Report to the Tyne and Wear Trading Standards Joint Committee 7 November 2019 Response on the Consultation on The Post Implementation Review of Tobacco Legislation.

Anneliese Hutchinson, Service Director, Communities and Environment, Gateshead Council

Purpose of the report

To update the Committee on the regional response provided to the Department of Health and Social Care’s consultation on the Post Implementation Review of Tobacco Legislation. The consultation ran from the 22 July 2019 to the 15 September 2019.

Context

Consultation questions

Section 1: The Tobacco Advertising and Promotion (Display) (England) Regulations 2010

These Regulations apply to the display of tobacco products in small and large shops (display ban) and came into force on 6 April 2012 in larger shops and 6 April 2015 for all other outlets.

The Regulations prohibit the display of tobacco products in small and large shops, allowing trading to continue but preventing them from being used as promotional tools. All retailers are required to cover up cigarettes and hide all tobacco products from public view.

Objectives

To protect children and young people from health harms of smoking.

Create a supportive environment for adults who are trying to quit smoking by implementing the prohibition of tobacco products displays.

The regulations recognise that retailers need to be able to serve customers and restock products, and that staff need to know where products are kept.

Question: Do you think the display ban of tobacco in small and large shops has helped to reduce the number of children and young people smoking?

Yes, we think it has. We have taken the view that legislation is an integral part of comprehensive tobacco control programmes and that it is impossible to separate out the impact of each of the individual pieces of legislation being consulted on. Tobacco control legislation is most effective when all the related Regulations work together, therefore, trying to identify which legislation has had which impact on smoking uptake or quitting, whether among adults or children, is not practicable.

So too, is it impossible to separate out the impact of legislative and non-legislative tobacco control activity, for example trying to determine if a reduction in youth smoking is the result of point-of-sale display legislation or the result of media campaigns and public messages that have been in circulation since the various pieces of legislation came into force. In reality it is a combination of all of these factors.

We would like this context to be applied across each of the answers to the questions in this consultation, with the understanding that the preservation and strengthening of current legislation, plus the introduction of additional legislation as outlined in the February 2019 report from the All Party Parliamentary Group on Smoking and Health on ‘Delivering the vision of a ‘Smokefree Generation’ and suggested throughout this response and will all contribute to the move towards a smoke-free 2030, namely:

‘Making the polluter pay’; a charge on the tobacco transnationals

Reducing the affordability of tobacco

Retail licensing

Collection and publication of tobacco manufacturers’ sales and marketing data

Increased funding for education campaigns

Support for innovative regional collaboration

Raising the age of sale of tobacco from 18 to 21 years

Government mandated pack inserts to support quitting

Enhanced guidelines on smoking on screen (film and TV)

The display ban of tobacco in England in small and large shops has helped to reduce the number of children and young people smoking because it forms an important part of comprehensive tobacco control.

Question: Do you think the tobacco display ban has encouraged and supported adult smokers to quit?

Yes, we think it has. We have taken the view that the available evidence suggests that the display ban of tobacco in small and large shops has encouraged and supported adult smokers to quit.

The primary enforcement agency of the point-of-sale Regulations continue to be Trading Standards services. We have taken the view that our services continue to remain vital in both monitoring the legislation being reviewed in this consultation and in the delivery of tobacco control.

Each of our local authority services as with many others nationally, have had their funding reduced significantly during austerity which has reduced our capacity to conduct and deliver on some of our services. An opportunity for their funding could be through the introduction of a ‘polluter pays’ charge (fixed levy) on the tobacco companies.

Question: Is the display ban an effective way to protect children and young people from taking up smoking and supporting those who wish to quit?

13.	Yes, we think it is. The fact that rates are now at an all-time low also reinforces the important message that implementation of legislation works, and that additional legislation will help to accelerate the decline and increase the likelihood of achieving smoke-free by 2030.

14.	The objectives of the legislation remain appropriate and could not be met by other means or less regulation, so we have taken the view that there is no justification for repealing them. However, to support the objective of smoke-free by 2030, as a matter of priority we recommend that the Government explores options for:

‘Making the polluter pay’ by placing a charge on the tobacco transnationals; a levy which 73% of the North East public support (YouGov*)

Increasing the age of sale of tobacco products from 18 to 21years. 61% of the North East public support this (YouGov*) along with over half (52%) of retailers in the Fresh-commissioned area.

Introducing licensing for tobacco retailers. The majority of the public in the North East (80%) (YouGov, 2019*) as well as retailers in the 7 Fresh commissioning local authorities (70%) (NEMS 2019**) support such a move.

15. We have taken the view that there is no justification for any relaxation of the Regulations in the light of economic concerns.

Section 2: The Tobacco and Advertising (Specialist Tobacconists) (England) Regulations 2010

These Regulations apply to the display of tobacco products in Specialist Tobacconists and came into force on 6 April 2015.

17.	These Regulations provide exemptions for specialist tobacconists to the general prohibition of the display of tobacco products. They allow tobacco products to be displayed within specialist tobacconists as long as they are not visible from outside the shops. Additionally, the legislation permits tobacco advertising provided it is in, or fixed to the outside of premises of a specialist tobacconist and complies with prescribed conditions.

Objectives

To protect children and young people from the health harms of smoking.

