Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 consultation: SG response

Government response to consultation on ‘Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024’

Between 23 February and 8 March 2024 we held a public consultation on the Draft Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024.

We received 86 responses to this consultation. Of these, 40 responded as individuals and 46 on behalf of an organisation. The United Kingdom is a party to the World Health Organization’s Framework Convention on Tobacco Control (FCTC). Of particular relevance to the proposed ban is Article 5.3 of the Framework Convention. The Scottish Government is committed to protecting the development of public health policy and tobacco control generally from the commercial and other vested interests of the tobacco industry, ensuring compliance with the UK’s international obligations when pursuing policies in devolved areas.

11 respondents had direct links to the tobacco industry, 8 had indirect links and 67 had no links.

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.

Where responses from organisations with links to the tobacco industry have been included in this consultation analysis, their links to the tobacco industry have been highlighted.

In accordance with the requirements of article 5.3 of the FCTC, we have not considered the views of those with links to the tobacco industry when determining our policy response and amendments to the draft Regulations, due to the vested interests of the tobacco industry. In the interests of accountability and transparency it is our intention publish and make publicly available the responses of those respondents in due course.

Question 1: 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

84 respondents provided feedback on the draft Regulations. Responses to this consultation were in line with those received on the four nations consultation on ‘Creating a smokefree generation and tackling youth vaping’ which ran from 12 October – 6 December 2023. The Government response to that consultation can be found at Creating a smokefree generation and tackling youth vaping consultation: government response - GOV.UK (www.gov.uk).

The majority of responses focused on the overall policy intent rather than providing specific comments on the draft Regulations. Most respondents expressed support for a ban on the sale and supply of single-use vapes. Common themes included concerns around the disproportionate use of single-use vapes among children and young people, their detrimental impact on the environment, and fire risks.

19 responses were not supportive of the policy as a whole. Of these 11 came from respondents with direct or indirect links to the tobacco industry. The most common theme of those that disagreed with the overall measure was the impact on affected businesses as a result of lost retail revenue. Other concerns included the importance of smoking cessation measures and the potential growth of the illicit single-use vapes market.

Of those responses that did comment on the detail of the Regulations, comments largely focused on three key themes: the definition of a single-use vape, supply, and enforcement powers. Respondents with links to the tobacco industry commented that the definition of single-use vape created is crucial for the success of the policy.

Definition of single-use vape

The majority of respondents were supportive of the definition. Some responses highlighted concerns that manufacturers could circumvent the measure by designing vapes that were not captured by the proposed definition, but could still be considered to be disposable or single-use. Specific concerns included limited availability of refill containers or an inability to replace the heating coil, that could effectively render devices as single-use.

Offence: supply of single-use vapes

Many comments expressed support for an import ban on single-use vapes, in addition to prohibition on supply. Consultation responses highlighted that in the absence of an import ban, products brought into the country for personal use will not be banned by the Regulations. It was also highlighted that an import ban could reduce enforcement costs for local authorities.

Enforcement

There were a number of specific comments on enforcement powers that could support effective enforcement and ensure compliance with the proposed policy. This included:

• concerns that the wording on general power of entry, where an enforcement officer has “reasonable cause to believe”, created an extremely high threshold for entry.
• That there could be occasions where enforcement officers would want to be accompanied by colleagues, Police Scotland, or other relevant officers
• a lack of powers to seize and remove documents,
• a lack of powers to make test purchases
• a lack of powers to issue Fixed Penalty Notices

A number of responses highlighted the need for adequate funding for local authorities to enforce the ban.

Government response: Consultation responses highlighted general support for a ban on the sale and supply of single use vapes in Scotland in keeping with responses to the four nation consultation in late 2023. The Scottish Government will proceed with introducing Regulations to implement a ban by 1 April 2025. In line with the requirements of article 5.3 of the FCTC, we have not considered the views of those with links to the tobacco industry when determining our policy response and amendments to the draft Regulations, due to the vested interests of the tobacco industry.

