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

5 Equalities, Business And Regulatory Considerations

5.1 The final section of the consultation paper addressed the potential Equality Impacts and Business and Regulatory Impacts of the policy proposals which had been discussed and sought respondents' views and relevant information.

Equalities Considerations

5.2 The consultation paper notes the Scottish Government's commitment to promoting equality and to ensuring that the impacts of policy on people with a protected characteristic (as defined by the Equality Act 2010) are identified. The protected characteristics are: age; disability; gender reassignment; race; religion or belief; sex; pregnancy and maternity; and sexual orientation. These equality considerations do not relate to wider socio-economic inequalities. The consultation provided an opportunity for the Scottish Government to obtain the views of interested parties and members of the public on possible equality impacts which will assist in their development of the Equality Impact Assessment for the new policies which are decided on following the consultation.

Question 43: What issues or opportunities do the proposed changes raise for people with protected characteristics (age; disability; gender reassignment; race; religion or belief; sex; pregnancy and maternity; and sexual orientation)?

5.3 A total of 92 respondents commented at this question (42 individuals, 18 health bodies, 12 third sector or professional bodies, 11 local authorities, 2 academic groups, 2 e-cigarette companies, 2 general retail representatives, 2 'other' group respondents and one other public body).

5.4 A number of respondents stated simply that the proposed changes raised no issues or opportunities (19 individuals, 5 local authorities, 4 health bodies, 2 general retailer respondents, one e-cigarette respondent, one third sector respondent and one other public body).

5.5 Other comments either suggested that all would benefit from the proposed changes or that they would particularly benefit those who smoke or use e-cigarettes. A small number of respondents noted that any policy changes should be applied to everyone or consistently across all groups (although it was not always clear if respondents were referring to all groups in society or all of the protected characteristics groups).

5.6 In terms of more specific or detailed comments, many, although not all, comments appeared to refer to tobacco smoking rather than e-cigarette use. Many also appeared to refer to the issue of smoking on NHS grounds. Some specifically referred to the protected characteristics. Others tended to focus on wider inequality issues associated with poverty and social exclusion.

5.7 Comments included that groups of people with protected characteristics may be differentially affected because of higher smoking rates than across the general population. These were identified as:

• LGBTI people and members of other gender and sexual minorities.
• People with mental health problems.

5.8 Suggestions as to other groups of people who would or could be adversely affected included:

• Older people, and particularly those whose mobility is impaired.
• Those with a disability.
• Smokers staying in hospital, and those staying in psychiatric establishments in particular.

5.9 Although not always specified within their answer at Question 43, the principal concern appeared to be that people would either be unable to smoke (or vape), or would have difficulties in accessing or reaching areas in which they were able to smoke (or vape). Others who suggested that any impacts would be likely to be positive, thought that access issues would need to be considered or that age and disability may require special dispensation with regard to proposals relating to smoking in NHS grounds and in care homes.

5.10 Other groups which were identified as possibly being affected by specific proposals were:

• The Roma and traveller communities in the event of a ban on smoking in vehicles when children are present.
• Someone who is transgender and is asked to produce ID if a retailer is required to check proof of age. The suggestion was that distress might be caused as birth sex may be included on the ID

5.11 Those within protected characteristics groups identified as requiring further protections included those at risk due to age or pregnancy or maternity. In particular it was suggested that research indicates that in utero exposure to nicotine may have adverse effects upon foetal development and that any regulation should reflect this. A specific suggestion was that pregnant women should be protected by any ban on smoking in cars, or, that to protect other vulnerable groups (such as pregnant women or those who are disabled), it may be more feasible to introduce legislation to cover all cars rather than simply cars with children.

5.12 Finally, concerns were expressed about the recent move towards television advertising of e-cigarettes^[26] and the sexualising of both the brand and product. It was suggested that the product could be marketed subversively at the expense of the protected rights related to gender.

5.13 As noted earlier, some respondents highlighted that those in some equalities groups tend to be more likely to smoke and hence the proposed measures would offer the opportunity to reduce health inequalities between them and the wider population. It was highlighted that tobacco use in Scotland is strongly patterned by socio-economic circumstances and that those who are unemployed and seeking work, unable to work due to short term illness and the permanently sick have higher smoking rates than the wider population.

