Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 consultation: SG response – Responses from those with links to the tobacco industry

Organisation: ACS (Association of Convenience Stores) - Direct

Do you have any feedback on the draft regulations to prohibit the sale and supply of single-use vapes in Scotland? - Please give us your views:

“Short Consultation Process and Lack of Business Regulatory Impact Assessment

ACS is concerned by the Scottish Government’s approach to consulting on the Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024. We have raised our concerns directly with Lorna Slater MSP, Minister for Green Skills, Circular Economy and Biodiversity, about the short consultation process and the Scottish Government’s decision not to publish a Business Regulatory Impact Assessment (BRIA) alongside the publication of the regulations . This is a worrying indication of the Scottish Government’s hurried approach to the policymaking process.

A ban on single use vapes will impact all of Scotland’s 5,171 convenience stores and the millions of people using vapes in Scotland, it will also have a significant impact on enforcement agencies that are responsible for its implementation. We do not believe that the delivery of a disposable vapes ban has been fully considered in the Creating a smokefree generation and tackling youth vaping consultation. The UK consultation focused on the whether respondents agreed or disagreed to the introduction of restrictions on the sale of disposable vapes, not its operational delivery or its impact on the illicit market or how consumers would respond to the ban.

A full impact assessment should have been prepared alongside these regulations. This impact assessment needs to look at the size of illicit vaping market in Scotland, the budgets available to trading standards teams to enforce the policy and an assessment of behaviour change from vapers in Scotland – will they shift back to tobacco products, source vaping products from the illicit vaping market or shift to reusable vaping solutions. In addition to an impact assessment, we think it would be proportionate for either or both the Scottish Parliamentary Committees for Health, Social Care and Sport Committee & Net Zero, Energy and Transport Committee to scrutinise the regulations, impact assessment and receive evidence from Ministers and other relevant stakeholders.

Citation, commencement and extent 1(1)

Implementation Date

We want the Scottish Government, and nations across the UK, to revise the implementation date for the ban of disposable vapes. Given the concerns set out in this submission, we want the disposable vapes ban not to be introduced until 12 months after government(s) have produced and published supporting guidance on the interpretation of these regulations and have set out a clear enforcement framework, including the allocation of funding for enforcement. We want to support the government in developing this guidance to maximise clarity for retailers and their stores colleagues that will be implementing the disposable vapes ban.

Meaning of Single Use Vape 3 (1) to (3)

How a single use vape is defined in the regulations is a crucial factor for the success of the policy. Our priority is ensuring that retailers can clearly identify what products are in and out of scope of the disposable vapes ban. With no clarity on enforcement action and an inconsistent approach to defining vaping products, it is likely that retailers will be left with the difficult job of identifying what products are disposable and what are not. We envisage a scenario of confusions for both retailers and consumers, and enforcement agencies without resources to provide clarity.

The Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 creates further inconsistency across the definition of what a vaping product is. In Scotland and across the UK there are multiple legislative definitions for the same product. The law in Scotland is currently based around the definition of a “nicotine vapour product” in the Tobacco and Primary Medical Services (Scotland) Act 2010 / Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.

Moving wider, the UK-wide definition in the Tobacco and Related Products Regulations 2016 is for an “electronic cigarette” and the age restriction brought in England under the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015 is for “nicotine inhaling products”. We urge the Scottish Government and other government across the UK to work together to bring consistency to the definition of a vaping product.

Defence of Due Diligence 6 (1) to (2)

Given our concerns set out in relation to the Meaning of Single Use Vapes 3 (1) to (3), we need more reassurance about what accounts for “all reasonable precautions” and how retailers can set this out.

Retailers may, especially during the introductory period of the disposable vapes ban, secure stock of vaping products in good faith that they include functions that mean they are not disposable, but there may be a disagreement with trading standards’ and suppliers’ interpretation of the regulation. A pragmatic approach to enforcement will be needed to address this. Part of the defence that should be available to retailers is that they have worked with reputable vape supplier that have advised them that the specifications of the vaping product meet those set out in the regulations.”

Do you have any concerns about how these regulations would work in practice? - Please give us your views:

“Defining a Disposable Vape

One of the challenges with the existing regulatory approach to vaping products is the difficulty of identifying if a product meets legal specifications and has been notified to the MHRA. To this end, we have produced industry leading guidance to help retailers navigate this process . However, with 36,536 products on the MHRA’s ECIG Dynamic search tool, many with multiple brand identities for each product, it is hard for retailers to identify if products meet the regulatory requirements. We are concerned that the disposable vapes ban will make this harder.

