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

4 Tobacco Control And Electronic Cigarettes

4.1 The third section of the consultation paper looked at policies which would apply to both tobacco and electronic cigarettes. It posed questions on two specific issues: a new age verification policy for the sale of electronic cigarettes and tobacco; and sales by under 18 year olds of tobacco and e-cigarettes.

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

4.2 In 2011 a mandatory age-verification policy was introduced for all premises selling alcohol. The schemes which apply this policy are commonly referred to as 'Challenge 25' or 'Think 25' and require the person selling alcohol to ask for photographic proof-of-age identification if the customer buying alcohol appears to be under the age of 25. Many retailers already voluntarily apply the same or a similar approach to tobacco sales.

4.3 The consultation paper proposes that there will be a requirement for retailers to challenge the age of any customer who appears to be under the age of 25. It is suggested that the penalty for the offence should be in line with that for selling tobacco or an e-cigarette to a person under the age of 18. This would mean that the offence would be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Question 38: Do you agree that retailers selling e-cigarettes, refills and tobacco should be required by law to challenge the age of anyone they believe to be under the age of 25?

4.4 A total of 153 respondents answered this question and a breakdown by respondent type is set out in Table 23.

4.5 The majority of those answering the question (75%) agreed with the introduction of the Challenge 25 approach e-cigarette and tobacco sales. A large majority of group respondents supported the proposal (88% of those who answered this question), including the majority of academic groups, health bodies, local authorities, other public bodies, third sector or professional body respondents. The majority of e-cigarette or tobacco industry respondents also agreed: the 6 respondents agreeing were 5 e-cigarette companies and one tobacco company; 2 tobacco companies disagreed. General retail or pharmacy respondents were evenly divided on the issue.

4.6 Although the consultation did not specifically invite comments at this question, 22 respondents did make a comment. Thirteen of them had agreed with the proposal, 5 had disagreed and 4 had not answered Question 38.

Table 23: Question 38 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	6	2	3	11
General Retail or Pharmacy	4	4	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	19	1	5	25
Other	3	2	1	6
Groups (Total)	(71)	(10)	(13)	(94)
Individual	43	29	6	78
TOTAL	114	39	19	172
Percentage	66%	23%	11%	100%
Percentage of those responding	75%	25%	-	100%

4.7 Comments by those who agreed with the proposal included that the approach seemed sensible, is already common practice and well understood because of its application to alcohol sales. Two local authority and one third sector respondent noted that the approach was designed, developed and promoted by the trade.

4.8 Three third sector or professional body respondents noted that it is still the case that underage smokers can sometimes purchase tobacco products. They suggested that a legal requirement to challenge anyone believed to be under 25 should help clarify the situation around such transactions and will benefit responsible retailers. They went on to suggest that the guidance around test purchasing could be simplified.

4.9 One general retail representative suggested that any new legal requirement should allow retailers to demonstrate due diligence in taking all reasonable steps to prevent under-age purchases. A local authority respondent who disagreed with the proposal also suggested recognition of due diligence, but went on to suggest that this meant it should be voluntary.

4.10 Others who disagreed with the proposal also favoured a voluntary approach. One tobacco industry and one general retailer respondent suggested that the Scottish Government should continue to encourage retailers to apply Challenge 25 voluntarily but that legislation would be inappropriate. Another tobacco industry respondent noted their support for the 'No ID, No Sale' retailer awareness campaign and the 'CitizenCard' proof-of-age scheme. They called on the Scottish Government to give greater support to existing proof-of-age schemes.

4.11 Finally, one third sector stakeholder suggested that the sale of licensed medicine products including e-cigarettes should be supplied under the supervision of a registered pharmacist and that the pharmacist selling the product should be able to use their professional judgement when deciding if it is appropriate to sell a licensed nicotine replacement product, irrespective of the age of the person^[23].

Question 39: Do you agree that the penalties should be the same as those which are already in place for selling tobacco to someone under the age of 18?

4.12 A total of 143 respondents answered this question and a breakdown by respondent type is set out in Table 24 below.

Table 24: Question 39 - 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	4	4	1	9
Health Body or Partnership	18	-	1	19
Local Authority	15	-	1	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	17	2	6	25
Other	3	2	1	6
Groups (Total)	(65)	(11)	(18)	(94)
Individual	43	24	11	78
TOTAL	108	35	29	172
Percentage	63%	20%	17%	100%
Percentage of those responding	76%	24%	-	100%

4.13 The majority of those answering the question (76%) agreed that penalties should be the same as for those selling tobacco to someone aged under 18. The majority of academic group, e-cigarette and tobacco industry, health body, local authority, other public body, third sector stakeholder and individual respondents agreed with the proposal. General retail or pharmacy representatives were again evenly divided on this issue, with those who agreed at Question 38 agreeing here, and those who had disagreed continuing to disagree.