Create a supportive environment for adults who are trying to quit smoking by implementing the prohibition of tobacco product displays.

The regulations recognise that retailers need to be able to serve customers and restock products, and that staff need to know where products are kept.

Question: Do you think the display ban of tobacco in specialist tobacconists has helped to reduce the number of children and young people smoking?

18. Yes, we think it has. We have taken the view that as part of the broader legislative package, which are helping to denormalise tobacco use, these Regulations have been effective in reducing smoking among children and young people.

19. Given the exemptions applicable to the small number of specialist tobacco retailers, we have taken the view that the Government should designate specialist tobacco retailers as age-restricted premises in line with the current age of sale for tobacco products.

Question: Do you think the display ban in specialist tobacconists has encouraged and supported adult smokers to quit?

20. We think it has. We have taken the view that given that these Regulations have been part of a broader package of effective legislation, we believe they have had a positive impact in encouraging and supporting adult smokers to quit. However, we recommend that the Regulations are strengthened further as described previously.

Question: Is the display ban in specialist tobacconists an effective way to protect children and young people from taking up smoking and supporting those who wish to quit?

21. Largely we think it is effective. Because of the exemptions outlined above, we have taken the view that there are still avenues for children to be exposed to tobacco marketing. The display ban would be effective for specialist tobacconists if tobacco retailers were licensed and if there were conditions placed upon this sector that would designate them as age-restricted premises.

Question: Section 3: The Tobacco and Advertising (Display of Prices) (England) Regulations 2010

22. These Regulations impose requirements on the display of prices of tobacco products in small and large shops and came into force on 6th April 2015.

23. The regulations permit only three types of tobacco price displays within retailers:

Poster style lists (up to A3 in size) which can be permanently on show but must not exceed 1,250sq centimetres in size

A list including pictures of products, which must not be left on permanent show, but can be shown to any customer aged 18 or over who asks for information on tobacco products sold; and

Price labels, which can be placed on shelving, storage units or tobacco jars. One price label is permitted for each product either on the covered shelf where the product is stored or on the front of the storage unit.

Objectives

To protect children and young people from the harms of smoking

Create a supportive environment for adults who are trying to quit smoking by ensuring that price lists and labels cannot be exploited as forms of tobacco promotion.

The Regulations do recognise that shops and businesses need to display necessary information on what tobacco products they sell and for what price.

Question: Have the restrictions on the display of prices of tobacco products helped reduce the number of children and young people smoking?

Yes, we think they have. We have taken the view that the overall principle of the removal of point-of-sale displays is welcome and should remain in place, as insofar as the Regulations are part of the wider point-of-sale regulations, and insofar as these Regulations in particular have curbed promotional efforts, they will have delivered a significant economic benefit to society without simultaneously placing one on retailers, as identified above.

Section 5: The Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015

These regulations came into force as of 26 March 2015 for proxy purchasing and 1 October 2015 for all other provisions.

The regulations prohibit both the sale of Nicotine Inhaling Products (NIPs) including e-cigarettes to under 18s, as well as the purchase of these products on behalf of a minor (proxy purchasing).

Objectives

To limit the sale of nicotine inhaling products (NIPs) such as electronic cigarettes (and related products including refill cartridges and nicotine liquids) to adults only, with only certain limited exceptions for medicinal products.

Limit the availability of NIPs to under 18’s, restricting scope for children and young people to become addicted to nicotine, minimising potential gateway effect into smoking.

Question: Do you think the Nicotine Inhaling Products Regulations have helped to prevent the sale of nicotine inhaling products, including e-cigarettes, to under 18s?

Yes, we think they have. We have taken the view that the Nicotine Inhaling Products Regulations have helped to prevent the sale of nicotine inhaling products, including e-cigarettes, to under-18s.

It is clear that there has been much work done locally to develop engagement between local authority Trading Standards services and the vaping sector. Many of our authorities have produced guidance for vape retailers prior to the introduction of the Regulations which was placed on websites and in newsletters.

Whilst the implementation of the Regulations has therefore been effective, enforcement and compliance could be improved. As evidenced earlier, this should be understood in the context of substantial cuts to Trading Standards Services (NAO, 2016; Labour Communities & Local Government, 2018), as the primary enforcers of this regulation.

We have taken the view that those underage will have benefited the most from these Regulations, given that they are being protected from an addiction to nicotine. Parents have also benefited, knowing that there are laws in place to protect children from getting hold of nicotine inhaling products. Retailers will have benefited from the clear legislation in place around age of sale.

Question: What impact do you think the age restriction and proxy purchasing ban on nicotine inhaling products has had on:

People under 18 have been afforded protection from nicotine inhaling products. However, some young people are still able to purchase nicotine inhaling products directly or through proxy sales where a friend or family member aged over 18 years will purchase on their behalf and this demonstrates the need to ensure that awareness of the Regulations among young people and the general public is increased.

Please give reason(s) and evidence for your answer.

The primary gain from implementation of this regulation is that it is clear to whom the products can be sold, that is over 18s. It is a good start to the development of a more effective regulatory framework for nicotine which needs to be placed within the broader context of encouraging smokers to quit using tobacco products.

Recommendation

The Committee is asked to note the information as contained within the report.

Contact: David Ellerington. City of Newcastle on (0191) 2116119 david.c.ellerington@newcastle.gov.uk