It is possible that there will be innovations in the design of vaping products that push the boundaries of the definition set out in the regulations. For example, a vaping product that had functions that enabled it to be refillable and rechargeable, but offered a product and price point that to consumers that is like a disposable vaping product. We need some reassurance from the Scottish Government and enforcement agencies that they will provide support for business with navigating the application of this definition in real world scenarios, instead of immediate enforcement action.

Part 3 Enforcement

The Scottish government should develop supporting guidance for the interpretation of these regulations and an enforcement framework detailing the approach that will be taken to fines and prosecutions. Given that at least one third of the UK vaping market is estimated to be illicit and the short lead times for the introduction of the ban, there will be a large of amount of disposable vaping product still within the supply chain. These products will not disappear from existence and enforcement agencies must prepare for this.

The Scottish Government, and other governments across the UK, should also be considering how the disposable vapes ban will interact with other regulatory frameworks for vaping products and what this means for enforcement agencies’ powers. For example, the MHRA register for vapes and the Scottish Government’s Register of Tobacco and Nicotine Vapour Product Retailers.

We seek clarification that there will be a requirement for the MHRA to have reviewed and removed all disposable vaping products from their register before the ban is introduced. Moreover, provision must be made to ensure that no disposable vapes are notified and published to the register after the ban is introduced. This is essential to avoid confusion amongst retailers that are checking the register to see if reusable products have been notified and published on the website. The Scottish Government, and other UK Governments should consider if amendments are needed to the Tobacco Products and Nicotine Inhaling Products (Amendment) (EU Exit) Regulations 2020 and if the MHRA needs additional resource to achieve this.

Further clarification is also needed as to what impact the disposable vapes ban will have on the Register of Tobacco and Nicotine Vapour Product Retailers in Scotland. Will there need to be a change to the definition of Nicotine Vapour Products in the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 to reflect the ban of disposable vapes introduced in the Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024? Will there also be an alignment of enforcement powers between these two policy frameworks. There could be a scenario where a business has been found selling a disposable vape, receive a fine or prosecution but remain on the register.

The Illicit Vaping Market

ACS is concerned about how the regulations will work in practice without a clear outline and plan of the funding the Scottish Government will provide trading standards to equip them with the resources to enforce a ban. Our consumer polling indicates that the disposable vapes ban will lead to more customers (24% of current users of disposable vapes) moving to the already burgeoning illicit vape market, costing legitimate Scottish businesses £51m in lost sales and millions more in the value associated with footfall loss, threatening the viability of some stores. This is not speculative; this illicit market already exists and accounts for the majority of illegal products on the market and being sold to children.

Despite the significant shift to the illicit market, the Scottish Government is not investing enough in enforcement activity to shutdown businesses that sell vapes to children and illegal vaping products, which calls into question how these regulations will be responsibly delivered. The Scottish Government’s Tobacco and Vaping Control Framework stated it would continue to provide funding to support Trading Standards Officers in Scotland but did not deliver an outline of how much funding will be allocated and if there will be additional funding delivered to enforce the new restrictions. The Scottish Government need to publish a credible enforcement strategy to manage a responsible implementation of the ban.

Smoke Free Targets

Our consumer polling also indicates that it is inevitable that the ban on disposable vapes, the most popular and widely accessible vaping products, will result in some adult vapers returning to tobacco products. Our research suggests that 8% of people who use disposable vapes (300,000 adult vapers across the UK) may move back to tobacco products. The lack of an impact assessment to account for how the government has evidenced its approach to ban disposable vapes and the effect this will have on the main audience impacted by the ban, that is disposable vapers, raises concerns over how the Scottish Government intends to responsibly deliver effective regulations and achieve its health objectives.

We recommend that to reduce the number of disposable vapers switching over to tobacco, that the Scottish Government develop a clear strategy to communicate the impact of the ban on vape consumers, the alternative products they can purchase and to source them from responsible retailers.

For more information on this submission please contact daniel.askew@acs.org.uk

Annex A:

ACS commissioned Yonder to deliver consumer polling of 2000 UK adults, 8% of the sample indicated they use disposable vapes and chart below details how they will respond to the disposable vapes ban.

• 44% said they would switch to refillable vapes
• 24% said they would continue to use disposable vapes
• 20% said they would stop vaping and not use an alternative product
• 8% said they would switch to cigarettes
• 4% said they would switch to a different nicotine product”