Implementing the prohibition of the sale and supply of single-use vapes in Scotland: your views SG response – Responses from those with links to the tobacco industry

‘Implementing the prohibition of the sale and supply of single-use vapes in Scotland: your views’ SG response – Responses from those with links to the tobacco industry

Between 2 April 2024 and 14 May 2024 we held a public consultation on the implementation of the proposed prohibition of the sale and supply of single-use vapes. This included updated Regulations, a suite of draft impact assessments including the Partial Business and Regulatory Impact Assessment (BRIA), and a Strategic Environmental Assessment (SEA) Environmental Report.

We received 45 responses to this consultation (43 via Citizen Space, and two via email). Of these, 27 responded as individuals and 18 on behalf of an organisation. 14 respondents stated that they had links to organisations representing the interests of children and young people. Two respondents stated that they had links to organisations that represent Scottish island communities. 13 respondents stated that they had links to an organisation that represents people with protected characteristics. A further 13 respondents stated that they had links to an organisation that represents people who experience socio-economic disadvantage.

The United Kingdom is a party to the World Health Organization’s Framework Convention on Tobacco Control. 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 vested interests of the tobacco industry, ensuring compliance with the UK’s international obligations when pursuing policies in devolved areas.

To meet this obligation we asked respondents to declare any direct or indirect links to, or funding received from, the tobacco industry, and to explain what these were. Of those who responded, four declared direct links to the tobacco industry, while all others stated that they 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 direct links to the tobacco industry are noted in this consultation analysis, their links to the tobacco industry were highlighted in the Government response. In line with the requirements of article 5.3 of the FCTC, the views of those with links to the tobacco industry were not taken into account in determining our policy response and potential amendments to the draft Regulations, due to the vested interests of the tobacco industry. However, in the interests of accountability and transparency, we are now publishing and making publicly available those responses now. We are publishing responses from in full of those organisations who gave us permission. Names of the individuals submitting the responses on behalf of these organisations have been redacted where requested.

In order to meet our obligations under article 5.3 in relation to those responses with links to the tobacco industry where permission to publish was not granted, we have provided a list of these organisations in Annex A.

Organisation:

Sam Millicheap - British American Tobacco UK Limited (BATUK)

Do you have links to the tobacco industry?:

Direct links

Do you have links to the tobacco industry? If you have links (direct/indirect) to the tobacco industry, please explain what those are below:

British American Tobacco UK Limited is responsible for the importation, distribution and sale in the UK of a range of reduced risk, alternative nicotine products, primarily vaping products and tobacco-free oral nicotine pouches, as well as combustible tobacco products.

Do you have any additional feedback on the updated Regulations?:

British American Tobacco UK Limited ("BATUK") disagrees with a ban on single-use vapes for the reasons set out in its response to the previous consultation on the draft Regulations. However, if the Scottish Government intends to proceed with introducing a ban on single-use vapes, there remain some points within the definition of 'single-use' vape in paragraph 3 of the Regulations that we believe require amendment and/or clarification.

As we stated in our response to the previous consultation on the draft Regulations, the products that are within the scope of the ban should be clearly defined to provide certainty for businesses and enforcement authorities.

In particular, the use of the term 'coil' in paragraph 3(3)(b) of the Regulations requires clarification as it does not encompass all types of heating elements used in vapes. Specifically, it fails to account for the use of mesh and ceramic heating systems in vapes. Therefore, we suggest broadening the term in paragraph 3(3)b to ensure the definition does not leave any regulatory ambiguity while at the same time future proofing the regulation, should it come to force. Accordingly, we urge the Scottish Government to provide a definition that includes all the technology systems that can be used in vape products, to ensure the effectiveness of the regulation and prevent potential misinterpretation.

We propose the following amended definition of paragraph 3(3)(b) of the Regulations:

(3) For the purposes of this regulation, a vape is not rechargeable if it is designed to contain—

(a) a battery which cannot be recharged, or…

(b) a heating element or heating component (including but not limited to coil, mesh or ceramic systems), or a directly inhalable aerosol generator, which is not intended to be replaced by an individual user in the normal course of use, including any heating element, heating component, or directly inhalable aerosol generator, which is contained in a single-use cartridge or pod which is not separately available and cannot be replaced.

This revised definition ensures that all types of current and future heating elements are covered, thereby closing any potential loopholes and providing a more accurate reflection of the current vape market.

Do you have any views on what will be required to implement the ban on single-use vapes, including on enforcement?

Implementing an effective ban on single-use vapes would necessitate a comprehensive approach that addresses not only the domestic market but also the international online market, where sellers do not have any presence in the UK, and the illicit trade. With estimates suggesting that the online market and illegal vapes each constitute a third or more of the total vape market, these sectors are likely to expand in response to a ban. Ignoring these aspects of the market could render the ban ineffective, merely shifting the market from legitimate UK businesses to overseas traders and the illicit market, without any tangible benefits.

To ensure the effectiveness of a vape ban, it is crucial to concurrently regulate the international online market. This would entail implementing measures to prevent the import of single-use vapes. The overseas online market for vapes is vast and diverse, with a multitude of international vendors offering a broad spectrum of products. If a domestic ban on vapes is implemented without regulating the import of these products from online markets, consumers will simply alter their purchasing habits, moving from local stores to online platforms.

Such a shift would not only undermine the effectiveness of the ban but could also expose consumers to low-quality vaping products.

Given these considerations, any ban on the domestic sale of vapes should not proceed until the overseas online market is effectively regulated. A comprehensive approach to regulation is necessary to ensure that the ban achieves its intended purpose.

Moreover, banning the legal supply of single-use vapes would incentivise an already significant illicit market. For instance, Trading Standards has indicated that up to a third of vapes sold on high streets are illegal CTSI statement on current inssues relating to the sale of vapes in the UK . This illicit market will likely continue to supply products, including to underage consumers, while also disregarding product regulations. Therefore, the Government must act decisively to increase enforcement against the illicit market and the supply of products to underage consumers. This would require strengthening surveillance, enforcement, and penalties for non-compliance, to ensure that the ban on single-use vapes is effective.