5.14 Given the association between higher smoking rates and specific demographic subgroups, the need to consider whether new regulations may unintentionally stigmatise or otherwise constrain already vulnerable groups was highlighted. A group which was suggested as requiring particular consideration was mothers, and particularly lone mothers, who are smokers and may have limited alternatives to smoking in front of their children. It was also suggested that care needs to be taken to ensure the proposals do not unfairly penalise anyone lacking the capacity to understand the regulations.

5.15 More generally, one individual respondent suggested that any measures which restrict e-cigarette use (such as an indoor vaping ban) would have a disproportionate and potentially harmful effect on those who are vulnerable since they most need to be able to switch from combustible tobacco to less harmful forms of nicotine.

Question 44: If the proposed measures are likely to have a substantial negative implication for equality, how might this be minimised or avoided?

5.16 Fifty three respondents provided comments, many of which were brief.

5.17 Suggestions as to how any negative impacts could be minimised included:

• Phased introduction of legislation as public support is built. For example, one health body respondent suggested the smoke-free cars legislation should focus on the protection of children in the first instance, with additional media communications to strengthen support for protecting others.
• Avoiding criminalising children and their parents by applying any penalties for underage sales of e-cigarettes to vendors only.
• Ensuring that any changes are widely publicised, including through the mass media, so that those who wish to continue to use tobacco have sufficient time and knowledge to access alternative nicotine products to help them manage their cravings.
• Improving support for those who wish to quit among groups with high rates of smoking, such as those with serious mental illness, LGBT people, pregnant teenagers and ethnic groups with high rates of smoking.
• Ensuring that appropriate health education and information are available in a range of formats, including formats appropriate to protected characteristics groups.
• Considering how physical accessibility issues, such as those associated with restricting smoking in NHS grounds, could be minimised.

5.18 Finally, a small number of respondents suggested that consideration should be given to the rights of those who smoke or vape.

Question 45: Do you have any other comments on, or suggestions relevant to, the proposals in regard to equality considerations?

5.19 The final equalities question asked for further contributions on this topic. A total of 28 respondents commented, sometimes re-stating points made at earlier questions.

5.20 Additional points raised included:

• To maximise fairness and minimise the exacerbation of inequalities, the smoke-free legislation exemptions for mental health settings should be removed.
• Any enhanced work to target and support smoking cessation in deprived areas should be encouraged.
• There is a particular need to be sensitive to the risks of stigmatising or potentially 'blaming' smokers from lower socio-economic groups, for example, through inappropriate media or health care messages.
• Restrictions relating to e-cigarettes could adversely affect the ability of smokers to use those products as a means to reduce their tobacco consumption or quit smoking.
• Sufferers of Multiple Chemical Sensitivity do not fall within the protected characteristic groups but can suffer severely from exposure to man-made chemicals. E-cigarettes may not generate the readily recognisable smell that allows sufferers to avoid areas where someone is smoking tobacco products.

Business and Regulatory Considerations

5.21 The consultation paper notes the Scottish Government's commitment to five principles of better regulation: proportionality, accountability, consistency, transparency and targeting. A partial Business and Regulatory Impact Assessment (BRIA) was appended to the consultation paper and respondents were invited to give their views on business and regulatory impacts at Questions 46 to 49.

Question 46: What is your assessment of the likely financial implications, or other impacts (if any), of the introduction of each of these proposals on you or your organisation?

5.22 A total of 96 respondents commented at Question 46. This included 23 respondents who indicated that the proposals would have no impact on them or their organisation. The remaining 73 who made more extensive comment at this question were 25 individuals, 15 health bodies, 13 local authorities, 7 e-cigarette or tobacco industry representatives, 6 pharmacies and retailers, 5 third sector stakeholders and 2 'other' group respondents.

5.23 Most of those making extended comment at Question 46 identified impacts associated with specific proposals. Some provided quantification in relation to the financial scale or cost of current activity, such as current e-cigarette sales and current enforcement/support costs. However, comments at Question 46 tended to focus on the general nature or potential severity of impacts, and did not provide quantification of likely financial or other impacts associated with proposals.

