Draft Environmental Protection (single-use vapes) (Scotland) Regulations 2024: EIR release

Information requested

“I would like to make the following FOI requests, directed to the Environment and Forestry Directorate in regards to their disposable vape consultation response:

• The names of the organisations whose responses were disregarded from consideration for the government response to consultation on ‘Draft Environmental Protection (single-use vapes) (Scotland) Regulations 2024.’ 
• Whether responses from retailers who sell tobacco and vaping products were considered in the government response to consultation on ‘Draft Environmental Protection (single-use vapes) (Scotland) Regulations 2024.’
• How organisations with ‘links to the tobacco industry’ were determined when disregarding responses from consideration for the government response to consultation on ‘DraftEnvironmental Protection (single-use vapes) (Scotland) Regulations 2024.’”

Response

As the information you have requested is ‘environmental information’ for the Purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two
different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Question 1
The Scottish Government’s Draft Environmental Protection (Single-use Vapes)(Scotland) Regulations 2024 Consultation received 86 responses in total, of which 11 respondents had direct links to the tobacco industry with a further 8 having indirect links.

As set out in our Consultation Response of 12 June 2024, in accordance with the requirements of article 5.3 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC), the views of those respondents with links (both direct and indirect) to the tobacco industry where not considered.

In regards to your request for the names of the organisations whose responses where not considered, an exception under regulation 10(5)(f) of the EIRs (third party interests) applies to some of the information you have requested. It may help if I explain that as part of the consultation process we would seek the views and/or permission of respondents to publish their response(s) as part of our obligations under article 5.3 of the FCTC.

In instances where respondents have indicated that they would not be content with their response(s) being published, disclosure of organisational information (including the names of said organisations) who have not consented may potentially prejudice the interests of organisations who have provided responses in confidence to the Scottish Government and may, in addition, impact future consultation
work and subsequently Scottish Government policy development. I have provided the names of organisations who have indicated they would be content for their information to be disclosed below:

Organisation name	Link (direct/indirect)
The Federation of Independent Retailers	Direct
World Vaper’s Alliance	Direct
Consumer Choice Center	Direct
Scottish Wholesale Association	Direct
Ardgay Stores and Highland Cafe	Indirect
Haco Convenience Store	Indirect

The above noted exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in releasing the information as part of an open, transparent and accountable government. However, disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of said information and the interests of those providing information to the Scottish Government in confidence.

Questions 2 & 3 

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

As set out in the Consultation Response of 12 June 2024 and noted in my response to Question 1 above, in accordance with the requirements of article 5.3 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC), the views of those respondents with links (both direct and indirect) to the tobacco industry where not considered. The Consultation Response also defined what were considered to be direct and indirect links. I have included an extract from the opening section of the response which defines said links and their relation to retailers below for your convenience: 

"We would consider a direct link to be a person, company, or organisation who receives funding directly from the tobacco industry, or an organisation which has tobacco companies as members. We would consider an indirect link to be any person, company, or organisation who derives any form of indirect benefit from the tobacco industry – this would include retailers who sell tobacco products, or anyone who receives gifts, services, or hospitality from tobacco companies."

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.