Environmental Protection (Single-Use Vapes) (Scotland) Regulations 2024 - fixed penalty notice amendment consultation: response

Between 9 December 2024 and 9 January 2025 we held a public consultation on the Draft Environmental Protection (Injurious Articles: Miscellaneous Amendments) (Scotland) Regulations 2025 (“the draft Regulations”).

We received 25 responses to this consultation. Of these, 11 responded as individuals and 14 on behalf of an organisation. 

Question 1: Do you have any feedback on the proposed introduction of fixed penalty notices for offences under The Environmental Protection (Single-Use Vapes) (Scotland) Regulations 2024, the Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021, the Environmental Protection (Cotton Buds) (Scotland) Regulations 2019 and the Environmental Protection (Microbeads) Regulations 2018?

We received 22 responses to this question. An overwhelming majority of responses were supportive of the introduction of fixed penalty notices (FPNs) for offences under the above Regulations. Common feedback included that this follows established FPN models including the Tobacco and Primary Medical Services (Scotland) Act 2010 (TMPS), which Trading Standards officers (who are also responsible for enforcing these Regulations) are experienced at enforcing and under which FPNs are regularly issued. 

Suggested changes to the fixed penalty notice provisions as set out in the draft Regulations included: 

• alignment of the proposed FPN provisions for the Environmental Protection (Single-use vapes) Regulations 2024 (“the Vapes Regulations”) with the FPN provisions for offences under the TMPS
• increased FPN amounts
• the inclusion of FPNs and convictions for offences under the Vapes Regulations as a relevant enforcement actions for the purposes of tobacco and nicotine vapour product banning orders under the TMPS
• amending the wording in relation to payment information to reflect that not all local authorities are able to offer online payments for FPNs
• extending payment deadlines for discounted payments from 7 to 14 days, and for full payments from 14 to 28 days for FPNs under the Vapes Regulations in keeping with the deadlines for payments in the TPMS
• the introduction of an appeal mechanism for retailers if they believe an FPN was issued in error without an impact of the discount for early payment

In addition, several respondents highlighted the additional cost associated with the introduction of a fixed penalty notice regime in terms of staffing and training for enforcement officers. 

Scottish Government response:
Having considered consultation feedback, we have amended the wording to remove the reference to online payment. We have also extended the payment deadlines to 14 days for discounted payments and 28 days for full payments for FPNs under the Vapes Regulations.

In relation to the proposed full alignment with FPNs under the TMPS, we note that TMPS payments are not made under the Environmental Protection Act 1990 but are made under different primary legislation. TMPS payment amounts reflect the relevant requirements of that legislation and are in keeping with other FPN provisions both in that Act and in regulations made under it. We note that the penalty amounts are largely in keeping with those in the TMPS.   

Question 2: Do you agree with the proposed levels at which the fixed penalty notice amounts have been set for offences under each set of Regulations?

We received 23 responses to this question. The majority of respondents either agreed with the proposed levels or suggested that the proposed levels could be increased to varying degrees. Those who agreed with the proposed levels highlighted that these are in line with the levels for fixed monetary penalties set in the other single-use vapes regulations across the UK, as well as with similar FPN regimes.

Suggested changes to the level of fixed penalty notice included:

• increasing the levels to:
  – first offence: £300 (reduced to £200 for prompt payment)
  – second offence: £600 (reduced to £500)
  – third offence: £900 (reduced to £800)
  – further offences should escalate to prosecution or, banning orders under the TMPS
• set the amounts in line with UK animal health legislation, applicable in England, which provides for maximum FPN amounts of £5000

Scottish Government response:
Having considered consultation feedback, we have concluded that the benefits of alignment with the level of penalty set in the other UK nations outweighed the benefits of raising the proposed penalties. We have therefore opted to keep the level of penalties as proposed in the draft Regulations. 

Question 3: Do you have any comments in relation to any other provisions in the Regulations?

We received 21 responses to this question. The majority of responses were focused on the proposed amendments to the Vapes Regulations and related to the enforcement provisions.

Responses in relation to other provisions in the draft Regulations included:

• the proposed introduction of forfeiture and destruction provisions for single-use vapes supplied in contravention of the Vapes Regulations in line with similar provisions in the other UK vapes regulations
• the importance of alignment across the UK nations in approach to enforcement in order to provide clarity for enforcement officers and businesses
• the need to account for adaptations in vape design that attempt to bypass the definition of single-use, in particular ‘high puff-count' vapes
• the need for additional resource for Local Authority Trading Standards in order to enforce the ban on the sale and supply of single-use vapes

Scottish Government response:
Having considered the consultation responses, we have included provision for a direction-making power in the Vapes Regulations which will enable the Scottish Ministers to direct that single-use vapes supplied in contravention of the regulations are to be treated as waste and disposed of or treated as appropriate. Directions under this provision will be able to be given to a local authority in connection with any enforcement action taken under the Vapes Regulations and would apply to any single-use vapes in respect of which an offer of fixed penalty has been accepted and the penalty paid. This modification to the draft is in keeping with similar provisions in the other UK vapes regulations and will allow for greater alignment of enforcement measures.

We agree with the importance of alignment across the UK nations with regards to enforcement, and have therefore opted to keep the proposed level of penalties as are set out in the draft Regulations.

We believe that the definition of ‘single-use’ in the Vape Regulations adequately addresses the issue of high-puff count vapes. Unless these devices are both rechargeable and refillable, as defined in the Vapes Regulations, they will be classed as single-use once the ban comes into force.

We continue to collaborate closely with Trading Standards and COSLA to understand the regulatory burdens associated with enforcement and any associated funding, as well as assessing the potential savings and benefits.