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

Organisation: Imperial Brands - 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:

“We note that the Scottish Government has proposed to bring in the draft regulations using environmental legislation, when the regulations themselves support public health and the Smokefree 2034 ambition.

We strongly oppose restrictions on the sale and supply of disposable vapes (other than to under 18s). In line with our corporate purpose, we seek to offer adult consumers a choice of potentially reduced risk products. Disposable vapour products form part of that offering. Adult smokers who are considering a switch may be more likely to try vaping using a disposable vape which is lower cost, rather than a refillable vape product which has a higher price point.

All our vape products focus solely on meeting the expectations of existing adult smokers and nicotine users. Our disposable products and packaging are clearly labelled “18+” and “intended for use by adult smokers”. We have made a conscious choice not to provide information about our disposable products on social media. In contrast, some disposable vape manufacturers use social media to market their products to consumers, enabled by a lack of enforcement preventing them from doing so.

We have a zero-tolerance approach to youth access and use for all our products. We are committed to working with all stakeholders to reinforce the message that our products, including disposable vape products, are solely for use by existing adult smokers and adult nicotine users only.

We recognise the sustainability challenges associated with disposable products. To that end, we ensure full compliance with existing environmental regulations and communicate responsible disposal guidance to our consumers.

Marketed responsibly, disposable vape products have a crucial role to play in tobacco harm reduction. They are an important option for adult smokers who value convenience and affordability, and who would otherwise continue to smoke combustible products.

An alternative approach: regulating devices with greatest youth appeal

In keeping with this, we would urge the Government to adopt a more carefully targeted approach that is designed to ban devices with greatest youth appeal.

For example, while the Tobacco and Related Products Regulations 2016 seek to ban disposable vapes that contain more than 2ml of nicotine-containing e-liquid, irresponsible manufacturers are now attempting to circumvent this restriction by producing much larger ‘carousel’ devices that contain multiple single-use vape cartridges built into the device.

We have seen a huge surge in popularity for these much larger carousel devices, which are now flooding the market in Scotland (and the UK more generally), due to the way they are marketed as containing as many as 2,400 puffs. Leaving to one side the fact that these devices clearly seek to circumvent existing vape legislation, the complexity of the devices make them potentially harder to recycle due to the fact that they contain chambers for multiple single-use vape cartridges. They also typically contain larger batteries in the region of 1,750 mAh. This is hugely counter-productive at a time when we, and other responsible manufacturers, have made disposable devices easier to recycle by investing in technology such as removable batteries, which helps reduce the likelihood of plastics and batteries becoming mixed in household waste streams.

With that in mind, we would urge the Government to adopt a more targeted approach that directly addresses devices with greatest youth appeal, without undermining the key role that responsibly produced disposable devices can play in helping adult smokers switch to vaping.

Finally, in light of the determination of unscrupulous manufacturers to find ways to circumvent legislation governing vape products, it is vital that any new regulations are sufficiently targeted to eliminate the rapidly growing market for devices with greatest youth appeal. For example, we are concerned that manufacturers of disposable carousel vape devices may seek to circumvent the draft regulations by making the devices technically rechargeable and refillable, but continuing to market the products in a way that makes them indistinguishable from single-use devices in the eyes of a consumer.”

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

“In addition to our opposition to the restrictions on the sale and supply of disposable vapes, we also have significant concerns about how the proposed regulations will work in practice, should the Scottish Government continue to pursue this policy.

The popularity of disposable vapes, above all other potentially reduced harm products, can be explained by their affordability and convenience. However, it is estimated that a third of adult vapers already access the illicit market. A disposable ban may lead to many more adult vapers pursuing the convenience and affordability of disposable vapes in the illicit market.

The significance of the illicit market should not be underestimated. More than 1.57 million vapes were seized across the UK in 2023. In March 2024, Trading Standards seized 1,640 illicit vapes from just two premises in North Lanarkshire, including products with tank sizes between five and ten times the legal limit, products with a nicotine content equivalent to 400 cigarettes, and flavours deliberately aimed at under-18s including “Gummy Bear”, “Rainbow Candy” and “Bubblegum Ice”.

Given the continued popularity of disposable vapes, some consumers may choose to stockpile products ahead of the proposed 1st April 2025 deadline. While most retailers may manage their stock levels appropriately, some may not fully understand the impact of the impending deadline and may therefore inadvertently be left holding non-compliant stock after the 1st April 2025 deadline.

A ban of any product inevitably requires a deadline for implementation. However, a more balanced, phased approach would be to adopt a soft deadline in April 2025, followed by a sell-through period during which manufacturers and retailers can sell remaining stock (which has been placed on the market before 1st April 2025) in preparation for a subsequent hard deadline. Without a sell-through period, it is likely that some stocks of disposable vapes will need to be destroyed on or before 1st April 2025.

Finally, we are very seriously concerned that the disposable ban is being pursued without a published Impact Assessment which takes full account of how adult vapers will respond to the disposable ban, for example, moving to refillable and/or rechargeable alternatives or, more concerningly, accessing the illicit market and/or returning to smoking.

The failure to publish, or even reference, an Impact Assessment suggests the Government has not undertaken this critical analysis. If that is the case, it should halt the progression of the draft regulations until such time as industry, retailers and society can consider the short- and long-term consequences of the proposed ban.

Drafting considerations – definition of ‘single-use’ vapes

Notwithstanding the points raised above, we urge the Government to reflect carefully on the scope of the draft regulations to ensure that they only capture vape devices that are genuinely considered ‘single-use’.

It is our understanding that the draft regulations are not designed to prohibit pod-based systems as those vape devices can be recharged and refilled. Pod-based systems are a popular choice for adult smokers who wish to switch to vaping. Indeed, the proposed wording at Regulation 3(2)(a) appears to confirm this as it states that a ‘vape’ is ‘refillable’ if it is designed to include “… a single-use container which is separately available and can be replaced”. The definition of ‘container’ expressly includes a ‘pod’.

Our concern is that while a vape device that is designed to be used with replaceable pods can clearly be defined as ‘refillable’ under Regulation 3(2), the application of Regulation 3(3) – which lists the circumstances when a vape device can be considered ‘not rechargeable’ – to pod-based systems is not clear. We understand that the reference to coils within “single-use cartridges and pods” in Regulation 3(3)(b) is purely designed to capture coils within single-use pods where the pods themselves are not separately available and cannot be replaced. It would not (and should not) have the effect of prohibiting the sale of vape devices that include replaceable pods that are separately available, but which happen to contain a coil that cannot itself be replaced. The Government should be aware that the vast majority of replaceable pods on the market do contain a coil which is not designed to be replaced.

We consider that this issue could be clarified by the following amendment:

(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 be recharged, and

(b) a coil which can be replaced by an individual user in the normal course of use.

(4) For the purposes of Regulation 3(3)(b), a coil can be replaced where it is contained within a single-use cartridge or pod that is separately available and can be replaced.”

Annex A:

List of organisations with direct or indirect links to the tobacco industry who requested that we did not publish their consultation response:

1. Krazey Vapes

2. RELX International