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

Organisation: Independent British Vape Trade Association (IBVTA) - Indirect

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:

“It is difficult to provide a balanced response, given the IBVTA has members in all four nations of the UK, with some members operating across nations. Given that at the time of writing the UK Government’s draft regulations have not yet been published, it is difficult to give full consideration to these draft regulations in isolation.

The IBVTA and our members also have two potential process concerns in respect of the Consultation, namely impact assessments and the scheduled consultation period.

The IBVTA is concerned that non-publication of impact assessments fails to adhere to the plan outlined in the Consultation document. Notwithstanding any obligation to publish them arising from the Consultation document, the IBVTA is of the view that such impact assessments should have been published so that that consultees are informed with sufficient information about the reasons for the proposals, so that they can fully understand the proposals, and intelligently respond.

The Scottish Government has invited comment on the draft Regulations between 23 February 2024 and 8 March 2024. This permits only the minimum period for statutory consultation as required under s.140(b)(iii) of the Environmental Protection Act 1990. In circumstances where consultees were given access to material information about the proposals, including impact assessments, at the outset of this period, then this may have provided sufficient (albeit still scarce) time with which to prepare informed responses.

However, given the IBVTA and its members’ concerns about not having an opportunity to review and consider any impact assessments prepared by the Scottish Government, and given the complexity of analysing the impact of the draft Regulations in the context of the existing regulatory and policy framework (including its interaction with the Scottish Government’s wider health and social policy related to smoking cessation), we have already respectfully submitted that the 14 day period does not allow adequate time for consultees to properly consider the proposed arrangements, and to prepare and submit considered consultation responses.

Reading of the draft regulations has brought some confusion to IBVTA members, particularly in understanding sections 3 (2) and 3 (3) of the regulations. This seems to result from the former being based around a precondition of “unless”, and the latter a precondition of “if”. We submit that this confusion could be mitigated by changing section 3 (3) to align with section 3 (2) as below, without changing the meaning or intent of the regulation.

(3) For the purposes of paragraph (1)(b) and (c), a vape is not rechargeable unless it is designed to contain—

(a) a battery which can be recharged, and

(b) a coil which is intended to be replaced by an individual user in the normal course of use, including any coil which is contained in a single-use cartridge or pod which is separately available and can be replaced.”

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

“It is difficult to provide a balanced response, given the IBVTA has members in all four nations of the UK, with some members operating across nations. Given that at the time of writing the UK Government’s draft regulations have not yet been published, it is difficult to give full consideration to these draft regulations in isolation.

Despite our comments around difficulties in addressing all aspects of the draft Regulations due to the short time allowed for response, and the lack of an accompanying Impact Assessment, the IBVTA has some concerns about what seems to be a heavy-handed approach. We are also concerned that the proposed legislation appears (to a varying extent within UK Government and devolved administrations), to be addressing concerns in a policy area other than environmental. We have some doubts about the propriety and legal rigour of using legislative powers in this way.

To be specific, if the policy intent is in any part intended to reduce youth access to vapes, it must be noted that it is already illegal to sell vapes under the age of 18 under Section 91 of the Children and Families Act 2014 as amended by regulation 2 of Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015. It seems entirely possible that additions to environmental regulations have to some extent become attractive due to a failure to enforce under these existing regulations.

In the absence of any published Impact Assessment accompanying the draft Regulations, the IBVTA is also concerned that due consideration has not been made of the likely effect of the introduction of the regulations on adult consumers, and in particular on groups with specific needs and vulnerabilities. Given that there are several times as many adult single use vape users as there are 11-17 year olds currently vaping, it is likely that Human Rights and Equality issues should have been considered before the draft regulations were published.

A study led by researchers from University College London (‘Who would be affected by a ban on disposable vapes? A population study in Great Britain’, Public Health, Volume 227, 2024) found that such a ban would have a disproportionate impact on disadvantaged groups that have higher rates of smoking and typically find it harder to quit. While IBVTA members are already achieving success in moving adult single use vape users to refillable, rechargeable products, we do expect some users to either return to smoking or seek out products on the illicit market.

While it is difficult to accurately quantify the size of the existing illicit market in single use vapes, anecdotally, the IBVTA understand it to be approaching the size of the legitimate market. Worryingly, it also appears that no consideration has been made of the likely market reaction to the imposition of a single use vape ban. Consumer demand for these products is significant, with a February 2024 Nielsen 52 week market read suggesting sales of 264 million pieces through tracked grocery and convenience channels alone. An objective Impact Assessment should ensure that potential reactions by consumers, manufacturers and retailers do not result in outcomes that are of equal or even higher environmental and/or public health impact than the current status quo. Prohibition of products with very high consumer demand rarely makes those products go away. Supply chains and consumers may simply shift in behaviours and buying patterns to satisfy demand.

The timescales for the implementation period seem to be reasonable, if a communication strategy involving comprehensive industry guidance is developed to fully inform businesses of their obligations in the run up to the date of the ban coming into force. There is a risk that operators currently selling illicit, non-complaint, oversized single use vapes will simply ignore the ban.

Effective enforcement should begin very quickly after, if not before the implementation date in order that compliant businesses are not put at an immediate disadvantage after April 2025. There would be significant regulatory benefit in taking action on supply of already illicit product prior to the ban coming into force. This would make preparation for an upsurge in demand more difficult for vendors already brazenly acting outside the law.”