percentage	67%	25%	8%	100%
Percentage of those responding	73%	27%	-	100%

2.46 The majority of respondents (73% of those answering the question) favoured young people and adult non-smokers being protected from any form of e-cigarette advertising and promotion. A large majority of group representatives (89% of those answering) were of this view, and there was no respondent group in which the majority of respondents were not in favour. As at Question 7, the individuals who answered this question were more divided, with 55% in favour of young people and adult non-smokers being protected from any form of e-cigarette advertising and promotion, and 45% of the opposing view.

2.47 Although the consultation did not specifically invite comments at this question, 35 respondents did make a comment. Twenty three of these had been in favour of protections at Question 8, 6 had been opposed and 6 had not answered the question.

2.48 Those in favour sometimes suggested that advertising of e-cigarettes should be targeted at existing smokers and users of nicotine-containing products. These respondents suggested that the extent of any further controls should reflect the need to protect young people and non-smokers, whilst also taking account of the potential benefits for smokers who use e-cigarettes as a means to reduce their tobacco use. An e-cigarette industry respondent also suggested that any regulatory approach should take account of the e-cigarette industry's legitimate business interests.

2.49 Those who believed that young people and non-smokers should be protected from any form of e-cigarette advertising also highlighted specific concerns about the potential negative impact of advertising on public health. Those raising these concerns included a small number of third sector respondents, individuals and a local authority representative whose particular concern was around the potential for e-cigarette advertising to re-normalise smoking behaviour. However, a small group of e-cigarette industry or tobacco industry and general retail respondents suggested that this was a minimal risk. One third sector respondent suggested that research into the impact of e-cigarette advertising on perceptions amongst young people, smokers and non-smokers is required. Finally, 3 third sector or professional body respondents also raised concerns about some current advertising using channels and techniques likely to appeal to young people.

2.50 Those who had not favoured protections at Question 8, or had not answered the question, included 4 group respondents who supported the idea that e-cigarette advertising should not be targeted at young people and non-smokers, but who did not think additional regulation was required beyond the TPD and the CAP and BCAP codes (2 e-cigarette industry or tobacco industry respondents, 2 general retail respondents). Two general retail respondents suggested that such regulation would be disproportionate, particularly if age restrictions and proxy purchase restrictions were to be introduced. These respondents, along with 2 individuals, also suggested that further restrictions on e-cigarette advertising could limit the potential benefits of e-cigarettes from being realised.

Question 9: In addition to the regulations that will be introduced by the Tobacco Products Directive do you believe that the Scottish Government should take further steps to regulate domestic advertising and promotion of e-cigarettes?

2.51 A total of 160 respondents answered this question and a breakdown of responses by respondent type is set out in Table 9.

Table 9: Question 9 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	2	7	2	11
General Retail or Pharmacy	4	5	-	9
Health Body or Partnership	18	-	1	19
Local Authority	15	1	-	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	19	3	3	25
Other	2	3	1	6
Groups (Total)	(65)	(19)	(10)	(94)
Individuals	41	35	2	78
TOTAL	106	54	12	172
Percentage	62%	31%	7%	100%
Percentage of those responding	66%	34%	-	100%

2.52 The majority of those answering the question (66%) believed that further regulation of domestic advertising and promotion of e-cigarettes is required, in addition to the cross-border restrictions to be introduced by the Tobacco Products Directive. A larger majority of group respondents supported this view (77% of those answering), including all academic group, health body and other public body respondents. General retail or pharmacy respondents were relatively evenly divided on this issue and most e-cigarette industry or tobacco industry respondents opposed additional regulation of e-cigarette advertising. Individuals were divided, with 54% in favour of, and 46% opposed to, further action by the Scottish Government.

Question 10: If you believe that regulations are required, what types of domestic advertising and promotion should be regulated?

a. Bill boards

b. Leafleting

c. Brand-stretching (the process of using an existing brand name for new products or services that may not seem related)

d. Free distribution (marketing a product by giving it away free)

e. Nominal pricing (marketing a product by selling at a low price)

f. Point of sale advertising (advertising for products and services at the places where they were bought)

g. Events sponsorship with a domestic setting

2.53 A total of 106 respondents answered this question and a breakdown by respondent type is set out in Table 10 below. Respondents were invited to select as many options as they wished from the seven forms of domestic marketing listed above.

Table 10: Question 10 - Response by Respondent Type

Respondent Type	ALL	a	b	c	d	e	f	g	N/A	Base
Academic Group	2	2	2	3	4	2	2	3	-	4
E-cigarette Industry or Tobacco Industry	1	1	1	2	1	1	1	2	9	11
General Retail or Pharmacy	4	4	4	4	4	4	4	4	5	9
Health Body or Partnership	17	18	17	18	18	18	17	17	1	19
Local Authority	11	15	15	14	14	14	13	15	1	16
Other Public Body	1	1	1	1	1	1	1	1	3	4
Third Sector or Professional Body	13	17	16	17	17	16	13	18	7	25
Other	1	2	2	2	2	2	1	2	4	6
Groups (Total)	(50)	(60)	(58)	(61)	(61)	(58)	(52)	(62)	(30)	(94)
Individuals	30	38	39	37	41	37	33	39	36	78
TOTAL	80	98	97	98	102	95	85	101	66	172
Percentage	47%	57%	56%	57%	59%	55%	49%	59%	38%	100%
Percentage of those responding	75%	92%	92%	92%	96%	90%	80%	95%	-	100%

2.54 The majority of respondents who answered this question (75%) thought that regulation is required in relation to all of the types of domestic advertising listed. This included 78% of group and 71% of individual respondents. Amongst group respondents, the majority of health body, local authority, other public body, general retail or pharmacy and third sector or professional body respondents thought that regulation should apply to all the types of advertising listed. The majority of e-cigarette industry or tobacco industry representatives did not select any types of advertising to which additional regulations should apply. This correlated with these respondents' disagreement with additional regulations in their answers to Question 9.