5.24 The impacts associated with specific proposals are highlighted in turn below.

• Respondents generally anticipated relatively limited impacts associated with the proposal on age restriction for e-cigarettes:
  • A small number of e-cigarette industry representatives suggested that the financial impact of the proposal would be minimal for those businesses which currently operate voluntary age-restriction policies, but could lead to reduced revenue for some e-cigarette manufacturers, distributors and retailers.
  • A small number (including general retail, health body and local authority representatives) suggested that the impact of proposals on retailers is likely to depend to a large extent on whether they already sell age-restricted products. This included a suggestion that tobacco and e-cigarette sales are likely to be a relatively small element of revenues for most retailers and, as a result, they would be likely to experience a minimal impact if the proposal were implemented.
• The proxy purchase of e-cigarettes was also seen by some e-cigarette industry respondents as unlikely to have significant impacts as these products are specifically targeted at adults and of minimal appeal to under 18s.
• Restricting the domestic advertising of e-cigarettes was seen as having the greatest potential business impact of the e-cigarette policy proposals. The following issues were raised in this context, primarily by e-cigarette industry representatives:
  • Any ban on domestic advertising would limit the ability of e-cigarette manufacturers, distributors and retailers to grow awareness of their products. There would be an associated impact on market share and potential significant impact on revenues. This could be particularly significant for independent e-cigarette manufacturers who do not have the established market channels of tobacco companies. It was also suggested that a restriction on advertising and marketing activities could create barriers for new businesses wishing to enter the market, and dissuade investment in product development and innovation.
  • Restrictions on domestic advertising which discouraged new businesses from entering the market could potentially increase the cost of products by reducing market competition.
  • Differences in advertising regulations across the UK could lead to uncertainty for manufacturers, distributors and retailers. This could be a particular issue for online retailers who would need to comply with different regulations, and could increase packing costs if the appearance of products had to differ depending on where they are to be sold.
• The requirement to register to sell e-cigarettes was identified as having potentially significant business implications for some businesses, and associated impacts for manufacturers and distributors. Issues raised included:
  • As was highlighted in relation to age restriction for e-cigarette sales, the impact on retailers is likely to depend to a large extent on whether they already sell other age-restricted products. This was raised by a small number of general retail and health body representatives, and included a suggestion that tobacco and e-cigarette sales are likely to be a relatively small element of revenues for most retailers so the proposals would have a minimal impact on them.
  • The requirement to register could have significant financial implications for manufacturers and distributors, particularly if it dissuaded some retailers from stocking e-cigarettes and liquids (e-cigarette industry respondents).^[27]
  • Larger retailers could experience significant financial impacts if a large number of their outlets would need to be registered (a pharmacy respondent).
  • Respondents answering Question 46 did not identify any business or regulatory impacts associated with the proposals on smoking in cars in the presence of persons aged under 18.
• The introduction of national legislation for smoke-free NHS grounds was identified by a number of health body respondents as having significant business implications for NHS and partner organisations. Issues they raised included:
  • The financial implications for the NHS could be considerable, including costs associated with signage, training and publicity. It was noted that a national publicity campaign could help to minimise the impact on individual parts of the NHS.
  • Some respondents suggested that enforcement may have the most significant cost implications for NHS organisations.
  • The proposals are likely to have financial implications for partner organisations such as local authority trading standards and environmental health services.
• The children and families smoke-free outdoor areas proposal was referenced by one local authority respondent in relation to financial and workload implications for enforcement agencies.
• Age verification for tobacco and e-cigarette sales was seen as unlikely to have a significant impact on most reputable e-cigarette manufacturers, distributors and retailers as they would already operate age-restriction policies. It was noted by an e-cigarette industry representative that legislation could have the effect of 'levelling the playing field' by ensuring all manufacturers work to the same rules, but this was seen as a minimal impact.
• Respondents answering Question 46 did not identify any business or regulatory impacts associated with the unauthorised sale of tobacco and e-cigarettes by person aged under 18 proposal.

