Vaping products - tightening rules on advertising and promoting: consultation analysis

1 Executive Summary

Introduction

This executive summary presents the main findings of the Scottish Government vaping products - tightening rules on advertising and promotion consultation[1]. The consultation ran from 3 February 2022 to 29 April 2022 on the Scottish Government Citizen Space website. The consultation sought views on proposed regulations which aim to strike a balance between protecting non-smokers and making information available to smokers. The responses and consultation analysis will help the Scottish Government to finalise the scope of these regulations.

A total of 757 validated responses were received to the consultation and the vast majority were from individuals – there were 43 organisational responses. Organisations that submitted a response include local government, health organisations, the tobacco industry, the vaping sector, and other organisations (e.g. those that sell tobacco and vaping related products).

The consultation attracted polarising views.

Individual respondents can be categorised into two main groups:

• Smokers, ex-smokers, dual users (i.e. electronic cigarette users and cigarette smokers), and those who only use vape products and/or who know someone who uses vape products.
• Those who feel that current advertising and promotion of vaping products is too attractive/appealing to children, young people, and adult non-smokers. This includes parents/guardians, teachers, and those who work in a health setting.

Individual responses to closed questions in the consultation are typically split 50:50 (i.e. roughly the same proportion of individuals support the Scottish Government proposals as those individuals who do not support the proposals).

In terms of organisation respondents, those who support the proposals outlined in the consultation document are in the main local government and health organisations. Those organisations who are less likely to support the proposals are the vaping sector, tobacco industry, and other organisations (e.g. those that sell tobacco and vaping related products).

The percentages reported in the Executive Summary may not always total 100%. We report on the proportion of respondents who “support”/“agree” or “do not support”/”disagree” with each proposal. The remainder of respondents answered “don’t know” to the closed questions. For each question, we also present a summary of the qualitative feedback received from respondents to open-ended questions (i.e. free text questions).

There was a technical problem with the Citizen Space website. It was not possible for respondents to submit an open-ended response (i.e. free text) to Question 2 (Do you agree with proposal to extend restrictions on advertising these products in the ways described above?) or Question 3 (Do you agree with proposal that in-store promotional displays should be banned?). While it was possible for all respondents to answer the closed questions, the qualitative analysis presented in this report for these two questions is limited to non-Citizen-Space submissions.

Despite this limitation many of the points made are echoed in later sections of the consultation so this is not felt to be a significant limitation of the consultation.

Question 1: Do you agree that we should be seeking to limit use of these products as a cessation aid and restrict exposure to them by non-smokers?

The views of respondents are mixed.

Overall, 50.7% of all respondents agree that the Scottish Government should seek to limit use of these products as a cessation aid and restrict exposure to them by non-smokers. The level of support among organisation respondents is higher than among individual respondents (73.2% and 49.4% respectively). The main points put forward by all respondents in support include that: adult smokers should be able to make informed decisions on the options available to them to stop smoking; it would limit the promotion and appeal of vaping products to people who have never smoked and young people; and to improve public health.

Almost half of all respondents disagree with the proposal (47.6%). Individuals are more likely than organisations to disagree (49.1% and 22.0% respectively). The main points put forward by all respondents who disagree with the proposal include: freedom of choice; the need for adult smokers to have sufficient information to make an informed choice; a need to further promote the benefits of vaping over smoking; and that vaping products are a consumer product.

Question 2: Do you agree with the proposal to extend restrictions on advertising these products on billboards and advertising hoardings, on buses and vehicles, on leaflets and flyers and on moving video advertising apparatus?

The views of respondents are mixed.

Overall, 48.5% of all respondents agree with the proposal to extend restrictions on advertising vaping products. The level of support among organisation respondents is higher than among individual respondents (58.1% and 47.9% respectively). The main points raised by those respondents in support include that it would: have a positive impact on children and young people (e.g. reduced visibility of vaping products would mean they may be less likely to try them); ensure advertising does not directly or indirectly target or appeal to children, young people, and adult non-smokers; and help to reduce health harms.

A similar proportion of all respondents disagree with the proposal (48.2%). Individuals are more likely than organisations to disagree (49.0% and 34.9% respectively). The main points raised by respondents who disagree with the proposal include that: there is an existing strong regulatory framework; there is a risk that the proposal could undermine public health; it would reduce the visibility of vaping products to adult smokers looking to move away from smoking; and it could worsen perceived existing high levels of misinformation on the relative harms of vaping and smoking.

Question 3: Do you agree with the proposal that in-store promotional displays should be banned?

Responses are mixed, however, more respondents do not support the proposal.

Less than half of all respondents agree with the Scottish Government proposal that in-store promotional displays should be banned so they are not used as an alternative means to advertise these products (44.8%). The level of support among organisation respondents is higher than among individual respondents (61.9% and 43.8% respectively).

The main point raised by all respondents in support of the proposal is reduced visibility and accessibility of vaping products to non-smokers.