2.55 Although the consultation did not specifically invite comments at Questions 9 and 10, 30 respondents commented at either or both questions. This included 16 who supported additional regulation, 12 who did not and 2 respondents who did not answer Question 9.

2.56 The 17 respondents who supported additional controls were 6 third sector or professional body, 5 local authority, 2 e-cigarette industry or tobacco industry, one academic group, one health body, one 'other' group respondent and one individual respondent.

2.57 Many of their comments pointed to specific types of advertising for which regulation could be required. These included brand stretching, events sponsorship, free distribution and point of sale advertising. The small number of respondents referencing point of sale advertising were divided between those who felt this should be permitted (two local authority and one 'other group' respondents), and those who wished to see restrictions on this form of advertising (two local authorities and one professional body).

2.58 Other comments referenced broader issues or principles relating to the regulation of e-cigarette advertising. These included: the need to ensure that e-cigarette advertising does not use channels likely to appeal to young people; that advertising should target current smokers and present e-cigarettes as an alternative to tobacco use; and that advertising should not include designs or images that do not clearly distinguish between e-cigarettes and tobacco cigarettes. A small number of respondents also suggested that regulation of e-cigarette advertising should be consistent with that applied to tobacco products.

2.59 The 12 respondents who did not support additional controls included 4 e-cigarette industry or tobacco industry, 3 individual, 2 general retail, 2 third sector and one 'other' group respondent. The majority of these respondents were of the view that the CAP/BCAP advertising rules represent a proportionate approach to control of domestic advertising, taking account of the potential benefits of e-cigarettes for reducing tobacco use. Some suggested amendments to CAP and BCAP rules. On this issue, one third sector respondent who supported further regulation suggested that advertising activity should be monitored until the Tobacco Products Directive is implemented.

Question 11: If you believe that domestic advertising and promotion should be regulated, what, if any, exemptions should apply?

2.60 A total of 114 respondents answered Question 11, of whom 94 had favoured further regulation (at Question 9), 19 respondents had disagreed and one respondent had not answered Question 9.

2.61 Of the 114 commenting, 29 respondents simply stated that there should be no exemptions (16 individuals, 6 health body, 3 local authority, 3 third sector or professional body, and one e-cigarette industry respondent). All but one of these 29 respondents had agreed with further regulation of advertising (at Question 9) and most supported regulation of all forms of advertising (at Question 10).

2.62 The remaining 66 who favoured additional regulation included a small number of respondents who suggested that regulation of e-cigarettes should be consistent with that for tobacco products and who supported a full ban on e-cigarette advertising. However, most of these respondents suggested that some exemptions should apply. The most frequently given reason for favouring some exemptions was the need to balance the potential for e-cigarettes to contribute to harm reduction and reduce tobacco use, whilst minimising 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 or stop tobacco use.

2.63 A small number of third sector and academic group respondents suggested that the evidence base on the impact of e-cigarette advertising remains relatively weak - for example, in relation to which forms of advertising increase appeal to non-smokers and young people. This included the recommendation which had been made as a comment on Question 10 that, whatever decision is taken on the regulation of e-cigarette advertising, advertising activity should be monitored until the introduction of the Tobacco Products Directive and while the market continues to develop.

2.64 In terms of exemptions from regulation, suggestions included some very specific cases or examples. Broadly, these related either to the nature of the product being advertised, or to the form and content of the advertising.

• Suggested exemptions in relation to the nature of the product being advertised were:
  • Products licenced by the Medicines and Healthcare Products Regulatory Agency for medicinal use and as smoking cessation aids. This was the single most frequently suggested exemption, mentioned by 32 respondents.^[9]
  • Modern e-cigarette devices that could not be confused with, or create an association with, conventional cigarettes.
  • Products using flavours that will not appeal to young people, but may encourage acceptance by current smokers as a smoking cessation aid.
  • Reference to the exclusions for tobacco products set out in the Tobacco Advertising & Promotions Act 2002 and the Tobacco & Primary Medical Services Act 2010. This included examples of communication for trade/commercial purposes and requested or incidental product displays.
• Suggested exemptions in relation to the form and content of the advertising approach and materials were:
  • Only allow advertising that promotes e-cigarettes as a smoking cessation aid, targeted at current smokers and using an approach that will not appeal to young people. This included reference to the CAP and BCAP codes. A small number of respondents suggested that advertisements should be 'simple' and 'plain' in their design, focus on providing information about the product, and ensure that no association is made with positive images or lifestyles.
  • Exemption for point of sale advertising, particularly where advertised as a smoking cessation aid.
  • Exemption for billboards where not in the vicinity of venues for young people, such as schools or playgrounds.
  • Exemption for nominal pricing.
  • Exemption for advertising at events or activities that do not principally appeal to young people.
  • Exemption for trade advertising to retailers through channels not freely available to members of the public, and where advertising encourages use as a form of Nicotine Replacement Therapy (NRT).