We therefore, urge the Government to also consider the following policies which would further enhance compliance and product standards:

1. Strengthening how products are tested, notified, and brought into the UK, by:

a. Enhancing pre-market notification requirements, including mandatory 3rd party toxicological risk assessments and compliance spot-checks.

b. Increasing the cost of MHRA product notifications to £500 per product and £1,000 per year,

c. Requiring that products are fully tested in a recognised laboratory before they are shipped to the UK.

2. Increasing funding / strengthening capacity for the UK Border Force and Trading Standards to remove non-compliant products and impose stricter penalties for anyone caught importing or selling illegal vapes. We support fixed penalty notices for anyone caught importing or selling illegal vapes. Research commissioned by BAT found that almost a third of parents –31%, say fines of up to £100,000 for rogue retailers is their preferred sanction – which is in line with France.

3. Introducing specific licences for anyone selling vaping products, and the creation of a National Test Purchasing Scheme – ensuring retailers are held to account, with a requirement that they need to pass the test purchase scheme to retain their license; and providing that retailers can lose their licence if they are caught selling illegal vapes.

4. Introducing a de minimis excise duty on vaping products to bolster the monitoring and control of these products. Excise will also provide the Government with an additional source of revenue to fund enforcement.

5. Extend the track and trace system that is currently applied for tobacco products to vaping products, providing for greater point of entry authentication and supply chain oversight.

Do you have any comment or feedback on our interim Partial Business and Regulatory Impact Assessment (BRIA)?

The interim Partial Business and Regulatory Impact Assessment ("Partial RIA") fails to provide the evidence and analysis required to properly assess the proposal or support its implementation.

At the heart of the issues with the Partial RIA is its failure to assess impacts that could have a determinative effect on the policy choice. Critically, the Partial RIA fails to examine in any detail the impact of the proposed ban on people switching between single-use vapes and cigarettes, and the impact on the illicit market, notwithstanding that these are recognised as major risks of the proposal. By not properly considering potentially very substantive costs the Partial RIA is failing to properly assess the policy decision.

The Partial RIA substantially relies on the impact assessment published by Defra in March 2024, which considered costs of implementing a ban on single use vapes across the UK ("Defra's IA"), including adopting the methodology set out in that assessment. However, as BATUK set out in its response to the consultation on the draft regulations for England, Defra's IA does not provide a complete, evidence-based, proportionate basis on which to proceed with policy development for vapes.

Key weaknesses in Defra's IA that BATUK highlighted in its response included that:

1. even disregarding the potential impacts which are not properly considered (see below), Defra's IA indicates that the overall impacts of this policy could be a substantial negative benefit;

2. Defra's IA fails to examine in any detail the impact of the proposed ban on people switching between single-use vapes and cigarettes, notwithstanding that this is recognised as a major risk of the Proposal. This is a critical impact of the proposed ban that cannot be ignored. The UK DHSC has estimated the health benefits from tobacco product regulations in a wide range of previous impact assessments. The disregarded negative impacts from smokers failing to switch to single-use vapes or current single-use vape users switching back to smoking could be very significant and would be in addition to the estimated cost of the measure in Defra's IA.

3. The potential benefits of the proposal claimed in the Defra's IA, are also unjustified, including where:

a. Defra's IA does not address how a ban would apply to the 30-35% of sales of single-use vapes that are online where the online sellers have no physical presence in the UK, and which are outside of the jurisdiction of the UK Government regulators; and

b. Defra's IA fails to properly consider the risk of increased illegal vapes that could exacerbate the environmental impact of single-use vapes.

4. Further weaknesses of Defra's IA include that it:

a. fails to take forward policy options that would directly address the claimed market failures;

b. fails to consider how long-listed options used in combination may be a more effective way of achieving the policy objectives than the preferred option; and

c. fails to properly consider exemptions for elderly, disabled and other vulnerable users.

5. Overall, the evidence presented in Defra's IA does not support the positive rating of the preferred option (a ban on the supply and sale of single-use vapes).

We urge the Scottish Government to fully consider these issues in relation to the Partial IA. [A copy of our response to the consultation on the draft regulations for England, including our detailed comments on Defra's IA, is included with the posted copy of this response / We can provide a copy of our response to the consultation on the draft regulations for England, including our detailed comments on Defra's IA, on request.

Do you have any comment or feedback on our interim Fairer Scotland Duty Assessment Summary?

Not answered.

Do you have any comment or feedback on our interim Equalities Impact Assessment Results?

Not answered.

Do you have any comment or feedback on our Island Communities Impact Screening Assessment?

Not answered.

Do you have any comment or feedback on our interim stage 2 Child Rights and Wellbeing Impact Assessment?

Not answered.

What are your views on the accuracy and scope of the information used to describe the Strategic Environmental Assessment (SEA) environmental baseline set out in the Environmental Report?

Not answered.

What are your views on the reasonable alternatives set out in the Environmental Report?

Not answered.

What are your views on the predicted environmental effects as set out in the Environmental Report

Not answered.

What are your views on the findings of the Environmental Report and the proposals for mitigation and monitoring of the environmental effects?

Not answered.

Do you have any general comment or feedback on our Strategic Environmental Assessment (SEA) Environmental Report?

Not answered.

Organisation:

Scottish Grocers' Federation

Do you have links to the tobacco industry?:

Direct links

Do you have links to the tobacco industry? If you have links (direct/indirect) to the tobacco industry, please explain what those are below:

The Scottish Grocers' Federationis a trade body representing the Scottish convenience sector, many of our members’ stores sell tobacco and vaping products to the public. SGF also has a number of corporate members that either produce, manufacture, distribute or provide wholesale of tobacco and vaping products to convenience retailers.

