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

Organisation: Consumer Choice Centre – Mike Salem - 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. Given the alignment of Scottish and English policy on creating a smoke free society, disposable vapes may be used as part of the Swap to Stop scheme, which exists in England but not yet in Scotland. This poses two immediate questions:

a. Will those travelling from England to Scotland with their disposable vapes, which were given under NHS England Swap to Stop Scheme have them confiscated? These disposable vapes do not fall under section 2(b) of the draft regulation. As such will you add an amendment to those who fall in that category to ensure they stick to their smoke free plan?

b. If Scotland were to follow England in the Swap to Stop scheme, which it is bound to if the generational smoking ban is to be implemented in Scotland, what provisions does this current regulation have on legalising disposable vapes for this particular use? We suggest adding an amendment to permit the use of disposable vapes for government licensed schemes, which fall beyond the definition of a medical product under the Human Medicines Regulations 2012(b) or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002(c).

2. Has the Scottish government consulted with the British government as for the definition of a disposable vape? If other devolved administrations and England choose to define a disposable vape differently, would those individuals who carry their vapes into Scotland be prosecuted? We suggest either to add to the SI other definitions of a disposable vape by the other devolved administrations to be accepted or consider another avenue to cater for such a potential problem.

3. How can those carrying a disposable vape safely and legally dispose of their disposable vapes once they are in Scotland? Perhaps the SI will need to include some funding for specific vape disposal containers.

4. Has the date been agreed with other devolved administrations, if not discrepancies on Scottish borders will be problematic for law enforcement.

5. Given these concerns, coupled with other issues which will be addressed in the second part of this consultation, we suggest introducing a later date for the SI to come into effect and only after if the problem we are seeking to tackle has not been resolved. As an example, we suggest an amendment which makes the Statutory Instrument effective after 1 April 2028 and only if the number of children vaping increases by 10%.

a. In this manner, the political will would have delivered on its pledge to introduce legislation to the electorate to address the issue.

b. This also provides the opportunity for a cool off period after the legislation is introduced to conduct research into the areas of concern.

c. Finally, this ensures enough time for coordination with other devolved administrations.”

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

“How is an officer capable of finding out whether a vape is disposable unless training is provided.

Up to 60% of current disposable vapes are illegal/ counterfeit according to UKVIA, before the ban. A ban would amplify this. How will the Scottish government enforce the ban?

Widespread emergence of black markets: following on from the existing issue of illicit vapes already being sold, this regulation would amplify the existing black market, increasing its demand and thus increasing burden on law enforcement.

Substitution effect: This regulation would encourage those who were using disposable vapes back into cigarettes as they are perfect substitutes. Distorting consumer preferences would lead to worse health outcomes, which I can’t see working in practice in tandem with the government’s commitment to create a smoke free generation by 2030.”