2.65 The 19 respondents who disagreed with additional regulation of e-cigarette advertising (10 individuals, 6 e-cigarette industry or tobacco industry, 2 general retail respondents and one 'other' group respondent) tended to re-state their opposition and expand on their reasons for opposing further regulation.

Question 12: Are you aware of any information or evidence that you think the Scottish Government should consider in relation to regulating domestic adverting in relation to impacts on children and adults (including smokers and non-smokers)?

2.66 A total of 116 respondents commented at Question 12. This included 74 of those who favoured additional regulation (based on their response at Question 9), 40 who did not and 2 who did not answer Question 9.

2.67 Of the 116 respondents who commented, 26 stated simply that they were not aware of relevant information or evidence, primarily individuals and local authority respondents (11 and 8 respondents respectively).

2.68 However, a broad range of information or evidence was cited, including evidence and research from other countries. An overview of the main points raised is set out below. It should be noted that inclusion in this report does not imply any judgement (by the Scottish Government or report authors) as to the validity or the strength of the evidence cited. A full list of references cited by respondents is presented at Annex 2.

2.69 A number of comments referred to the limited evidence base around the public health impact of e-cigarettes, and advertising of e-cigarettes in particular. This issue was most frequently raised by those who supported further regulation of e-cigarette advertising and included reference to the rapid development of the industry, and the extent to which the structure of the e-cigarette market and the role of advertising continue to evolve. This included one third sector respondent who specifically suggested that this may warrant commissioning of a review of advertising to inform decisions on any additional regulation.

2.70 However, a small number of those within this group of respondents suggested that, although the evidence base is limited in relation to e-cigarettes, evidence of the harm caused by nicotine addiction and the impact of tobacco marketing in increasing tobacco use are relevant to the regulation of e-cigarette advertising. A small number of respondents also specifically recommended restrictions on e-cigarette advertising as a part of a 'precautionary approach', particularly given the limited evidence relating to the potential re-normalising of smoking behaviour.

2.71 A number of points were raised to illustrate the importance of, and challenges associated with, monitoring and ensuring compliance with any regulations. The broad range of advertising approaches and channels being used, including a particular emphasis on use of social media, was noted. A small number of respondents expressed the view that some current advertising approaches test the limits of the current regulations. More specifically, reference was made to unproven claims in some marketing in relation to the health and smoking cessation benefits of e-cigarettes, the emphasis on the growing range of flavours across the market, and the use of promotional pricing to encourage take-up.

2.72 Twenty two respondents who favoured further regulation (including health body, local authority, academic group and third sector or professional body respondents) referenced specific research studies and reviews. Key points raised by those in favour of additional regulation are summarised below.

2.73 In relation to the potential impact on adults and the wider population the evidence cited included:

• Studies showing that a comprehensive set of tobacco advertising controls can reduce consumption, but that a limited or partial set of controls has little or no effect.
• Comments questioning the robustness of studies which suggest that e-cigarettes are more effective than Nicotine Replacement Therapy as a smoking cessation aid, and reference to evidence which implies that full behavioural support via NHS stop smoking services is the most effective means of stopping smoking. This included concerns that the promotion of e-cigarettes may divert smokers away from more effective stop smoking services.
• Evidence that dual use of tobacco and e-cigarettes may prolong tobacco use if, for example, it enables smokers to manage the ban on smoking in public places when they might otherwise have attempted to stop smoking.
• Evidence that tobacco advertising and promotion have influenced smoking uptake and such an effect should be expected from e-cigarette advertising.

2.74 It was also suggested that it will be several decades before it is possible to judge the long term health effects of e-cigarette use, particularly as the design of devices and composition of liquids remain variable.

2.75 The evidence cited on the potential impact on children and young people in particular included:

• Studies showing how e-cigarette advertising can appeal to young people. This included: the potential for online advertising to reach young people; the impact of the promotion of e-cigarettes as lifestyle accessories; a focus on fruit and other flavours; and advertising before the 9pm watershed. A small number of respondents suggested that voluntary regulation had failed to protect children and young people from inappropriate advertising, including reference to recent complaints about e-cigarette adverts which break CAP and BCAP rules.
• Studies which demonstrate the growing awareness of e-cigarette products and brands amongst children and young people. These included studies showing an increase in numbers of school and college children who had tried e-cigarettes but not conventional cigarettes, and that use of e-cigarettes could be associated with a greater likelihood of intending to use conventional cigarettes.
• Evidence that tobacco advertising and promotion have influenced smoking uptake amongst young people, and a suggestion that this should be expected to apply similarly to e-cigarette advertising.
• Studies which have shown that dual use of e-cigarettes and conventional cigarettes by young smokers is not associated with an increased desire to quit.
• Studies demonstrating negative impacts of nicotine intake during pregnancy.

2.76 Respondents also raised concerns that the tobacco industry is explicitly using the ability to advertise e-cigarettes as a covert means of promoting traditional cigarettes, and a professional body respondent suggested that the evidence base on youth smoking and use of e-cigarettes as a smoking cessation aid is out of date and would be sensitive to only a large increase in youth smoking.