As leading representatives of thousands of local shops across Scotland, providing essential services for their communities, SGF was disappointed that our response was one of the 307 responses removed from initial UK consultation on the single-use vape ban. SGF and Scottish convenience retailers are experts in this field, working to promote full compliance and encourage better practice throughout the supply chain. We are of the view that it is essential that both the UK and the Scottish Government listen to and engage with the views of legitimate business and retail, many of which are significantly impacted by these changes.

Do you have any additional feedback on the updated Regulations?:

SGF promotes responsible retailing, and we support the objective of reducing use of Nicotine Vaping Products among younger people and protecting the natural environment from the impact of litter.

Convenience retailers have significant experience implementing robust measures to prevent underage sales. For example, using good practice, such as Challenge 25, and instore procedures such as a refusal register and till prompts. SGF also launched a campaign in October 2023, with members, to provide 1,000 free vape recycling bins to convenience retailers in Scotland, which will be delivered this spring. This is part of our campaign to support the acceleration of recycling points for used vapes in Scotland and builds on the significant progress that has already been made. We also recently provided Challenge 25 posters and an example refusal register to stores across Scotland, which were distributed to approximately 8,000 subscribers of Scottish Local Retail magazine.

Balancing the dangers of vaping to young non-smokers against the clear benefits of vaping to adult smokers is an exceptionally difficult public policy issue. SGF’s Healthier Choices, Healthier Communities campaign aims to send a clear message that if you smoke and wish to quit, then consider vaping, but if you don’t smoke, don’t vape. (Healthier Choices, Healthier Communities: Reducing harm from smoking - SGF )

It is our view that single use vapes (including a choice of flavours that adult smokers use) are too critical to smoking cessation to restrict. Therefore, we disagree with the principle of the regulations and the implementation of a full ban on disposable vaping products, as set out in the Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024.

However, we previously noted a variety of concerns regarding 3(1) to (4) ‘Meaning of single-use vape’, regarding the definition of the items included in the ban and the potential burden on distributors to determine which products are categorised as ‘disposable’ based on being potentially rechargeable/refillable. Therefore, we welcome the updates to the definition of a ‘single-use vape’ and are content with the current wording in the regulation. SGF is of the view that, where possible, a consistent approach to the definition and regulation of vaping products should be maintained throughout the UK.

Finally, it is not clear how this regulation will in interact with policy and guidance across a number of regulatory areas, such as the Register of Tobacco and Nicotine Vapour Product Retailers. For example, it is not clear how and when the full list of banned products will be updated/removed from the UK Medicines and Healthcare products Regulatory Agency (MHRA) register and how this will be communicated and maintained. Which is essential to ensure that retailers, suppliers and manufactures have a correct and early understanding of the products that will need to be removed from display.

When the ban comes into force it may also contradict with established guidance for consumers across the UK. Such as advice provided by NHS England to use vaping products as a means of tobacco cessation (Using e-cigarettes to stop smoking - NHS ).

Do you have any views on what will be required to implement the ban on single-use vapes, including on enforcement?

Placing a ban or restriction on access to affordable single use vaping products risks an increase in cigarette consumption. NHS Scotland has previously said that:

“There is now agreement based on the current evidence that vaping e-cigarettes is definitely less harmful than smoking tobacco. Although most e-cigarettes contain nicotine, which is addictive, vaping carries less risk than smoking tobacco. Thus, it would be a good thing if smokers used them instead of tobacco”.

Evidence is now clear that too many young people are vaping. SGF is of the view that manufacturers and suppliers should rename and redesign the packaging of products to make them less appealing to children and young people, whilst not limiting their value as a cessation tool for adult smokers. For example, we also note that leading companies have already reviewed and changed descriptors where there is a perceived appeal to children. There is also work to be done by governments and authorities to enforce the rules that are already in place.

We recognise that disposable vapes present a difficult public policy balance between their place as a gateway to longer-term vape products, and the risk they present to the environment. However, on balance, SGF disagrees with the proposal to place an outright ban on disposable vapes.

As stated above, affordable, and easy access to vaping products is essential to those who wish to use vaping products as a cessation device and less harmful alternative to nicotine use. The ban disrupts more than 80% of the vape market in Scotland with little understanding of the impact on smokers who wish to use vapes to quit.

Therefore, placing a ban or restriction on access to affordable single use vaping products risks an increase in cigarette consumption. According to research conducted by our members, of 1,000 Scottish adults in June 2023, more than half of Scottish smokers had tried using vapes as an alternative source of nicotine.

In addition, restrictions on disposable vapes will inevitably and significantly fuel illicit trade in cheap and unregulated products. Fuelling organised crime and harming the wellbeing of communities. This is already a major factor contributing to youth vaping and the environmental impact and we note that the current regulations are only enforced to a limited extent and both Police Scotland and Trading Standards appear to have very limited resources to mitigate the rise in illicit goods that will result from the ban. Hence, SGF believes that the Scottish Government should commission an additional impact assessment on the illegal market. Followed by a significant uplift in resource available to Trading Standards in order to contain the expect increase in illicit goods.

It is also not clear what a ban on single-use will do to those irresponsible businesses that already sell vapes without age-restrictions. For instance, those businesses will seemingly continue to have access to these products in the absence of an import ban. It is also possible that the import vape market to continue to grow, although there is some chance those move to a ‘dark market’ in the coming years.

SGF have worked alongside Trading Standards and authorities across Scotland, to ensure full and active compliance with the regulations on the sale of tobacco products and e-cigarettes. Our updated retailers guide Regulations for NVPs and Tobacco Compliance in Scotland, is a refresh of our previous version published in 2016, is widely distributed by Trading Standards offices across the country, ensuring retailers are familiar with and understand the key elements of the laws currently in force. (Regulations for Nicotine Vaping Products and Tobacco Compliance in Scotland - SGF )

Nonetheless, Trading Standards presently do not have the resources to properly enforce the current regulation and that has created the situation leading to the problems highlighted. As a result, compliant businesses that are meeting all their requirements being targeted for tighter restrictions even though they are already part of the ongoing solution.