5.25 Respondents also identified a range of financial and other impacts that were not associated specifically with any one of the proposals outlined above. These included:

• A number of local authority, health body and professional body respondents suggested that proposals are likely to have financial and workload implications for a range of organisations including trading standards, environmental health and licensing and enforcement services. This was highlighted most commonly in relation to age restriction on e-cigarette sales, smoke-free NHS grounds and smoke-free children and families outdoor areas. It was suggested that this would be likely to require additional funding from the Scottish Government.
• Some of these local authority, health body and professional body respondents also highlighted the need for effective communication and publicity about all proposals, alongside a suggestion that the Scottish Government take on responsibility for major promotional campaigns.
• A small number of e-cigarette industry respondents suggested that any action on their use in enclosed public places is likely to lead to a reduction in e-cigarette use, and therefore lead to more people smoking tobacco. This would have significant associated financial impacts for e-cigarette manufacturers, distributors and retailers.
• A small number of e-cigarette industry representatives suggested that proposed restrictions on domestic advertising, registration requirements for retailers, and restrictions on the use of e-cigarettes in enclosed public places could lead to a reduction in the quality and diversity of the e-cigarette market.
• One 'other' group respondent suggested that proposals to restrict access to and use of e-cigarettes and tobacco could have a significant impact on the leisure and entertainment sectors.
• A number of health body, professional body and individual respondents made specific reference to anticipated benefits for public health, including a suggestion that any financial or other implications would be justified by improvements to health and an associated reduction in health costs.

Question 47: What (if any) other significant financial implications are likely to arise?

5.26 Seventy three respondents answered Question 47. This included 17 respondents who indicated that they could not identify any other significant financial implications. The remaining 56 respondents who made more extensive comment were: 20 individuals, 12 health bodies, 6 local authorities, 6 e-cigarette or tobacco industry respondents, 6 third sector stakeholders, 2 pharmacies or retailers, 2 'other' group respondents, one other public body and one academic group.

5.27 Those respondents making extended comment at Question 47 identified a diverse range of financial impacts which had not been raised at Question 46. As is noted at Question 46, comments here highlighted the likely nature and severity of other financial implications, but did not provide quantification. Specific financial implications highlighted at Question 47 included:

• The most common suggestion was the potential for significant savings to NHS services resulting from a reduction in smoking and in children's exposure to second-hand smoke; this was referenced by a range of respondents including health bodies, third sector or professional bodies, and individuals. This included reference to GP consultations and hospital admissions. Some respondents suggested that these savings, and health benefits, would offset against any financial costs associated with the proposals.
• Supporting more people to stop smoking will help to reduce the financial burden on smokers, and may have a particularly positive impact on disadvantaged communities. This was suggested by a small number of health body and professional body respondents.
• A small number of health body, professional body, e-cigarette industry and individual respondents suggested that there may be an increase in taxation revenues from e-cigarette sales, although one respondent suggested there would also be reduced taxation income from tobacco products.
• There should be savings from a reduced requirement for street cleaning to remove discarded cigarette tabs (suggested by a small number of health body and individual respondents).
• A small number of individuals suggested that there may be negative impacts on local communities if smaller independent retailers are forced to withdraw from the market.
• An e-cigarette industry respondent suggested that additional regulation is likely to lead to reduced investment from e-cigarette manufacturers, and associated loss of employment and financial implications for other businesses with an involvement in the sector.

Question 48: What lead-in time should be allowed prior to implementation of these measures and how should the public be informed?

5.28 One hundred respondents commented at Question 48: 37 individuals, 18 health bodies, 13 local authorities, 13 third sector or professional bodies, 8 e-cigarette industry or tobacco industry respondents, 4 general retail or pharmacy respondents, 3 academic groups, 3 'other' group respondents and one other public body. These included 11 respondents (primarily e-cigarette industry or tobacco industry representatives and individuals), who noted their opposition to certain of the proposals. However most of these respondents did go on to comment on implementation timescales and/or the approach to communication they thought could be adopted.

5.29 A total of 76 respondents commented on the lead-in times for implementation of one or more of the proposals. This included rcommente on lead-in times for specific proposals only and most frequently the proposals relating to age restrictions for e-cigarettes and refills. These respondents (3 third sector or professional body, 2 e-cigarette industry or tobacco industry, 2 health body, 2 other group and one academic group respondent), suggested that there is no need to delay implementation of these proposals, including a suggestion that legislation be introduced by April 2016. Those commenting on specific proposals only also suggested a lead-in time of 6-12 months for smoking in cars and noted more generally that lead-in times could be shorter for proposals which do not require legislative change.