2.77 Of those who commented at this question, 40 had opposed additional regulation of e-cigarette advertising (at Question 9). Their comments also addressed a broad range of issues, including those from 10 respondents (primarily e-cigarette industry and individual respondents) who referenced specific studies and reviews. Key points raised by those opposed to additional regulation included that:

• There is a lack of credible evidence on the impact of e-cigarette advertising in re-normalising smoking behaviour, or on e-cigarettes acting as a 'gateway' to tobacco use.
• Studies show that e-cigarettes are safer than conventional cigarettes, and can play a positive role in reducing tobacco use as a smoking cessation aid. This included, for example, evidence that e-cigarettes are more acceptable to some current smokers than NRT, and that the majority of smokers perceive e-cigarettes as being good for public health.
• There is evidence of a generally good understanding across the population of the function of e-cigarettes, and how they compare with conventional cigarettes.
• There is evidence that sustained use of e-cigarettes remains low amongst young people, and is confined to current or ex-smokers.

Question 13: Are you aware of any information or evidence that you think the Scottish Government should consider in relation to regulating domestic adverting in relation to impacts on business, including retailers, distributers and manufacturers?

2.78 A total of 101 respondents provided a comment at Question 13, 67 of whom favoured additional regulation (based on their answer at Question 9), 33 who did not and one respondent who did not answer Question 9. However, 42 respondents (including 17 individual, 9 local authority and 5 health body respondents), stated simply that they were unaware of any relevant information or evidence for an impact on business.

2.79 Amongst those who favoured further regulation and made a more extensive comment, relatively few made reference to specific research or evidence and some (primarily individuals) suggested that the potential for regulation to have a positive impact on public health would outweigh consideration of any negative business impacts. Other points included:

• That regulation of tobacco advertising has not resulted in significant implementation costs, or a decline in sales over and above the longer-term downward trend. In relation to e-cigarettes, a small number of respondents suggested that additional regulation would ultimately lead to a fall in sales of devices that do not meet regulations, although a professional body respondent also suggested that consumers will transfer to other products.
• A suggestion from a pharmacy respondent that retailers operating UK-wide internet sites may face complexities if different advertising regulations are in place across Scotland and the rest of the UK. For example, retailers may not be able to differentiate their online displays of e-cigarette products based on a site visitor's location, but may be required to restrict purchases based on that customer's location.^[10]
• A suggestion that permitting responsible sales of e-cigarettes would be a significant benefit to retailers for whom the rapid growth in e-cigarettes has provided a vital new income stream.
• A view from a pharmacy respondent that it would be inappropriate to impose regulation on pharmacies selling licensed medicinal e-cigarettes (in a controlled environment using sales protocols) which related to:
  • Under 18 sales and the 'Challenge 25' policy
  • Proxy sales
  • Sales by staff under 18
  • Point of sale materials
  • Requiring them to join the Tobacco Retailers Register.
• A view that additional regulation should have the effect of preventing e-cigarette manufacturers and distributors from selling e-cigarettes to the NHS, and in this way prevent NHS budgets being invested in the tobacco industry if the manufacturer of a future licensed e-cigarette was a subsidiary of a tobacco company.

2.80 Thirty three respondents who were opposed to additional regulation made a more extensive comment (including 18 individuals, 5 e-cigarette industry or tobacco industry, 5 general retail or pharmacy, 3 other group, 1 local authority and 1 third sector respondent). Again, relatively few of these referred to specific evidence sources and 1 tobacco industry representative suggested there is a need for the Scottish Government to undertake a full assessment^[11] of the potential effect of regulation advertising on Scottish businesses.

2.81 Other comments highlighted the significant growth in the e-cigarette industry over recent years and the contribution that promotion and advertising have made to this growth, for example by enabling small and medium enterprises to enter the market. A small number of respondents made reference to 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.

2.82 Other suggestions included that:

• Restricting the scope for advertisement and promotion could restrict innovation and consumer choice by discouraging new brands from entering the market, and potentially undermining decisions to invest in product development.
• Negative impacts on small and medium enterprises in the e-cigarette industry could undermine the ability of manufacturers and distributors to compete with the established tobacco industry. This point was raised both in relation to competition with tobacco sales and with e-cigarette companies which are owned by tobacco companies.
• Disproportionate regulation could result in illicit trade and increased importing of potentially less safe e-cigarette products.

Inclusion of electronic cigarettes on the Scottish Tobacco Retailers Register

2.83 The Scottish Government proposes the introduction of mandatory registration for the sale of e-cigarettes or refills and proposes to extend the scope of the Scottish Tobacco Retailers Register.^[12] Businesses which are already on the 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. The Scottish Government anticipated that the offence of selling without registration, or an updated registration, would be liable on summary conviction to a fine not exceeding £20,000 and/or imprisonment for a term not exceeding 6 months. This would be in line with the offence for selling tobacco without registration.

Question 14: Do you agree that retailers selling e-cigarettes and refills should be required to register on the Scottish Tobacco Retailers Register?

2.84 A total of 163 respondents answered this question and a breakdown of responses by respondent type is set out in Table 11.