SCOTSS and Police Scotland resources, powers and capacities are limited, and we have been informed that no additional financial capacity to manage the ban has been made available (for instance, from the £30million previously announced by the UK Govt).

Although the Scottish Government has set a date for the ban to come into effect of 1st April 2025, as an industry standard, there should be a minimum implementation period of 12 months, after the required industry guidance has been published, based on finalised regulations, and appropriate frameworks have been established. This allows for unsold items to be processed through the supply chain, retailers to alter their stock and notify wholesalers and suppliers of their requirements, adjust store layout, amend digital payment software, change in-store notices and labelling, and raise public awareness/prepare customers regarding the changes.

The timeframe is a critical concern for our members. Therefore, it is vital that there is meaningful working with business. Such as a transitional working group and the reestablishment of the Scottish anti-illicit trade group which has not met in almost a year.

SGF would urge the Scotsh Government to continue to engage with industry on the rollout of the ban and support a business-friendly approach to the implementation of the ban. In particular, through a transitional period, providing suitable allowances for compliant retailers to meet the new responsibilities.

This should be followed with clear and comprehensive compliance guidance for retailers and a full public awareness campaign. Setting out clearly the new obligations under the regulations, providing training and assistance where possible to support the changes needed in store, and highlighting the penalties for non-compliance.

For those reasons, we share our sector colleagues concerns of the collective understanding of ‘all reasonable precautions’ as set out in 7 (1) to (2) ‘Defence of Due Diligence’ and support the call for additional guidance for retailers and enforcement officers.

Likewise, refusing a sale, asking for proof of age and across the counter disagreements are among the most common factors contributing to the number of incidents of abuse and threatening/violent behaviour toward shop workers. Therefore, it is critical to ensure that customers and the public are fully aware of the changes before they are introduced.

Furthermore, as indicated above, a significant increase in illicit products will likely have an environmental impact. A lot of emphasis has been placed on the environmental impact but there has been little public communication aimed at educating vapers on returning their used vapes. This also applies to retailers and their provision of vape take-back which is also being stepped up under the reform of WEEE.

We are concerned that our members may still be expected to take-back illegal vapes into their stores if required to provide in-store bins. This could be potentially dangerous, if products are unregulated, and could impact insurance premiums.

SGF launched a campaign in October 2023, with members, to provide 1,000 free vape recycling bins to convenience retailers in Scotland, which will be delivered this spring. This is part of our campaign to support the acceleration of recycling points for used vapes in Scotland and builds on the significant progress that has already been made.

We know from one of our members that one waste management company in Scotland, Total Environmental Solutions (TES) was already recycling more than 1mn vapes a year with capacity to increase this significantly. They also stated that these products are 98% recyclable which is absent from the impact assessment. Defra's own impact assessment states that SU vape are recyclable.

However, once a ban is in place there will be no valid recycling options for the illicit goods coming into the country. Therefore, by definition, we would expect to see 100% of illicit items being disposed of incorrectly.

Do you have any comment or feedback on our interim Partial Business and Regulatory Impact Assessment (BRIA)?

A typical convenience store offers a range of at least seventeen kinds of different product categories. While they are ancillary to wider ranges of grocery and retail, vaping products are one of the product categories that some customers enter the shop to purchase. Tobacco and e-cigarettes currently account for approximately 21.9% of the overall sales (UK wide).

From post office facilities, bill payment services and access to cash to deli counters, coffee and collection lockers, c-stores are designed to offer a wide range of services to their communities. A more restrictive range, not being able to provide access to the products or that a customer wants or being unable to provide a ‘good deal’ on the ‘full basket’ of items customers intend to purchase, could encourage customers to search out harmful illicit products and reduce both footfall and business viability. Potentially putting all these services at risk.

It is likely that local stores will see reductions in footfall as reusable products tend to provide more vape liquid. We may see increases in sales of reusable products, but this depends on Scottish Government's ability to tackle the illegal market that is increasingly present in Scotland.

Depending on the dimensions and reductions in product areas, or changes to the range/supply of products, some space planning and reorganization may be required. In extreme cases, the cost of moving a shelving unit in a convenience store can be approximately £13,000. Often with a two-year waiting list by specialist shop fitters.

Likewise, any loss in income must be either absorbed by the supply chain or passed onto customers. Which fuels the cost-of-living crisis and inflation. Due to the challenging economic circumstances of the past few years, there is very little room for businesses to absorb more costs. Meaning that prices must increase across a range of product areas just to keep businesses viable.

According to studies carried out by colleagues in the convenience sector (SGF), the disposable vapes ban will lead to more customers (24% of current users of disposable vapes) moving to the already burgeoning illicit vape market, costing legitimate Scottish businesses £67m in lost sales and millions more in the value associated with footfall loss, threatening the viability of some stores.

There may be a minor increase or sustained level of tobacco sales, due to the vaping ban. Which is directly contradictory to Scottish Government plans to ‘create a smoke free generation.’

In addition, retailers may look to bring in new range around this change that may enhance sales, for example a growth in oral nicotine products over the coming years.

With 5,171 convenience stores in Scotland, employing over 49,000 people. The sector has contributed over £10.6bn in Gross Value Added and over 9.1bn in taxes in the past year UK-wide. The pressure of overregulation across a range of product areas has substantially added to the cost of doing business in Scotland and puts at risk these essential local employers and services.

We would reiterate however that SGF promotes responsible retailing. For example, in Retailer’s Guide to vaping regulation in Scotland, which was referenced earlier, it provides a particular focus on the responsibilities and actions which retailers must take to be compliant with legal requirements (e.g., Tobacco register, Challenge 25/ Age-verification policy, and only sell vaping products with published notifications on the UK Medicines and Healthcare products Regulatory Agency (MHRA) etc).