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

4.14 The consultation paper notes that concerns have been raised that a young person under the age of 18 may be less able to refuse a sale to a young customer seeking to purchase tobacco or an e-cigarette. It is proposed such sales by a person under the age of 18 should be authorised by an adult over the age of 18. This would bring a level of consistency between sales of tobacco and e-cigarettes and the sale of alcohol.

4.15 The requirement for a sale to be authorised could require the adult who authorises the sale to be present so they can also challenge a customer who appears underage. Alternatively, the adult can authorise the young person to make sales without an adult present. The adult who authorises any sales would be liable for the offence if the young person is found to have sold tobacco or an e-cigarette to an under 18 year old. It is envisaged that the offence would apply to the person who has registered their business to sell tobacco or e-cigarettes, or to a person over 18 that has authorised the young person under the age of 18 to make the sale. Such an offence may be liable on summary conviction to a fine not exceeding level 4 on the standard scale; this is in line with the offence of selling tobacco products to someone under age 18.

Question 40: Do you agree that young people under the age of 18 should be prohibited from selling tobacco and non-medicinal e-cigarettes and refills unless authorised by an adult?

4.16 A total of 157 respondents answered this question and a breakdown of responses by respondent type is set out in Table 25.

Table 25: Question 40 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	4	-	-	4
E-cigarette Industry or Tobacco Industry	7	2	2	11
General Retail or Pharmacy	7	1	1	9
Health Body or Partnership	18	-	1	19
Local Authority	16	-	-	16
Other Public Body	3	-	1	4
Third Sector or Professional Body	17	2	6	25
Other	4	1	1	6
Groups (Total)	(76)	(6)	(12)	(94)
Individual	60	15	3	78
TOTAL	136	21	15	172
Percentage	79%	12%	9%	100%
Percentage of those responding	87%	13%	-	100%

4.17 A large majority of those answering the question (87%) agreed that young people under the age of 18 should be prohibited from selling tobacco and non-medicinal e-cigarettes/refills unless authorised by an adult. This clear majority agreeing applied across all respondent groups.

Question 41: Who should be able to authorise an under 18 year old to make the sale, for example, the person who has registered the premises, manager or another adult working in the store?

4.18 One hundred and thirty-eight respondents answered Question 41. Of these, 125 had answered 'yes' at Question 40, 12 had answered 'no' and one respondent had not answered the question.

4.19 Of the 138 who commented, 18 respondents suggested that under 18s should not be able to sell these products and hence no-one should be able to authorise the sale (8 individuals, 6 health bodies, 2 third sector stakeholders, one local authority and one pharmacy or retailer respondent).

4.20 Other comments, some of which listed a range of people and some of which were not particularly detailed or specific, may be summarised as follows:

• Around 40 respondents suggested an adult in some form of supervisory role, or more specifically a manager or shift supervisor.
• Around 30 respondents suggested an adult, sometimes noting that it should be an adult employee.
• Around 15 respondents suggested the person who has registered the premises.
• Around 10 respondents agreed with the range of people suggested within the question.
• Around 10 respondents suggested the arrangements should mirror those for tobacco^[24] and/or alcohol.
• Around 5 respondents suggested an appropriately trained adult.

Question 42: Do you agree with the anticipated offence, in regard to:

a. the penalty

b. the enforcement arrangements

4.21 A total of 94 respondents answered this question and a breakdown is set out in Table 26.

Table 26: Question 42 - Response by Respondent Type

Respondent Type	a	b	N/A	Total
Academic Group	4	4	-	4
E-cigarette Industry or Tobacco Industry	6	6	5	11
General Retail or Pharmacy	4	4	5	9
Health Body or Partnership	17	17	2	19
Local Authority	15	15	1	16
Other Public Body	1	1	3	4
Third Sector or Professional Body	12	12	13	25
Other	2	2	4	6
Groups (Total)	(61)	(61)	(33)	(94)
Individual	29	31	45	78
TOTAL	90	92	78	172
Percentage	52%	53%	45%	100%
Percentage of those responding	96%	98%	-	100%

4.22 Amongst those who answered the question there was a very high level of support for the proposed arrangements^[25], with 96% supporting the proposed penalty and 98% the proposed enforcement arrangements. Of the 94 respondents who answered the question, 88 respondents, including all group respondents, agreed with both options. Of the remaining 6 individuals, 2 agreed with the penalty only and 4 agreed with the enforcement arrangements only.

4.23 A small number of respondents made a further comment. These included that:

• In addition to the Challenge 25 policy, tobacco control policy should consider positive licensing for tobacco products.
• Tobacco penalties and enforcement arrangements should be dealt with by separate regulations to any for e-cigarettes.
• The offence should apply to both the adult selling the product and the customer under 18 who has purchased the product.
• It would be appropriate for Trading Standards to be allocated the enforcement of these provisions, although any enhanced enforcement would require to be resourced.
• Trading Standards should provide appropriate training and support to retailers before such an offence is introduced.