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

9 Fines and Penalties

9.1 Question 8a – Fines and penalties

Chapter 2 of the 2016 Act sets out what the maximum penalties are for contraventions of the proposed restrictions. The restrictions proposed in this consultation would be contained in regulations made under that Act and penalties equivalent to similar offences in relation to tobacco.

The Scottish Government propose that the maximum penalties for these offences introduced through the Regulations should be the same as the maximum penalties which apply to similar offences in relation to tobacco. The Scottish Government consider that those penalties are dissuasive but proportionate. There is a distinction made in the 2002 Act between the maximum penalty for the offence of obstructing an authorised officer and the maximum penalty for all the other offences which would also be the case under these proposed regulations.

The maximum penalty for a person found guilty of an offence which involves obstructing an authorised officer would be a fine not exceeding level three on the standard scale (£1,000). For all other offences in respect of advertising and promotion we will be mirroring those set out in the 2016 Act, meaning the maximum penalty for a person found guilty is: (a) on summary conviction to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both, or (b) on conviction on indictment to imprisonment for a term not exceeding two years, or a fine, or both.

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

Table A8a (Appendix A) provides the quantitative response to Question 8a.

The views of respondents are mixed:

• Around half of all respondents support the proposal (51.1%) that fines and penalties should mirror those already in place for tobacco products. The level of support among organisation respondents is higher than among individual respondents (81.1% and 49.6% respectively). Among organisation respondents this includes health organisations, local government, and the tobacco industry.
• 44.5% of all respondents do support the proposal. Individuals are more likely than organisations to not support the proposal (46.1% and 13.5% respectively). Among organisation respondents this includes the vaping sector.

9.1.1 Respondents who support the proposal

Just over one-tenth of all respondents who support the proposal that fines and penalties should mirror those already in place for tobacco products provide further explanation.

Theme 1: Health harms

Some respondents, including health organisations and individuals, state that the proposal would protect people, particularly non-smokers, never smokers, school children and young people from the negative health harms of vaping products.

Reference is made by these respondents to the use of the bright colours in advertising which may be more attractive to those aged under 18 years. They suggest that fines and penalties would act as a deterrent and help to prevent vaping products being a stepping-stone to tobacco products and addiction.

Theme 2: A consistent approach

Respondents, including health organisations and individuals, feel that having the same level of fines and penalties as tobacco products is important to address breaches in advertising. These respondents say that different fines and penalties may compromise the ability to address the negative health effects of vaping and tobacco products.

Health organisations note that a consistent approach would ensure greater clarity of messaging and would allow for more effective and efficient enforcement by Trading Standards. Some health organisations, however, call for further discussion and debate with the Scottish Government as to whether the benefits of a consistent approach outweigh adopting a more proportionate approach based on the lesser-known longer-term health harms of vaping products.

Despite agreeing with the proposal, some of these respondents question whether it is appropriate to have the same fines and penalties when comparing the health harms of different products. For example, several health organisations state that there is scientific evidence that vaping is less harmful than tobacco products and that further discussion to consider the proportionality of fines and penalties is needed. These respondents acknowledge, however, that having different fines and penalties may confuse the clarity of messaging and effectiveness of enforcement.

Another view expressed (largely by individual respondents) is that both vaping and tobacco products contain nicotine therefore fines and penalties should be the same. These respondents feel that both products have a negative impact on individual and public health (even if the full impact of vaping products long-term use, with or without nicotine, is not yet fully known) and addictive behaviour.

“It is important that we reach a point of clarity where this is concerned and aligning with tobacco is important to protect non-smokers and in particular the next generation of potential never smokers from nicotine addiction, potentially leading to tobacco addiction.”

Joint response from: Scottish Directors of Public Health Group (SDsPH); Public Health Scotland (PHS); and Scottish Health Promotion Managers (SHPM).

Theme 3: Fixed Penalty Notices

Raised to a lesser extent, responses from local government who support the proposal highlight the potential value of Fixed Penalty Notices.

“We would also welcome the adoption of a Fixed Penalty Notice scheme for these offences as an alternative administrative penalty, which would lead to faster resolution and leave reporting to the Procurator Fiscal for only the most serious non-compliances. It is our experience that this has worked well with the Tobacco and Primary Medical Services (Scotland) Act 2010”.

Aberdeen City Council

9.1.2 Respondents who do not support the proposal

Over one-quarter of all respondents who do not support the proposal that fines and penalties should mirror those already in place for tobacco products provide further explanation.

Theme 1: Vaping products and tobacco products are different

The most common theme to emerge, largely from individual respondents and the vaping sector, is that vaping and tobacco products are different products with different levels of harm and risk.

For example, some of these respondents highlight that tobacco products contain other harmful ingredients (e.g. tar) which are not in vaping products – also some individuals note that they use vaping products that are nicotine-free.

Raised to a lesser extent, these respondents feel that the proposal could be counter-intuitive and turn people towards tobacco products by sending a message that the use of vaping and tobacco products carry the same levels of health risks.

Theme 2: The proposal is not considered proportionate

The vaping sector and some individual respondents urge the Scottish Government to adopt an approach to fines and penalties which is proportionate, and which reflects the lower levels of known risk and health harms associated with vaping products compared to tobacco products.

A few individuals go further and say that there should no rules or restrictions at all to the promotion of vaping products given its potential as an alternative to tobacco products.

9.1.3 A need for effective enforcement

Similar to the points raised above regarding equivalence of products, a view from the vaping sector (both those who support and those who do not support the proposal) is that there should be greater enforcement and awareness raising of existing regulations (e.g. stricter penalties for illegal/non-compliant vape products, youth access to vape products) rather than aligning fines and penalties with tobacco products.

These respondents suggest that the proposal adds to the issue of misinformation regarding the relative health harms and risks of vaping products compared to tobacco products.