Table 11: Question 14 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	1	-	4
E-cigarette Industry or Tobacco Industry	4	5	2	11
General Retail or Pharmacy	3	6	-	9
Health Body or Partnership	17	2	-	19
Local Authority	15	1	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	19	3	3	25
Other	2	3	1	6
Groups (Total)	(65)	(21)	(8)	(94)
Individuals	41	36	1	78
TOTAL	106	57	9	172
Percentage	62%	33%	5%	100%
Percentage of those responding	65%	35%	-	100%

2.85 The majority of those answering the question (65%) agreed that retailers selling e-cigarettes and refills should be required to join the Scottish Tobacco Retailers Register. A large majority of group respondents were of this view (76% of those answering) including the majority of academic group, health body, local authority, other public body and third sector or professional body respondents. Views were more mixed within the subgroups of the e-cigarette industry, the tobacco industry and general retail respondents. The majority of pharmacy representatives disagreed with the proposal.

2.86 Although the consultation paper did not ask for comments, 28 respondents made a comment at Question 14. This included 15 who supported the requirement for e-cigarette retailers to register, 12 who did not and one respondent who did not answer Question 14.

2.87 Most of the 15 respondents in favour of the requirement to register, restated their support for the rationale for this policy as set out in the consultation document. This was most commonly in relation to the potential support the Register could offer to effective implementation of the age of sale restriction and other regulations. It was also suggested that the Register could assist in developing a better understanding of the e-cigarette retail market. The latter issue was highlighted as of particular value by those who also suggested that there is little information available on the size and characteristics of the retail environment for e-cigarettes. A small number of respondents also noted the importance of maintaining and updating the Register once it is in place, particularly given the pace at which the e-cigarette market continues to develop.

2.88 Other points raised by those in favour of the requirement for e-cigarette retailers to register included:

• There is a need to distinguish between more and less harmful products. This was associated with a suggested move towards more positive licensing of tobacco retailers (similar to that for licensing of alcohol off-sales) as a stronger incentive for businesses to comply.
• One professional body suggested that, to minimise bureaucracy, there should not be a requirement for currently registered retailers to update their registration.

2.89 Those opposed to the requirement for e-cigarette retailers to register raised a number of issues, often pointing out that e-cigarettes are fundamentally different to tobacco products and should not be subject to the same regulatory requirements. Those making this point included a third sector respondent who suggested that a separate register of alternative nicotine products may be appropriate, depending on the resource implications.

2.90 Other respondents made specific reference to the potential public health benefits of e-cigarettes, including that they are safer than tobacco products, and hence the proposals set out in the consultation document would be disproportionate. These respondents (two e-cigarette industry or tobacco industry and one third sector respondents) raised concerns that a requirement for e-cigarette retailers to register could limit the extent to which potential public health benefits could be realised, either because retailers are dissuaded from selling e-cigarettes or because it would suggest to the public that e-cigarettes and tobacco are equivalent in terms of health risks.

2.91 Other points raised by those opposed to registration were:

• The Scottish Tobacco Retailers Register was introduced primarily to reduce the attractiveness and availability of tobacco to under-18s, but other approaches around age of sale regulation and advertising codes are more appropriate to limit under-18s' access to e-cigarettes. It was also noted that under-age purchase is significantly less common for e-cigarettes than for tobacco products.
• Consultation proposals would place Scottish businesses at a disadvantage compared to retailers across the rest of the UK.
• Pharmacies and retailers only stocking e-cigarettes and that hold a medical licence should be exempt from any requirement to register. The 2 pharmacy and 1 professional body respondents raising this issue noted that such retailers are subject to other regulations and controls (from the General Pharmaceutical Council and the MHRA).
• It would be disproportionate to require retailers already registered to amend their registration.

Question 15: Do you agree that the offences and penalties should reflect those already in place for the Scottish Tobacco Retailers Register?

2.92 In the consultation paper, the Scottish Government noted that it anticipated the offences and penalties for non-compliance with this policy being the same as currently applied to tobacco retail registration. A total of 155 respondents answered this question and a breakdown by respondent type is set out in Table 12.

Table 12: Question 15 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	1	-	4
E-cigarette Industry or Tobacco Industry	4	2	5	11
General Retail or Pharmacy	3	6	-	9
Health Body or Partnership	17	1	1	19
Local Authority	15	1	-	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	19	2	4	25
Other	2	3	1	6
Groups (Total)	(64)	(16)	(14)	(94)
Individuals	42	33	3	78
TOTAL	106	49	17	172
Percentage	62%	28%	10%	100%
Percentage of those responding	68%	32%	-	100%

2.93 The majority of those answering this question (68%) agreed that offences and penalties for e-cigarettes should reflect those in place for the Scottish Tobacco Retailers Register. A large majority of group respondents were of this view (80% of those answering) including the majority of academic group, e-cigarette industry 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, and the majority of pharmacy of representatives disagreed with the proposal.

Question 16: If you answered 'no', to question 15, what offences and penalties should be applied?

2.94 A total of 68 respondents provided comments at Question 16. This included 45 who had disagreed (at Question 15), 18 respondents who agreed with the proposal and 5 who had not answered the question.

2.95 The 45 who disagreed and made a comment included 3 individual respondents who agreed with the principle of requiring e-cigarette retailers to register, but disagreed with the proposals for offences and penalties. The main point raised was that the penalties should be lower in relation to e-cigarettes, including reference to this being consistent with the relative harm caused by e-cigarettes and by tobacco.

2.96 Most of those who disagreed with the proposals for offences and penalties at Question 15, also disagreed with the principle of requiring e-cigarette retailers to register (42 of 45 commenting). This included a number of respondents repeating their objection to mandatory registration. The primary view was that e-cigarettes are fundamentally different to tobacco products and that a requirement for registration could undermine potential health benefits of e-cigarettes being realised.