Over half of all respondents disagree with the proposal (53.8%). Individuals are more likely than organisations to disagree (54.8% and 35.7% respectively). The main points raised by those respondents who disagree with the proposal are a repeat of views raised to earlier consultation questions. This includes: an existing strong regulatory framework; further regulation is considered disproportionate; challenges in implementation; a perceived insufficient evidence base; and it could worsen perceived existing high levels of misinformation. An increased focus on reducing the appeal of e-cigarette products to unintended audiences and ensuring existing regulations are sufficiently enforced were noted by some organisations to be more appropriate.

Both those respondents who support and those who do not support the proposal call for further clarity and guidance from the Scottish Government on the proposal. For example, some respondents asked in their response whether there would be any exemptions within specific settings.

Question 4: Do you support the proposal to make brand-sharing an offence?

The views of respondents are mixed.

Overall, 47.9% of all respondents support the Scottish Government proposal to make brand-sharing an offence. The level of support among organisation respondents is higher than among individual respondents (73.7% and 46.6% respectively). The main points raised by those respondents in support of the proposal are: there is a duty to protect children and young people as some groups find this advertising more appealing and attractive; it is felt to be a proportionate approach; and it would bring this advertising in line with that for tobacco.

A slightly smaller proportion of respondents do not support the proposal (44.6%). Individuals are more likely than organisations to not support the proposal (46.1% and 15.8% respectively). The points raised by those respondents who do not support the proposal echo views that have been outlined to earlier questions. Additional points raised include: brand-sharing is not considered commonplace in the industry; additional regulation is felt to be disproportionate; the important role of Trading Standards in tackling breaches of current regulation; and a perception among some individual respondents that the proposals amount to scaremongering.

Question 5a: Do you support the proposal to make free distribution of vaping products an offence?

The views of respondents are mixed but with more against the proposal.

Less than half of all respondents support the proposal that free distribution of vaping products should be an offence (42.7%). The level of support among organisation respondents is higher than among individual respondents (68.4% and 41.4% respectively). The main point raised by those responding positively is that any free distribution of vaping products should be limited to the NHS or charities to prevent free distribution of vaping products to children and non-smokers. There is, however, some concern that a blanket ban on commercial organisations may be inappropriate and exemptions could be considered e.g. elderly and metal health residential settings were raised by respondents.

Over half of all respondents do not support the proposal (53.5%). Individuals are more likely than organisations to not support the proposal (55.0% and 26.3% respectively).

The main reason put forward by those respondents who do not support the proposal is that the free distribution of vaping products allows smokers to sample them, and raises awareness of, and encourages take up of vaping. There is, however, broad support among these respondents that free distribution should be limited to over 18s.

Question 5b: Do you support the proposal that nominal pricing of vaping products should be an offence?

Just over one-third of all respondents support the proposal that nominal pricing of vaping should be an offence (36.8%). The level of support among organisation respondents is higher than among individual respondents (63.2% and 35.4% respectively).

It should, however, be noted that there may have been some confusion with this question. The question is designed to ask views on the practice of cutting prices (e.g. say from £50 to £15) on kit to encourage people to try the products and buy them. Some respondents have interpreted this question, for example, to concern offering end of stock items at lower prices. The main point raised by respondents in support of the proposal is that nominal pricing should be restricted as it is used to attract children and teenagers to start vaping. Respondents’ views were that a lower price makes it more affordable and attractive for these age groups.

Just under two-thirds of all respondents do not support the proposal (60.1%). Individuals are more likely than organisations to not support the proposal (61.7% and 31.6% respectively). The main points raised by those responding in this way are similar to responses for Question 5a - respondents believe that nominal pricing will widen access to vaping to adult smokers and should therefore be encouraged.

Question 6: Do you support the proposal to make sponsorship agreements in respect of vaping products an offence?

The views of respondents are mixed.

Less than half of all respondents support the proposal to make sponsorship agreements in respect of vaping products an offence (44.9%). The level of support among organisation respondents is higher than among individual respondents (73.0% and 43.5% respectively). A prevalent view among organisation and individual respondents is that a ban in sponsorship arrangements is necessary to protect children and non-smokers from being exposed to vape product advertising. These respondents express concern that vape product sponsorship of sports teams, music events or nightclubs glamourises vaping and encourages uptake amongst young people and non-smokers.

Just under half of all respondents do not support the proposal (48.7%). Individuals are more likely than organisations to not support the proposal (50.2% and 18.9% respectively). The main point raised by those responding in this way is that if sponsorship encourages the take up of vaping amongst adult smokers, then this is a positive thing (e.g. as a route to stop smoking or to denormalise tobacco products).

Question 7: Do you support the proposal to introduce exemptions to allow advertising at trade-only events?

There is broad support for the proposal among respondents.

Under two-thirds of all respondents support the proposal to introduce exemptions to allow advertising at trade-only events (60.2%). The level of support among organisation respondents is higher than among individual respondents (73.0% and 59.5% respectively).