Do you have any comment or feedback on our interim Fairer Scotland Duty Assessment Summary?

Not answered.

Do you have any comment or feedback on our interim Equalities Impact Assessment Results?

Not answered.

Do you have any comment or feedback on our Island Communities Impact Screening Assessment?

Not answered.

Do you have any comment or feedback on our interim stage 2 Child Rights and Wellbeing Impact Assessment?

Not answered.

What are your views on the accuracy and scope of the information used to describe the Strategic Environmental Assessment (SEA) environmental baseline set out in the Environmental Report?

Not answered.

What are your views on the reasonable alternatives set out in the Environmental Report?

Not answered.

What are your views on the predicted environmental effects as set out in the Environmental Report

Not answered.

What are your views on the findings of the Environmental Report and the proposals for mitigation and monitoring of the environmental effects?

Not answered.

Do you have any general comment or feedback on our Strategic Environmental Assessment (SEA) Environmental Report?

Not answered.

Organisation:

Association of Convenience Stores (ACS)

Do you have links to the tobacco industry?:

Direct links

Do you have links to the tobacco industry? If you have links (direct/indirect) to the tobacco industry, please explain what those are below:

In relation to the World Health Organization Framework Convention on Tobacco Control,

ACS has provided statement about ACS’ membership and funding structures that is included on ACS’ website here and is covered below:

Working with Suppliers - ACS

The Association of Convenience Stores provides three different packages to suppliers, these are the Connect, Club and Premier Club packages. The main focus of these packages is networking, events and insight about the convenience sector. The companies that sign up to supplier packages with ACS are of all different sizes and focus areas, including everyone from small EPoS suppliers and technology solutions companies, to multinational FMCG businesses, and all companies can access the same benefits from whichever package they take up, regardless of the category they trade in or service they provide.

While suppliers are included in updates from ACS about policy issues, and have access to briefings on policy developments through the ACS Online Portal, suppliers are not involved with the decision making process on policy issues and are not able to influence policy submissions or briefings to decision makers. ACS has a number of expert groups and committees that are made up of its retail members, as well as its main and independent boards. There is one supplier representative on the ACS Board which is made up of twenty directors.

ACS' core purpose is to engage with Government and other decision makers on the issues that matter to its members. ACS members are all retail businesses, ranging from independent retailers running one store through to large businesses operating hundreds of convenience stores across the UK. ACS members are consulted and involved in the policy forming process for all submissions to Government, which are all available on the ACS website here: Submissions - ACS

More information about the ACS executive team and the areas that we work on is available here: Our Team - ACS

Do you have any additional feedback on the updated Regulations?:

Part 1 – Introduction - Citation, commencement and extent

ACS notes that the Scottish Government has maintained its implementation date for April 2025 since the previous draft regulations. ACS acknowledges the Scottish Government’s policy intention to ensure the ban is implemented as soon as practically possible, but we recommend that the disposable vapes ban is not introduced until 12 months after the government have published final guidance on the interpretation of these regulations for both businesses and enforcement agencies responsible for enforcing the regulations. Retailers impacted by the ban will need to sell through existing stock in preparation for the ban to come in effect. This will require a co-ordinated effort across the entire business supply chain from manufacturers producing disposable vapes, the importers/distributors supplying the retail sector, and finally the retailers selling them to the end customer. A 12-month window also helps retail businesses educate their disposable vape customers on the legal changes and the alternative products available to them.

We want to support the government in developing this guidance to maximise clarity for retailers and their stores colleagues that will be implementing the disposable vapes ban. ACS has a number of Advice guides that we have designed to help retailers navigate the regulatory landscape including our Selling Vapes Responsibly Guide. These guides have been purpose-made to provide digestible and directly relevant information to convenience retailers on regulations directly impacting their businesses and we would welcome the opportunity to feed into government work on developing guidance for businesses.

Meaning of Single Use Vape 3 (1) to (4)

ACS welcomes the addition in the updated regulations of clause 3 (4) which provides further clarity on what separately available means in the context of defining a single use container. This underlined clarity provides clear parameters to businesses that a refillable vape must have a single use container that is separately available for purchase to a customer in their normal course of use. We also welcome the addition of “by an individual user in the normal course of user” through the definition of single use vape, to add clarity.

ACS acknowledges the consistency in definition across the UK Government and Scottish Government’s definition of single use vape. A consistent definition across the UK nations is crucial for the success of the policy; a uniform approach will provide assurance to businesses operating in England and Scotland on what products are in or out of scope, making it easier to prepare for the business and comply with the regulations.

While we do support a consistent approach across England and Scotland, we would again highlight our initial point we made in the consultation on the draft regulations that this definition is not consistent with wider legislation on the definition of a vaping product. In Scotland and across the UK there are multiple legislative definitions for the same product. The law in Scotland is currently based around the definition of a “nicotine vapour product” in the Tobacco and Primary Medical Services (Scotland) Act 2010 / Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.

Moving wider, the UK-wide definition in the Tobacco and Related Products Regulations 2016 is for an “electronic cigarette” and the age restriction brought in England under the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015 is for “nicotine inhaling products”. We do not want multiple definitions for a disposable vape as this could cause confusion for retailers and enforcement agencies. We therefore urge the Scottish Government to invest in publishing clear and practical guidance on its definition of a disposable vape that provides not only textual content but practical examples too. This will help reduce any potential for confusion and give retailers a clear understanding of what products are in or out of scope

Defence of Due Diligence 7 (1) to (2) As highlighted in our initial response to the draft regulations consultation, we need more reassurance about what accounts for “all reasonable precautions” and how retailers can set this out when challenged for example by an enforcement officer.