2.97 A number of those opposed to the proposals suggested that no penalties should apply to the sale of e-cigarettes. This view was expressed primarily by individuals, who again made reference to the potential role of e-cigarettes in reducing the harm associated with tobacco use. However, other respondents reiterated their support for penalties associated with the sale of e-cigarettes to under-18s, including e-cigarette industry or tobacco industry, third sector, health body, 'other' group respondents and individuals. Most of these respondents suggested that penalties should reflect the lesser harm associated with e-cigarettes in comparison with tobacco use, and a small number suggested specific penalties including fixed penalty notices and banning of repeat offenders.

2.98 In relation to the enforcement of offences and penalties, one pharmacy or general retailer respondent and one individual suggested that there should be no connection between offences relating to the sale of e-cigarettes and offences relating to the sale of tobacco products^[13]. A small number of pharmacy respondents also suggested that retailers stocking only e-cigarettes licensed by the MHRA should be exempt from penalties^[14].

2.99 The 18 respondents who had agreed with proposals at Question 15 primarily used their comments to reiterate their support. However, a small number raised further points in relation to the regulation of e-cigarette retailers:

• Two academic group respondents suggested that consideration be given to registration of retailers selling e-cigarettes within a proposed review of the Scottish Tobacco Retailers Register in 2015.
• One health body representative suggested that further powers are required for effective regulation. This included reference to enabling the management of the number of e-cigarette retailers in an area, managing the proximity of retailers to schools and other sensitive areas, and to prohibit sales by retailers who are not registered. A similar point was made by an individual who disagreed with proposals at Question 15.

E-cigarettes - use in enclosed public spaces

2.100 E-cigarettes are not covered by the current legislation which bans smoking in enclosed public places, although a number of organisations have introduced voluntary bans on e-cigarettes on their premises. The consultation paper stated that the Scottish Government currently has no plans to legislate and is open-minded on the question of whether to take action on this issue. It noted that there is a range of views on whether the use of e-cigarettes in enclosed public spaces should be restricted, and that there is not yet sufficient evidence to fully understand the potential impact of e-cigarettes on smoke-free legislation or the long-term health impacts of e-cigarettes on users and bystanders.

2.101 Given this, the consultation paper invited views on whether intervention is required on the use of e-cigarettes in enclosed public spaces and sought suggestions for evidence to be considered when developing future policy in this area. The paper set out possible policy approaches but did not ask about these individually.

Question 17: Do you believe that the Scottish Government should take action on the use of e-cigarettes in enclosed public spaces?

2.102 A total of 160 respondents answered this question and a breakdown by respondent type is set out in Table 13 below.

2.103 A small majority of those answering this question (58%) believed that the Scottish Government should take action on the use of e-cigarettes in enclosed public spaces. The majority of group respondents (65%) were of this view, including the majority of academic group, health body, local authority and third sector or professional body respondents. However, the majority of general retail or pharmacy and all of the e-cigarette industry or tobacco industry respondents did not think action was needed, while individual respondents were evenly divided.

Table 13: Question 17 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	1	-	4
E-cigarette Industry or Tobacco Industry	-	9	2	11
General Retail or Pharmacy	1	7	1	9
Health Body or Partnership	18	1	-	19
Local Authority	16	-	-	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	15	7	3	25
Other	1	4	1	6
Groups (Total)	(55)	(29)	(10)	(94)
Individuals	38	38	2	78
TOTAL	93	67	12	172
Percentage	54%	39%	7%	100%
Percentage of those responding	58%	42%	-	100%

Question 18: If you answered 'yes' to Question 17, what action do you think the Scottish Government should take and what are your reasons for this?

2.104 A total of 94 respondents commented at Question 18: 90 of these were of the view that the Scottish Government should take action on the use of e-cigarettes in enclosed public spaces, 3 did not support action and one had not answered the question.

2.105 The majority of those who believed the Scottish Government should take action suggested that the lack of evidence about the long-term impacts of e-cigarettes for users and bystanders gave reason for a level of concern or a degree of caution. A total of 49 of the 90 respondents who commented were of this view: 16 health bodies, 10 local authorities, 10 individuals, 9 third sector or professional body, 3 academic group and one 'other' group respondent. These respondents suggested that the Scottish Government take action as a precautionary approach, until sufficient evidence is available to provide a full understanding of the long-term impacts of the use of e-cigarettes in enclosed spaces.

2.106 The 49 respondents who supported this precautionary approach cited a number of specific concerns regarding the potential impacts of e-cigarette use in enclosed public spaces. These included:

