A Consultation on Electronic Cigarettes and Strengthening Tobacco Control in Scotland

Tobacco Control and Electronic Cigarettes

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

It can be difficult to determine a person's age based on appearance. To support retailers in determining the age of a young person when attempting to by alcohol, the requirement for premises to have a mandatory age-verification policy was introduced for all premises licences in Scotland in 2011.^[54] These schemes are more commonly referred to as Challenge 25 or Think 25.

This means that, while the legal age to purchase alcohol remains 18, the person selling alcohol should ask for proof-of-age if the person buying alcohol appears to be under the age of 25.

Challenge 25 has been welcomed by retailers in relation to alcohol licensing, as it allows them to request proof of age more easily and encourages people to carry identification.^[55] Many retailers already voluntarily apply the same approach to tobacco sales. The Scottish Government's current Tobacco Control Strategy welcomed this and encouraged all retailers of tobacco products to do the same.

In line with proof of age requirements for purchasing tobacco we anticipate that there will be a requirement for retailers to challenge the age of any person who appears to be under the age of 25. As such, only specified documents will be sufficient for proof of age for the young person. These are a passport, a European Union photocard driving licence, or card accepted by the PASS scheme such as a Young Scot card.^[56]

We believe that the penalty for this offence should be in line with that for selling tobacco or an e-cigarette to a person under the age of 18, since that is what the policy is intended to prevent. This will mean that the offence is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

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?

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?

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

Concerns have been raised that a young person under the age of 18 may be less able to refuse sale to a young person seeking to purchase tobacco or a e-cigarette, for example, this could be a friend or peer. This could be magnified though the implementation of a Challenge 25 policy, where they will be required to challenge the age of customers who could appear much older than them. We believe that the sales of these products, when sold by a young person under the age of 18, should be authorised by an adult over the age of 18. This will bring a level of consistency between sale of tobacco and an e-cigarettes and the sale of alcohol.^[57]

The requirement for such a sale to be authorised means that the adult who authorised the sale is present and can also challenge a customer who appears under age. Alternatively, the adult who authorises the young person to make the sale without an adult present will 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. In our view, this creates a more robust environment for challenging those who appear underage and provides that it is the adult and not the young person who commits an offence by selling tobacco or e-cigarettes to underage customers.

We envisage 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 age 18 to make the sale. In line with the enforcement of other age restriction requirements relating to tobacco and e-cigarettes we believe that this measure would be best enforced by Local Authority Trading Standards Officers. We envisage that such an offence would 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.^[58]

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

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 other adult working in the store?

42. Do you agree with the anticipated offence, in particular:
a) the penalty, and
b) the enforcement arrangements?