To reflect consultation feedback on the draft regulations, and also subsequent engagement with Trading Standards officials who will responsible for enforcing the regulations, the Scottish Government has made the following changes to regulations.

Definition of single-use vape

We have made the following amendments to the definition of a single-use vape to respond to concerns that manufacturers could attempt to circumvent the intent of regulations by designing vapes that are not captured by the proposed definition, but could still be considered to be disposable or single-use. All changes have been discussed with the UK Department for Environment, Food & Rural Affairs (Defra) and other devolved governments to seek to ensure alignment of definitions across the UK.

• Update to the definition of a single-use vape in regulation 3:
  • to require that that vapes should be able to be refillable by an individual user in the normal course of use, and
  • to require that a replacement heating coil is separately available and is replaceable by an individual user in the normal course of use.
• Minor reordering of the definition of a vape for consistency across UK nations .

Offence: supply of single-use vapes

The Scottish Government is unable to consider an import ban, as this is a reserved matter under the Scotland Act 1998.

Enforcement

We have made the following amendments to simplify provisions and enable better enforcement:

• Addition of a new offence for failure to comply with certain requirements imposed in the exercise of an enforcement officer’s powers.
• Removal of the requirement that an enforcement officer have reasonable cause to believe that an offence under the Regulations has been or is being committed in order to exercise the powers in regulation 9. .
• Addition of new investigatory powers, including a power to require a person to assist an enforcement officer, where necessary, in respect of matters within that person’s control or in relation to which that person has responsibilities, a power to seize and remove documents under warrant and subject to certain conditions, and a power to make test purchases.

Question 2: Do you have any concerns about how these regulations would work in practice? - Please give us your views

70 respondents provided feedback on how the Regulations would work in practice.

Feedback included concerns with respect to potential exploitation of loopholes in the Regulations, the potential for the creation of an illicit market for single-use vapes, potential barriers for those trying to quit smoking, and ensuring that enforcement authorities have the appropriate powers and resourcing to enforce the ban.

Some comments related to the implementation of the ban, including the need for a proportionate implementation period and communication of new obligations to business. Respondents with links to the tobacco industry suggested a 12-18 month implementation period would be more appropriate than the proposed six month period. In line with obligations under article 5.3 of the FCTC, these responses did not inform consideration of our policy response.

There were some comments that highlighted the need to increase awareness and enforcement of existing Waste Electrical and Electronic Equipment Regulations 2013 and the Waste Batteries and Accumulators Regulations 2009 for producers, distributors and retailers of vapes.

Lastly, some comments noted that the only option available in relation to an offence under the Regulations is criminal prosecution and that consideration should be given for the ability to alternative means of enforcement such as fixed penalty notices for possession and sale of single-use vapes.

Government response:

Comments on the introduction of a ban on single-use vapes were broadly in line with those received in the previous four nation consultation on ‘Creating a smokefree generation and tackling youth vaping. The Government response to that consultation can be found at Creating a smokefree generation and tackling youth vaping consultation: government response - GOV.UK (www.gov.uk).

We agree with the need for effective enforcement, and have updated Regulations to provide additional powers for local authorities who are the enforcement authority under the Regulations as outlined above. The Circular Economy (Scotland) Bill, currently before the Scottish Parliament, includes provision to enable the use of fixed penalty notices for enforcement purposes in regulations made under section 140 of the Environmental Protection Act 1990 as is the case with the Regulations, as well as similar regulations such as the Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021. If the Bill is enacted, this will allow for a future amendment to the Regulations to allow for the use of Fixed Penalty Notices. We continue to collaborate closely with Trading Standards and the Convention of Scottish Local Authorities (COSLA) to understand the regulatory burdens associated with enforcement and any associated funding, as well as assessing the potential savings and benefits.

Consultation responses informed our draft impact assessments, which were published alongside updated regulations on 2 April 2024.