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

Organisation: Scottish Wholesale Association – Colin Smith - 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:

“The Scottish Wholesale Association (SWA) welcomes the opportunity to respond to the Scottish Government’s consultation on Draft Environmental Protection (Single – use Vapes) (Scotland) Regulations 2024.

The SWA is the trade association for Scotland’s food and drink wholesale sector. The sector represents a significant part of the Scottish food and drink supply chain which, prior to the coronavirus pandemic, was worth £2.9 billion and employed over 6,500 people.

Scotland’s wholesalers supply food and drink to the 30,000 restaurants, pubs, hotels, and other leisure and hospitality businesses, Scotland’s 5,200 convenience stores and public sector customers including schools, prisons and hospitals.

Within our membership we have wholesale businesses which supply vaping products and many which do not. As a result, some members will be impacted directly by any change in legislation, some will be impacted indirectly, and some will not be impacted at all.

It is our members who supply food, drink and other items, including vaping products, to Scotland’s thousands of independent convenience stores, often through the symbol group approach. Some SWA members also own retail interests, particularly local convenience stores and many of these will sell age restricted products, including vapes.

SWA responded to the UK wide consultation Creating a smokefree generation and tackling youth vaping: Consultation (October 2023), where we shared many of the points that follow.

SWA supports the public health intentions of the plan to create a Tobacco Free Scotland and understands the necessity to tackle environmental issues associated with single use vapes. We are committed to actively participating in these crucial environmental and public health discussions, advocating for measures that are balanced and sensible as well as equitable and feasible.

Key points in response to the consultation:

• SWA expresses its backing for the environmental aims of the proposed regulations and the associated public health objectives.
• SWA has developed its consultation approach by carefully balancing the environmental and public health considerations and the commercial interests of its membership, and the customers they serve.
• SWA welcomes the stated 4-nation approach to these significant changes to ensure parity and clarity for the businesses impacted and for the consumer.
• SWA has concerns regarding the impact on smoking cessation progress and potential inequalities that may arise given that single use vapes are much cheaper than their refillable equivalent.
• SWA members are of the belief that a ban on single use vapes will lead to a sharp increase in illicit and unregulated trade of single use vapes.
• SWA highlights that new legislation and strengthened regulation will require robust enforcement which brings with it separate challenges for enforcement agencies.

While it is difficult to oppose this momentum for change, it would be remiss of us as a trade body not to share our members’ concerns and our ask of government to be mindful of the business, and wider economic, consequences for those involved with the sale and supply of vapes.

Business impact:

90% of our sector are SMEs trying to navigate a path through a multitude of challenges, including a complex web of existing and new regulations, on top of increasing costs. It is a challenging time for many in wholesale, but we are conscious of concerns raised about youth vaping and the environmental impact of single use vapes. We recognise the expressed will from government and the public for action and change and are keen to play our part where appropriate.

Within the wider economic background, for some retailers, vaping products, particularly disposable vaping products, represent a significant part of their business and providing a high profit margin. With this category affording them the opportunity to cross-subsidise the rising cost of other elements of the consumer basket spend. Due to the rising cost of doing business, in some cases, revenue and profit from vaping products may be one of the reasons their business is surviving. This does not mean that government should not take action to protect public health and the environment however, this provides SWA and members with a challenge around the proposed regulations prohibiting the sale and supply of single use vapes.

We are also of the view that restricting the availability of single use vapes will have greater proportional economic impact on convenience stores and their wholesale supply chain than on supermarkets and multiples who are not as reliant on vapes and can offset any lost sales and margin, from the vape category, through their wider product range and consumer offerings. This affords them the room to meet the additional layers of regulatory pressures on the food and drink industry.

4 Nation approach:

SWA welcomes the stated 4-nation approach to these significant changes to ensure parity and clarity for the wholesale businesses impacted and for the consumer and would urge that this continues.

Scotland is obviously first to consult on regulations to ban the supply and sale of single use vapes, but SWA would be keen to have confirmed that that the agreed date of April 2025 is the intended date across the UK. With any differential of dates or regulation, in other parts of the UK, being detrimental to the intended outcomes of the Scottish ban.

Adaption period:

SWA put forward in the UK consultation that any changes stemming from the legislation would necessitate an 18-month adaptation period for all affected parties to make the required adjustments. The proposed regulations do not allow for this 18-month adaption period, which will impact on all parts of the supply chain, causing repercussions for producers, wholesalers and retailers facing challenges in selling through existing stock and impacting business finances, cashflow and ongoing viability if not enough lead in time is provided.