5.30 Some of those commenting on lead-in timescales suggested that lead-in times take account of the schedule for implementation of the Tobacco Products Directive (TPD). This was a particular concern for e-cigarette industry or tobacco industry respondents; 5 of the 8 e-cigarette industry or tobacco industry representatives commenting at Question 48 referred to the TPD. Those commenting on lead-in times also referenced implementation timescales for previous policy or legislative changes as a model for current proposals. This included specific reference to the introduction of tobacco retailer registration and the prohibition of smoking in enclosed public spaces.

5.31 The remaining 66 respondents who suggested specific implementation lead-in times for the consultation proposals as a whole were 25 individuals, 14 health bodies, 13 local authorities, 9 third sector or professional body respondents, 3 general retail or pharmacy respondents, one other public body and one 'other' group respondent. These respondents recommended a range of lead-in times, with around half suggesting that proposals be implemented as soon as possible or within 12 months and others suggesting 12-24 months. This balance of opinion was broadly similar across respondent categories.

5.32 Of the 100 respondents responding to this question, 40 commented specifically on the approach to communication required to inform the public of measures being implemented. This included 12 individuals, 11 health bodies, 9 local authorities, 6 third sector or professional bodies, one academic group and one e-cigarette industry representative.

5.33 Comments included general suggestions that a large scale public information campaign would be required. Examples of previous campaigns, such as those associated with the implementation of the ban on smoking in enclosed public spaces and the 'Take Smoking Outside' campaign, were mentioned.

5.34 In terms of specific communication approaches, respondents made a broad range of suggestions including:

• Campaigns using radio, television and newspaper advertising.
• Web-based communication including social media.
• Leaflets and materials delivered to the home.
• Public space advertising such as billboards, bus shelters, flyers, adverts on buses. This included reference to the importance of signage at the main border points and on trunk roads for the cars proposal.
• Point of sale information through retailers.
• Working with stakeholders such as NHS boards, manufacturers and retailers to communicate changes.
• Public awareness-raising and engagement sessions, including a recommendation for a series of roadshows across the country.

Question 49: Do you have any other comments on or suggestions relevant to the proposals in regard to business and regulatory impacts?

5.35 A total of 46 respondents commented at Question 49. This included 18 individuals, 7 e-cigarette industry or tobacco industry representatives, 6 health bodies, 6 local authorities, 3 general pharmacy or retail respondents, 3 third sector or professional bodies, 2 academic groups and one 'other' group respondent.

5.36 A number re-stated points considered in earlier sections of the consultation analysis. This included for example the potential negative impacts of 'disproportionate' regulation on the quality and diversity of the e-cigarette market, suggestions that regulation and licensing arrangements for e-cigarettes should be consistent with those for alcohol, and a view that public health interests should take priority over any negative financial impacts.

5.37 Other considerations or concerns in relation to the business and regulatory impacts of consultation proposals included:

• A small number of academic group, health body and third sector respondents made reference to the WHO Framework Convention on Tobacco Control (FCTC). These respondents suggested that, while taking account of potential business or regulatory impacts, the Scottish Government must also ensure it honours commitments under the FCTC in protecting public health policies from the commercial and other vested industries of the tobacco industry.
• A need to consider provisions for the taxation of e-cigarettes. This included a recommendation for taxation of different forms of e-cigarettes, and a separate suggestion that the effectiveness of taxation in reducing smoking should be applied to e-cigarettes.
• A suggestion that there will be a need to continue to build support for wider social change through tobacco control measures, and to improve understanding and acceptance of proposed legislative measures across the general public.
• A small number of e-cigarette industry or tobacco industry respondents referred to 'Better Regulation' principles and suggested that the Scottish Government should ensure regulation is open, transparent and proportionate, and offered further engagement with the Scottish Government.
• A suggestion that any subsequent implementation action in relation to the consultation proposals should be subject to a full business impact assessment.
• A recommendation that an impact assessment of current tobacco control legislation is undertaken prior to the implementation of any new measures.
• Concern regarding the extent to which the consultation paper implies that e-cigarettes and tobacco products are equivalent.