There appears to be some confusion among respondents with this question as 75% of qualitative comments from those that do not support the proposal (i.e. answered “No” to the closed question”) make points in support of it. It is therefore likely that support may be higher than 60.2%. The main points raised by these respondents are that this type of advertising is beneficial to get smokers to take up vaping and move away from tobacco, and that there is not much point in having a trade show if advertising at it is to be banned.

Just over one-quarter of all respondents do not support the proposal (27.9%). Individuals are more likely than organisations to not support the proposal (29.0% and 8.1% respectively). Among those respondents that appear to genuinely oppose the proposal, the main comments are that there should be a blanket ban on advertising vaping products and there should be no exemptions due to the addictive nature and harm associated with vaping.

Question 8a: Do you support the proposal that fines and penalties should mirror those already in place for tobacco products?

The views of respondents are mixed.

Around half of all respondents support the proposal that fines and penalties should mirror those already in place for tobacco products (51.1%). The level of support among organisation respondents is higher than among individual respondents (81.1% and 49.6% respectively). The main point raised by respondents in support of the proposal is that it would protect people, particularly non-smokers, never smokers, children and young people from the negative health harms of vaping products. A consistent approach to that for tobacco products is also welcomed by these respondents. It is said that this would ensure greater clarity of messaging and more effective and efficient enforcement by Trading Standards. There is also feedback among this group of respondents that further discussion with stakeholders is required to ensure a proportionate approach given there is evidence that vaping is less harmful than tobacco products.

Less than half of all respondents disagree with the proposal (44.5%). Individuals are more likely than organisations to disagree with the proposal (46.1% and 13.5% respectively). The main points raised by those responding in this way are that the proposal does not consider existing research that shows vaping and tobacco products are different products and have different levels of health risks and harms, and that the proposal may also limit the benefits of vaping products as a cessation aid. A more proportionate approach is supported by these respondents.

Question 8b: Do you support the proposal that defences should be as laid out as outlined in the Consultation Document?

The views of respondents are mixed.

Around half of all respondents support the proposal that defences should be as laid out as outlined in the Consultation Document (49.5%). The level of support among organisation respondents is higher than among individual respondents (71.4% and 48.5% respectively). The main points raised by those respondents in support of the proposal are that the proposal is reasonable and appropriate, and that it would help ensure a consistent approach with tobacco.

Some 39.8% of all respondents disagree with the proposal. Individuals are more likely than organisations to disagree with the proposal (41.0% and 14.3% respectively). Many of the comments received from these respondents did not relate to the question.

Where relevant points are made, some respondents felt that there is a potential loophole in mirroring the defences in the 2002 Act as their view is that there is too much of a focus on the defences not being the intention to commit an offence. Some local government respondents suggested it would be appropriate to include “a defence of exercising all reasonable precautions and due diligence” rather than simply mirroring the defences of the 2002 Act.

Question 8c: Do you support the proposal that officers of local authorities should be responsible for enforcement?

The views of respondents are mixed but with more in favour of the proposal.

Around half of all respondents support the proposal that officers of local authorities should be responsible for enforcement (49.7%). The level of support among organisation respondents, including but not limited to local government respondents, is higher than among individual respondents (94.3% and 47.5% respectively). Respondents in support of the proposal note that trading standard officers within local authorities are best placed to help enforce the proposals. Respondents also considered it logical to align enforcement with trading standards who already deal with UK-wide vaping regulations and tobacco enforcement and other areas (e.g. alcohol).

Over one-third of all respondents do not support the proposal (37.2%). Individuals are more likely than organisations to disagree with the proposal (38.9% and 2.9% respectively).

Both respondents who support and who do not support the proposal expressed concern about the capacity and resource constraints within local authorities, and a need for continued and additional funding to support implementation of the proposal.

Questions 9a and 9b: Please indicate the impact the proposed policy would have on individuals, and on those living with socio-economic disadvantage.

A higher proportion of all respondents report that the proposed policy would have a negative impact on individuals (50.5% compared to 36.9% responding that it would have a positive impact) and on those living with socio-economic disadvantage (48.6% compared to 25.5% responding that it would have a positive impact).

There is wide support across consultation responses (e.g. in particular from organisations) for a balanced approach to ensure that certain population sub-groups are not disadvantaged by the proposed policy. In terms of the impact on individuals, much of the feedback from respondents does not relate to the protected characteristics outlined in the Consultation Paper, except for suggesting a positive impact in relation to age (i.e. children and young people aged under 18 years). To a much lesser extent, impact in pregnancy is also mentioned. Many of the other comments echo those made across earlier consultation questions. Additional themes to emerge include:

• Inequalities. For example, health organisations feel the that proposals would reduce health inequalities in the long-term. The vaping sector and tobacco industry feel that the policy changes may lead to an increase in the number of preventable deaths and worsen existing health inequalities.
• Environmental impact. For example, some individual respondents and health organisations mention reduced plastic waste and reduced exposure to second-hand vape aerosol.

It was noted that the Scottish Government should undertake an impact review to ensure people living with socio-economic disadvantage are not disproportionately affected by the proposed policy.