Stockholding within the wholesale sector ranges from a few weeks stock to over 12 months for slower selling lines, and across a number of manufacturers products. Unlike prior instances such as the ban on menthol tobacco or the standardised packaging of tobacco regulations, where tobacco manufacturers reclaimed non-conforming stock from wholesalers and retailers, the scenario is different for non-conforming vape products such as the single use vapes. Given that a substantial portion of vape stock is sourced from non-tobacco manufacturers, businesses will not have the option to return non-compliant products. This necessitates all businesses to have sufficient time to sell through their existing single use vape stock and it is therefore disappointing that the April 2025 implementation date has been proposed.

The unintended consequences of too short a lead in time is that it drives the sale of non-compliant vapes underground, or results in the mass dumping of disposable vapes - potentially causing a bigger environmental problem. It would also result in wholesalers and retailers unable to recoup the money invested, and now tied up, in single use vape products.

Smoking cessation:

As recognised within the Scottish Government’s Tobacco and Vaping Framework RoadMap to 2034 (November 2023), vapes have a role to play in smoking cessation.

SWA has concerns regarding the impact on smoking cessation progress and potential inequalities that may arise given that single use vapes are cheaper than their refillable equivalent. Removing access to single use vapes then requires those looking for a known, effective cessation tool to use a refillable vape. These vapes cost upwards of three times as much as a single use vape. The UK Government’s recent announcement of a new levy on vapes increases that price yet further. Given the ongoing cost of living crisis, it is not a large leap to then suggest that price increases may have a negative impact on smoking cessation numbers.

In relation to this, SWA are concerned about the inequalities issue that may arise, given that price rises disproportionally impact those in areas of higher deprivation.

In 2021, the age-standardised prevalence of current smoking status continued to be higher among adults living in more deprived areas than among those living in less deprived areas (24% and 5% respectively). While significant decreases in smoking prevalence were recorded in 2021 for all but the least deprived areas, the overall pattern has held since 2003, when 45% of those who lived in the most deprived areas were current regular smokers compared with 17% in the least deprived areas. The Scottish Health Survey 2021 – volume 1: main report (November 2022).

SWA believe that ensuring affordable and effective cessation options for these smokers living in more deprived areas is crucial, promoting equity and fairness.

Illicit and unregulated trade:

SWA members are of the opinion that if those wishing to stop smoking cannot afford to purchase a refillable vape, many could seek an alternative means of getting the product, creating an increase in demand for the illicit and unregulated market.

If single use vapes are available through these illicit, unregulated means, there is still the threat to the environment and to youth vaping. There is also less control as to the quality and safety of the products being used, which is threat to the public and to the environment.

Responsible retailers and wholesalers who supply legal refillable products will also be adversely affected if more people turn to the illicit market. Reducing footfall and total basket sales through convenience stores, and in turn impacting the wealth of the local community, local jobs and sales in the upstream supply chain.

Robust enforcement:

There is a clear need to adequately support current enforcement routes such as Trading Standards.

SWA appreciates that this has been identified as an action as part of the first phase of the Scottish Government’s Tobacco and Vaping Framework: roadmap to 2034 (November 2024). Given the figures from the Society of Chief Officers of Trading Standards in Scotland (SCOTSS) referred to in the Scottish Government’s Framework around poor compliance with current regulations, it would seem that there is more work to be done around current trading before asking Trading Standards officers to enforce more and different aspects.

Given the concerns of an increase in illicit / unregulated products, should the regulations proceed, more investment will be required to support robust enforcement.

In our response to the UK consultation, we stated our belief that if the proposed measures to regulate the appeal of vapes and restrict their accessibility to children and young people were taken forward, alongside the Scottish Government’s education campaign, there would not be the need to prohibit the sale of disposable vapes.

SWA is also of the opinion that enhanced education regarding the necessity for the safe and environmentally friendly disposal of disposable vapes, coupled with increased and improved recycling infrastructure, would greatly reduce the environmental impact experienced. Action has already been taken by Scotland’s convenience store sector to address this through their increase in recycling stations and advertising of this.

SWA would like to have seen the above measures taken forward, allowed time to bed in and make an impact, before the step was taken to introduce a ban on single use vapes.

Conclusion:

SWA have outlined concerns above regarding how these regulations would work in practice.

While SWA recognise that single use vapes have become an environmental issue, we would encourage more support for behavioural change, improved environmental impact awareness, increased access to deposit bins and greater enforcement, rather than yet more regulation.

SWA would also have liked to have seen increased enforcement of existing measures to address youth vaping and exploration of proportionate further measures such as the proposed change to packaging / flavours, before taking forward an outright ban on single use vapes.”

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

“Please see above.”