Powers of entry, investigation and examination etc. 9 (1) (b) (i) ACS welcomes the revision made in the updated regulations which enables enforcement officers to be accompanied by another person authorised by the enforcement authority, along with powers to apprehend any serious obstruction posed to that officer and the powers to bring relevant materials/equipment. Feedback from Trading Standards community highlighted that the previous draft regulations, which restricted the type of accompanying persons to only being a Trading Standards officer, were too restrictive to allow them to do their job effectively. The wider definition will enable a greater breadth of Trading Standards professionals to attend enforcement visits, providing more flexibility to the individual needs of local authorities.

Retailers may, especially during the introductory period of the disposable vapes ban, secure stock of vaping products in good faith that they include functions that mean they are not disposable, but there may be a disagreement with Trading Standards’ and suppliers’ interpretation of the regulation. A pragmatic approach to enforcement will be needed to address this. Part of the defence that should be available to retailers is that they have worked with reputable vape supplier that have advised them that the specifications of the vaping product meet those set out in the regulations. We recommend the above suggestion is made provision for regulation 7 and that this is set out in accompanying guidance to ensure retailers and enforcement officers are clear on what counts as “all reasonable precautions”

Do you have any views on what will be required to implement the ban on single-use vapes, including on enforcement?

Clear and Comprehensive Guidance

As set out above, we believe clear and comprehensive guidance is key to help businesses and the enforcement community understand how the regulations will be applied and what their obligations are. Building on the above points, we have outlined below a number of key features we believe will be crucial to determine the success of the guidance and, by extension, the effectiveness of the policy’s implementation:

• Consultation with industry - Since Scottish Government’s New Deal for Business, we have very much appreciated its pro-active engagement with industry on policy areas impacting convenience retailers. Following this, we would support the opportunity to meet with Scottish Government Officials and feed into the guidance it creates in the disposable vapes ban. Working with industry will play a key role in helping provide practical guidance businesses will need and use in the preparation for the disposable vapes ban.

• FAQs – The guidance will need to cover frequently asked questions from the retail and enforcement community. This feature will be great to cover technical aspects of the regulations which would not necessarily be best suited to be included in the main body of guidance.
• Practical examples – Diagram examples of products which are in or out of scope as well as an explanatory note providing a justification for this decision would be an invaluable resource for businesses and the enforcement community to bring to life how the regulations will be applied in a business setting.
• Contact information – The guidance needs to have a clear means for businesses to contact the government on specific technical information they may require.
• Clear outline of penalties – The guidance needs to clearly outline the steps and actions enforcement agencies can take against a business that does not comply with the regulations in Scotland. This will help businesses understand the penalties for non-compliance and help deter such action.
• Assurance on defence of due diligence - We need reassurance in the guidance about what accounts for “all reasonable precautions” and how retailers can set this out.

Enforcement

The most impactful action the Scottish Government can do to ensure the regulations are effectively implemented is to ensure Trading Standards in Scotland are equipped with the proper resources and funding to help them enforce the regulations. Recent evidence indicates that the vaping market is flooded with illicit product, with approximately 1 in 3 vapes being non-compliant (CTSI NIPS3 Review of Business Compliance In England 2022). ACS recently commissioned a report on level of funding required to effectively enforce the vaping restrictions which found that in Scotland £14.4 million of funding will be needed to be given over a five-year period to ensure trading standards are able to effectively enforce the vaping market. This uplift in funding is crucial to help secure a generational increase in the number of working Trading Standards officers in Scotland that will be needed to enforce the new regulations (Resource Analysis for Vape Enforcement in England)

ACS notes that the Scottish Government have not yet committed to additional funding for trading standards services in Scotland. Without more funding for trading standards, the laws will not be properly enforced and therefore will not act as an effective deterrent for criminal operators seeking to take advantage of the ban. Furthermore, separate consumer polling we commissioned by Yonder indicates that of those that are existing disposable vapers, 24% will continue to source disposable vapes after the ban comes in effect which will add to the already burgeoning illicit market (Yonder Consumer Polling Feb 2024, 2000 UK adults surveyed, 8% of the sample were disposable vape users). Given the risks that the disposable vapes ban poses to illicit activity, we would urge the Scottish Government to take forward our recommendation on further funding.

Public Education Campaign

Our research suggests that 8% of people who use disposable vapes (300,000 adult vapers) may move back to tobacco products (Yonder Consumer Polling Feb 2024, 2000 UK adults surveyed, 8% of the sample were disposable vape users). It is therefore important that the Scottish Government invest in a public awareness campaign that explains the legal changes to customers and the alternative options available to those people which are disposable vapers.

MHRA

We seek clarification that there will be a requirement for the MHRA to have reviewed and removed all disposable vaping products from their register before the ban is introduced. Moreover, provision must be made to ensure that no disposable vapes are notified and published to the register after the ban is introduced. This is essential to avoid confusion amongst retailers that are checking the register to see if reusable products have been notified and published on the website. The Scottish Government must work together with the UK and Welsh Government to ensure the changes are effectively made so businesses are able to use the service to identify, once the ban comes in effect, which reusable and/or rechargeable products have been published and notified on the website.

Do you have any comment or feedback on our interim Partial Business and Regulatory Impact Assessment (BRIA)?

ACS notes that the figures used to calculate projected losses for businesses because of the disposable vapes ban is based on DEFRA’s impact assessment. ACS has highlighted in our submission to the UK Government’s consultation on the draft regulations for a disposable vapes ban, that the figures used in the impact assessment underestimates the financial impact of a disposable vapes ban on retailers. Using average turnover and margin figures to calculate the impact on retail businesses has led to an inaccurate assessment of the value of this category. Feedback we have received from retailer members indicates that the average profit margin per disposable vape is between 45% to 50%. We therefore believe the projected figure does not capture the full extent of the financial impact the ban will have on retailers.

Do you have any comment or feedback on our interim Equalities Impact Assessment Results?

Not answered.

Do you have any comment or feedback on our Island Communities Impact Screening Assessment?

Not answered.

Do you have any comment or feedback on our interim stage 2 Child Rights and Wellbeing Impact Assessment?

Not answered.