• There is a lack of understanding about the impact for bystanders of the use of e-cigarettes in enclosed public spaces. This point was raised by 34 of the 49: 12 health body, 8 third sector or professional body, 7 local authority, 5 individual and 2 academic group respondents. Respondents noted that e-cigarettes are not 'emission free', and that research is at an early stage in terms of establishing any harmful impact on indoor air quality; particular concern was expressed in relation to those with respiratory conditions such as asthma. Some respondents (primarily individuals) were strongly opposed to the use of e-cigarettes in enclosed public spaces and did not feel that further research was required to support a ban.
• The use of e-cigarettes in enclosed public spaces has the potential to 're-normalise' smoking behaviour, particularly for children and young people. This point was raised by 26 of the 49 respondents: 8 health body, 5 local authority, 5 third sector or professional body, 4 individual, 3 academic group and one 'other' group respondent. Comments included that the current smoke-free legislation has prevented young people being exposed to smoking behaviour in public spaces and that legislation is required to limit e-cigarette use until conclusive evidence is available on the extent of any re-normalising effect. A small number of these respondents (including 2 health bodies and a local authority) also suggested there was potential for public e-cigarette use to increase the risk of e-cigarettes acting as a 'gateway' to tobacco use.
• The use of e-cigarettes in enclosed public spaces has the potential to undermine current smoke-free legislation. This issue was raised by 16 of the 49: 6 local authorities, 4 professional bodies, 3 health bodies, one academic group, one 'other' group respondent and one individual. This was most frequently connected with a concern that inconsistency in approaches to the use of tobacco cigarettes and of e-cigarettes may create confusion regarding where smoking is permitted. Respondents also suggested more practical difficulties for the enforcement of smoke-free legislation, such as businesses distinguishing between (permitted) e-cigarette use and (prohibited) smoking.
• The impact of e-cigarettes on users, and the extent to which legislation should seek to limit this use where possible. This issue was raised by 9 of the 49 who commented: 3 local authorities, 3 health bodies, 2 individuals and one professional body. Respondents noted that the nicotine delivered by e-cigarettes is highly addictive and not without some harmful impact for users. Particular reference was made to those with respiratory conditions and potential interactions of nicotine with other medicines.
• One local authority respondent suggested that there is confusion and concern amongst employers regarding the extent to which use of e-cigarettes is permissible in the workplace.

2.107 Those who thought that the Scottish Government should take action on the use of e-cigarettes in enclosed public spaces proposed a range of actions that they wished to see implemented. The majority of the 90 respondents who favoured action recommended an extension of current tobacco legislation to include e-cigarettes and in this way prohibit their use in enclosed public spaces. A total of 67 respondents favoured such an approach: 31 individuals, 15 health bodies, 11 local authorities, 6 third sector or professional bodies, 3 academic groups and one 'other' group respondent. Reference was made to World Health Organisation recommendations to prohibit the use of e-cigarettes in enclosed public spaces. There was also a suggestion that e-cigarettes holding an MHRA licence should be exempted from any prohibition.

2.108 Other respondents who were in favour of action but who did not support a ban on use in enclosed public spaces included local authority, health body, professional body and pharmacy respondents. Suggestions included:

• Developing a clear national policy position and, potentially, national guidance that recognises the difference in risk of harm associated with tobacco and e-cigarettes, while ensuring that developments in e-cigarette use do not undermine work to date in de-normalising smoking behaviour.
• Encouraging organisations to develop their own policies.
• Commissioning further research on the effects of the use of e-cigarettes in enclosed public spaces to enable policy/legislation to be based on robust evidence. The small number recommending this option suggested that prohibition may be justified, but took a view that the current evidence base could not yet support legislation.
• One individual suggested legislation to prohibit the use of e-cigarettes in a prescribed set of enclosed public spaces where there is potential for prolonged exposure, such as theatres.

2.109 The three individuals providing comment at Question 18 who were opposed to action on use of e-cigarettes in enclosed spaces, simply stated that they do not support any further action. An 'other group' respondent had not expressed a view at Question 17 but recommended that the Scottish Government develop national guidance if legislation were not to be taken forward.

Question 19: If you answered, 'no' to Question 17, please give reasons for your answer.

2.110 A total of 64 respondents commented at Question 19: 63 of these respondents did not wish to see the Scottish Government taking action on the use of e-cigarettes in enclosed public spaces and one health body respondent indicated that some of their members thought that evidence did not yet support legislation applying to e-cigarettes in enclosed public spaces.

2.111 The 63 respondents who opposed action were 36 individuals, 7 e-cigarette industry or tobacco industry respondents, 7 general retail or pharmacy respondents, 7 third sector respondents, 4 'other' group respondents, one academic group and one health body.

2.112 The most frequently given reason for opposing action was a lack of conclusive evidence to support evidence-based policy. Of the 63 respondents making comment, 42 suggested that the current evidence base was insufficient to justify legislation being extended to include use of e-cigarettes. These were 17 individuals, 7 e-cigarette industry or tobacco industry respondents, 7 third sector respondents, 6 general retail or pharmacy respondents, 3 'other' group respondents, one academic group and one health body. They were primarily concerned about a lack of evidence around the impact of e-cigarette vapour on bystanders and the risk of e-cigarette use 're-normalising' smoking behaviour:

• Most of the 42 suggested that there is insufficient evidence on the extent to which e-cigarette vapour is harmful to bystanders to warrant action. Some of these respondents went further in suggesting that current evidence shows that e-cigarette use presented no risk to bystanders.
• Most of the 42 respondents suggested there is insufficient evidence on whether e-cigarette use may 're-normalise' smoking behaviour, or act as a 'gateway' to tobacco use. In relation to concerns regarding e-cigarette use leading to the use of traditional tobacco products, a small number of respondents suggested that this was unlikely as the large majority of e-cigarette users are current or former smokers.
• One e-cigarette industry respondent referred to an open letter to the World Health Organisation from a group of academics recommending that legislation to protect bystanders from tobacco smoke should not apply to e-cigarettes.

