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

Organisation: British American Tobacco (BATUK) - 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:

“1.1 As set out below British American Tobacco (“BATUK”) disagrees with a ban on single-use vapes for the reasons set out in section 2 of this response. However, if the Scottish Government intends to proceed with introducing a ban on single-use vapes, there are a number of points within the definition of 'single-use' vape in paragraph 3 of the draft Regulations that we believe require amendment and/or clarification.

1.2 Paragraph 3(1) does not clearly define what a single use vape is and creates unnecessary ambiguity. This is because it defines a single-use vape as "a vape which is not designed or intended to be re-used". It then says that this "includes" any vape which is not rechargeable or refillable. This suggests that a single use vape may include products other than non-rechargeable or non-refillable vapes, but these other products are not defined. Moreover, the scope of "or intended" is ambiguous and it is not clear what it is intended to add. It is straight forward that a vape that is non-rechargeable or non-refillable is single use. There is no need to try to extend the definition to include potential additional undefined products or to add an ambiguous element of 'intent'. The products that are within the scope of the ban should be clearly defined to provide certainty for businesses and enforcement authorities.

1.3 Paragraph 3(1)(c) is also superfluous. Any vape which is not refillable and not rechargeable will not be permitted under paragraphs 3(1)(a) and 3(1)(b).

1.4 Based on this, we propose that the definition of single-use vapes is simplified such that Paragraph 3(1) would read:

"For the purposes of these Regulations, a “single-use vape” is a vape which is — (a) not refillable; or

(b) not rechargeable”

1.5 The meaning of paragraph 3(2)(a) requires clarification, namely in relation to (a) the use of the wording “single-use” in association with “container”; and (b) the use of the words “separately available”. We suggest amending this paragraph to "a container which is available to purchase separately from a vape and can be replaced."

1.6 Paragraph 3(3)(b) requires further clarification. We understand that paragraph 3(3)(b) is intended to ban vapes (single-use) that do not have coils that can be replaced in the normal course of use. This is achieved by the first part of paragraph 3(3)(b) which provides that a vape is not rechargeable if it is designed to contain "a coil which is not intended to be replaced by an individual user in the normal course of use". The second part of paragraph 3(3)(b) ("including any coil which is contained in a single-use cartridge or pod which is not separately available and cannot be replaced") is not necessary to achieve this legislative intent, is unclear and in all events is redundant as cartridges and pods which are not separately available and cannot be replaced are already banned under paragraph (3)(2)(a). Accordingly, paragraph 3(3)(b) should be amended to read: "a coil which is not intended to be replaced by an individual user in the normal course of use".

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

“2.1 As explained in our response ("Response") to the UK wide consultation creating a smokefree generation and tackling youth vaping ("Consultation"), BATUK opposes a ban on the sale and supply of disposable vapes. We want smart, evidence-based regulations in place so the vaping industry can fulfil its potential to make smoke-free ambitions a reality in the UK, including bans on certain flavours and design features that are specifically directed at the underaged (for example, soft drinks, candy flavours and features resembling or incorporating toys, cartoons, or candy).

2.2 It is clear to us that single-use vapes can and should be part of the Scottish Government’s smokefree plans, for these four reasons:

2.2.1 Banning the legal supply of disposable vapes will incentivise an already significant illicit market (e.g., Trading Standards indicates 1/3 of vapes in the UK are non-compliant) which will continue to supply products (including to the underaged) as well as not complying with product regulations.

2.2.2 Single-use vapes provide adult smokers with a convenient and accessible format that can accelerate the reduction in smoking rates. An outright ban on disposable vapes would therefore undermine public health rather than improve it, by discouraging smokers from switching to vapes. A study by University College London on the impact a ban on disposable vapes would have suggested a ban on disposable e-cigarettes would affect an estimated 2.6 million people in England, Wales and Scotland. This includes 1.2 million people who currently smoke and would benefit from switching to e-cigarettes completely, and a further 744,000 who previously smoked and may be at risk of relapse.

2.2.3 The proposal raises particular concerns for existing users of single-use vapes (which according to a survey by ASH are used by 31% of current adult users of vaping products in Great Britain). Banning disposables could cause these users to revert to smoking. The potential public health gains that could be lost are therefore huge.

2.2.4 An outright ban on disposable vapes would also disproportionally restrict the property rights of manufacturers and retailers, and consumers' rights of privacy, and will violate International Trade Agreements.

2.3 Rather than proceeding with a ban, the Scottish Government should assess the other measures in relation to vapes that the UK and Scottish Governments are considering (for example in relation to flavours and packaging and proposed reforms to the WEEE regulations), and it should also consider redefining single-use vapes to increase their sustainability by introducing compulsory battery removability. In our Response, we also proposed other measures including a specific licensing scheme for anyone selling vaping products. The Scottish Government should proceed with these other proposals, rather than introducing such a draconian measure as a single-use vape ban, particularly in circumstances where, as here, a ban could have significant public health impacts for smokers and existing users of disposable vapes who are ex-smokers.”