What are your views on the accuracy and scope of the information used to describe the Strategic Environmental Assessment (SEA) environmental baseline set out in the Environmental Report?

Not answered.

What are your views on the reasonable alternatives set out in the Environmental Report?

Not answered.

What are your views on the predicted environmental effects as set out in the Environmental Report

Not answered.

What are your views on the findings of the Environmental Report and the proposals for mitigation and monitoring of the environmental effects?

Not answered.

Do you have any general comment or feedback on our Strategic Environmental Assessment (SEA) Environmental Report?

Not answered.

Organisation:

Imperial Brands PLC (IMB)

Do you have links to the tobacco industry?:

Direct links

Do you have links to the tobacco industry? If you have links (direct/indirect) to the tobacco industry, please explain what those are below:

Imperial Brands PLC (IMB) is a FTSE 100 business headquartered in Bristol in the UK and parent company of a dynamic international business specialising in tobacco and non-tobacco brands. Imperial Tobacco Limited (together with IMB) is the Bristol-based trading operation of IMB which distributes our products to the UK market.

Do you have any additional feedback on the updated Regulations?:

IMB continues to oppose restrictions on the sale and supply of disposable vapes (other than to under 18s). In line with our corporate purpose, we seek to offer adult consumers a choice of potentially reduced risk products. Disposable vapour products form an essential part of that offering. Adult smokers who are considering a switch may be more likely to try vaping using a disposable vape which is lower cost, rather than a refillable vape product which has a higher price point.

We have a zero-tolerance approach to youth access and use for all our products. We are committed to working with all stakeholders to reinforce the message that our products, including disposable vape products, are solely for use by existing adult smokers and adult nicotine users only.

We recognise the sustainability challenges associated with disposable products and, to that end, we ensure full compliance with existing environmental regulations, and we communicate guidance around responsible disposal to our consumers.

Marketed responsibly, we maintain that disposable vape products have a crucial role to play in tobacco harm reduction. They are an important option for adult smokers who value convenience and affordability, and who would otherwise continue to smoke combustible products.

Nevertheless, given that the Scottish Government appears intent on continuing to pursue this policy, it is right that these regulations are designed as effectively as possible. We welcome the Scottish Government’s revision of the definition of what it considers to be a disposable vape to ensure that pod-based vapes are not inadvertently captured within the definition of a disposable vape.

Given the dynamic nature of the vape category, we urge the Scottish Government to conduct regular reviews of the regulations, particularly to assess the impact of the disposable vape ban on consumer behaviour and to monitor the size of the illicit market. It is also imperative that the Scottish Government engages properly and fully with all stakeholders in the execution of relevant reviews.

Do you have any views on what will be required to implement the ban on single-use vapes, including on enforcement?

Given the continued popularity of disposable vapes, some consumers may choose to stockpile products ahead of the proposed 1st April 2025 deadline. The Impact Assessment (IA) suggests that this risk would be mitigated by increased monitoring and enforcement. However, this is difficult to understand: given that the purchase of disposable vapes would be legal before the ban comes into forces, there would be no policy or regulation to monitor or enforce. Similarly, while most retailers may manage their stock levels appropriately, some may not fully understand the impact of the impending deadline and may therefore inadvertently be left holding non-compliant stock after the 1st April 2025 deadline.

A ban of any product inevitably requires a deadline for implementation. However, if these regulations are to be introduced, a more balanced, phased approach would be to adopt a soft deadline in April 2025, followed by a sell-through period during which manufacturers and retailers can sell remaining stock (which has been placed on the market before 1st April 2025) in preparation for a subsequent hard deadline. Without a sell-through period, it is likely that some stocks of disposable vapes will need to be destroyed on or before 1st April 2025.

Following this deadline and a period of implementation, IMB would support rigorous enforcement of the new regulations to reduce the impact of the illicit market and to take strong action against the behaviour of irresponsible actors who operate within it.

Do you have any comment or feedback on our interim Partial Business and Regulatory Impact Assessment (BRIA)?

IMB previously set out its concern that the Scottish Government had not published an Impact Assessment (IA) with the original draft regulations. We expected to see an Impact Assessment that took full account of how adult vapers will respond to the disposable ban, for example, moving to refillable and/or rechargeable alternatives or, more concerningly, accessing the illicit market and/or returning to smoking. We welcome Scottish Government’s publication of an IA, but regret that it is does not provide sufficient consideration of consumer or retailer responses to a ban.

IMB does, however, welcome the IA’s brief acknowledgement of the existing dangers of the illicit vape market, especially its recognition of “banned ingredients, oversized tank sizes and exceeding legal nicotine strengths.” However, the IA suggests there “may” be a risk of the growth of an illicit market in response to the ban. It is our strong view that this is inevitable. In fact, an illegal vape market is already strong: according to data sourced from local authorities, as part of the Vape Club’s 2024 Illegal Vaping Report, 4.18 million illicit vapes were seized by Trading Standards between 2020-2023. However, these seizures represent just a fraction of the illicit market’s size in reality, with the Chartered Trading Standards Institute estimating that a third of adult vapers are already purchasing illicit vapes. A disposable ban will embolden this market. Nevertheless, when considering consumer responses to the ban, the IA suggests that:

Those who use single-use vape products may choose to switch to reusable vapes and some may choose to stop vaping altogether. Others may choose to smoke tobacco products but this would involve a significantly higher cost, both in terms of personal finance and wider health, social, and economic costs to society. Currently, it is not possible to accurately forecast these patterns following a ban.

While some consumers may stop vaping, move to alternative products, or indeed return to tobacco products, it is a glaring omission not to consider that consumers may seek the convenience and affordability of disposable vapes on the illicit market.

The IA implies that enforcement by Trading Standards will “mitigate against the risk associated with an illicit market for single-use vapes.” However, this lacks specificity, and our experience makes clear that Trading Standards already lack the necessary resources to tackle the significant illegal market in vapes.