2.113 Concern that any prohibition on e-cigarette use in enclosed public spaces would fail to recognise the relative health risks of e-cigarettes and tobacco was also a commonly cited reason for opposing Scottish Government action. This concern was raised by 20 respondents: 8 individuals, 5 e-cigarette industry or tobacco industry respondents, 3 third sector respondents, 2 general retail or pharmacy and 2 'other' group respondents.

2.114 These respondents also suggested that action to prevent the use of e-cigarettes in enclosed public spaces would undermine the potential health benefits of reduced tobacco use. This included a concern that a prohibition on use in enclosed public spaces would make e-cigarettes less accessible and attractive to current smokers. Some respondents also suggested that prohibition would force e-cigarette users to share space with current smokers, with the potential to undermine the efforts of current or former smokers who are using e-cigarettes to reduce or stop smoking.

2.115 In addition to concerns regarding the available evidence base and maximising the potential health benefits of e-cigarettes, those opposed to action on the use of e-cigarettes in enclosed spaces also highlighted the following as reasons for taking this view:

• E-cigarettes are sufficiently different to tobacco cigarettes to require a different approach in legislation. This included particular reference to e-cigarettes producing a significantly smaller volume of emissions than tobacco cigarettes, as vapour is not produced between puffs.
• The argument that e-cigarettes could re-normalise smoking behaviour is flawed or overstated. Some respondents suggested it would be inconsistent to suggest this is a concern for 'open market' e-cigarettes, that is those which are classed as consumer products, but not for e-cigarettes licensed for medicinal use. It was also suggested that it would not be possible to formulate a functional distinction between e-cigarettes and MHRA licensed devices.
• Legislation banning e-cigarette use in enclosed public spaces would be likely to receive a hostile reaction from e users and owners of public premises could face significant difficulties in implementing legislation.
• Further restrictions on the use of e-cigarettes would unduly extend the Government's influence on the private lives of individuals.

2.116 Some of the 63 respondents commenting at Question 19, and who opposed a ban on e-cigarette use in enclosed public spaces, did suggest areas where Scottish Government action may be beneficial:

• 18 of these respondents (including third sector, e-cigarette industry or tobacco industry, health body, general retail and individual respondents), suggested that employers and owners of enclosed public spaces should develop their responses. Some suggested that the Scottish Government should assist businesses by providing information and materials, or through the development of guidance to address current areas of confusion or uncertainty.
• One e-cigarette industry and one general retail respondent suggested that there may be circumstances or locations where e-cigarette use should be restricted, including education settings, facilities designed primarily for children, hospitals and healthcare settings (excepting designated areas), public transport (excepting designated areas), libraries, and petrol stations or locations where e-cigarettes may present a hazard.

Question 20: Are you aware of any evidence, relevant to the use of e-cigarettes in enclosed spaces, that you think the Scottish Government should consider?

2.117 A total of 103 respondents made a comment at Question 20; 56 of these respondents favoured action on the use of e-cigarettes in enclosed public spaces (based on their answer at Question 17), 45 did not and 2 respondents had not answered Question 17.

2.118 Of the 103, 24 respondents (20 who favoured action and 4 who opposed it), stated simply that they were unaware of any relevant information or evidence. This included 11 individuals, 5 local authorities, 3 health bodies, 2 third sector respondents, 2 general retail or pharmacy and one 'other' group respondent.

2.119 Of the others who favoured action, 36 commented on the available evidence on the use of e-cigarettes in enclosed public spaces. Some of these did not cite specific evidence sources or studies but commented more generally on the existing body of information about 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 e-cigarettes do not cause harm; reference to media reports including around fire risks; and anecdotal evidence based on personal experience and/or feedback from public sector service staff.

2.120 Seventeen respondents who favoured action on the use of e-cigarettes in enclosed public spaces (including health body, local authority, third sector or professional body, academic group and individual respondents) referenced a broad range of evidence and studies. In addition to a number of published research articles and reports from the UK and further afield, reports and briefing papers published by organisations including the World Health Organisation, Scottish Parliament Information Centre (SPICe), UK Faculty of Public Health Policy, and the US Centers for Disease Control and Prevention were highlighted.

2.121 A full list of references cited by respondents in favour of action on the use of e-cigarettes in enclosed public spaces is presented at Annex 2.

2.122 Forty one respondents who were opposed to additional regulation made a more extensive comment at Question 20. As with those who favoured action, this included some who did not cite specific evidence sources or studies. These respondents most commonly referred to limitations in the evidence base, including some who felt that the absence of conclusive evidence supported a decision not to extend tobacco legislation to include e-cigarettes.

2.123 Twenty six respondents opposed to action on the use of e-cigarettes in enclosed public spaces (including e-cigarette industry, tobacco industry, third sector, general retail, academic group and individual respondents) cited evidence and studies. These respondents also referenced an extensive range of published research articles and reports from the UK and elsewhere, including some of the materials which had been highlighted by those favouring action. In addition to research papers, these respondents also referenced reports, briefing papers and guidelines published by organisations including the World Health Organisation, National Institute for Health and Care Excellence (NICE), UK Medicines and Healthcare Products Regulatory Agency (MHRA), Action of Smoking and Health Scotland and Action on Smoking and Health UK, and the US Centers for Disease Control and Prevention.

2.124 A full list of references provided by respondents on the use of e-cigarettes in enclosed public spaces is presented at Annex 2.