While the IA refers to UK Government’s allocation of £30 million extra funding per year for enforcement, this will be shared among a number of enforcement agencies, including Border Force, and is unlikely to give Trading Standards any real increase in resources in order to effectively enforce this significant and unprecedented policy intervention.

As acknowledged in the IA, an estimated 25% of 15 year olds in Scotland have used a vape in the past 30 days and purchase from shops is the most common source. While the IA suggests disposable vapes are the most popular device used by under 18s, it is not clear that a ban of the category itself would reduce the levels of youth vaping given the ease at which under 18s are already able to purchase vaping products illegally.

Without substantial increases in resources and funding for Trading Standards, a disposable ban is therefore likely to lead to many more adult vapers and even more concerningly, under 18s, accessing the illicit market.

Furthermore, the IA refers to several international case studies to develop the rationale for the disposable vape ban. It is notable that it cites Australia as a positive example following its move prescription-only vape model in 2021. Despite Australia’s “stronger legislation, enforcement, education, and support” it is estimated that 87% of Australians who vape purchase from the illicit market. This should give the Scottish Government considerable pause for thought about how consumers respond to government interventions of this kind.

Do you have any comment or feedback on our interim Equalities Impact Assessment Results?

Not answered.

Do you have any comment or feedback on our Island Communities Impact Screening Assessment?

Not answered.

Do you have any comment or feedback on our interim stage 2 Child Rights and Wellbeing Impact Assessment?

Not answered.

What are your views on the accuracy and scope of the information used to describe the Strategic Environmental Assessment (SEA) environmental baseline set out in the Environmental Report?

Not answered.

What are your views on the reasonable alternatives set out in the Environmental Report?

IMB shares the SEA’s concerns regarding the environmental impact of disposable vapes, including the increase in littering rates of products in this category. Nevertheless, there are many other tools at the disposal of industry that the Government can mandate – or at a minimum, encourage through guidance – to reduce the environmental impact of disposable vapes without having to impose an outright ban. The SEA refers to the possibility of an information campaign to encourage more consumers to responsibly dispose of single-use vapes. As a responsible manufacturer, IMB is already supporting these efforts with our on-pack QR codes guiding consumers on how to dispose of vapes safely and we are rolling out vape recycling bins at retail outlets. We are also innovating to go beyond statutory requirements, for example our blu bar 1000 contains a removable battery for responsible battery disposable.

However, it is apparent that the Government rejected these when considering the impact of each alternative in isolation rather than considering whether such alternatives used in combination as part of a package of measures could achieve the Government's policy objectives. For example, a deposit return scheme combined with improved product design to increase recyclability and improved recycling infrastructure, which can be explained via a targeted information campaign.

Furthermore, the SEA’s reasonable alternatives do not sufficiently consider the wider impact of a growing illicit market on the environmental objectives the SEA seeks to achieve.

What are your views on the predicted environmental effects as set out in the Environmental Report

Not answered.

What are your views on the findings of the Environmental Report and the proposals for mitigation and monitoring of the environmental effects?

Not answered.

Do you have any general comment or feedback on our Strategic Environmental Assessment (SEA) Environmental Report?

As a responsible manufacturer we fully understand environmental concerns about disposable vapes and are working hard to address this in our portfolio through consumer-centric, sustainable innovation. However, there are many other tools at the disposal of industry that the Government can mandate for – or at a minimum, encourage through guidance – to reduce the environmental impact of disposable vapes without imposing an outright ban.

As mentioned above, our recently launched blu bar 1000 has a removable battery, which allows for responsible battery disposal. The Scottish Government has not fully considered how innovations such as this could improve the sustainability of disposable vapes, thereby achieving the Scottish Government's environmental objectives without the need for an outright ban. A ban on disposable vapes would only embolden irresponsible actors in the illicit market who consistently disregard their environmental responsibilities. This does not appear to have been properly considered.

The SEA is right to highlight the recent finding that 5 million disposable vapes are thrown away each week in the UK. However, not even the organisation behind this figure - Material Focus - believes they should be banned as a result. Its Executive Director warned that a ban would “flood” the market with illicit devices. We agree.

It is welcome that the SEA goes further than the interim Partial Business and Regulatory Impact Assessment in acknowledging that the proposed ban will “not entirely eliminate single-use vapes from the litter stream, given that illegitimate and illegal sales may continue after the implementation of the regulations.” However, it is inevitable that illegal sales will continue, irrespective of a disposable vape ban. The growth of the illicit market would compound many of the environmental concerns that form the rationale for the ban in the first place.

IMB currently employs measures such as on-pack QR codes to guide consumers on how to dispose of vapes safely, including a removable battery in the aforementioned blu bar 1000 and the expansion of a roll-out of vape recycling bins at retail outlets.

In the UK Government’s consultation paper, Creating a smokefree generation and tackling youth vaping “improved product design” is cited as an alternative to an outright ban. IMB’s extensive research and development capabilities enable us to continuously explore ways to improve our devices, including mitigating their environmental impact and improving their recyclability. The EU is moving towards ensuring all battery devices are removable, and we are leading the development of devices that meet these criteria, having already taken a device to market (blu bar 1000) with a removable battery.

The SEA refers to Waste Electrical and Electronic Equipment Regulations which requires all producers to offer a ‘take- back’ solution to consumers. IMB’s vaping brand, blu, offers this solution through the blu.com website but government must take action against brands that are found to be in breach of this requirement.

In considering producer obligations – and as IMB set out in its response to the Defra WEEE consultation – we want to stress the importance of sanctions against irresponsible, free-riding producers of illicit, non-compliant vapes (making up a significant percentage of vapes present in the UK market) and their agents. It is not acceptable that responsible producers foot the bill while a lack of enforcement (and the absence of sanctions) does nothing to deter free-riding producers of illicit, non-compliant vapes and their agents. Regrettably, these irresponsible manufacturers will likely be the principal benefactors of the ban on disposable vapes.