Our response to the Government Consultation on making e-cigs 18+ products
Monday, 26 January 2015
Our response to the Department of Health consultation on introducing a minimum age of sale for nicotine inhaling products
26th January 2015
We are a social enterprise that specialises in helping retailers to prevent under age sales, including alcohol, tobacco, fireworks, knives, gambling, etc. We are an accredited training provider of BTEC qualifications.
Is this the official response of your organisation? (required)
Do you, or the business or organisation you represent, have any direct or indirect links to, or receive funding from, the tobacco industry? (required)
Our training and compliance services are purchased by retailers, distributors, wholesalers and manufacturers of age restricted products, including tobacco. However, we are independent of them and this response is our own and has not been commissioned, directed or procured by anyone from the tobacco industry.
All information in responses, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000, the Data Protection Act 1998 and the Environmental Information Regulations 2004). If you want your response to remain confidential, you should explain why confidentiality is necessary; your request will only be acceded to if it appropriate in all the circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.
Do you have any comments regarding the definition of nicotine inhaling products proposed in the regulations?
We agree with the definition of a nicotine inhaling product. In particular, we agree that ‘dual use’ refillable devices ought to be caught by the definition even if, at the point of sale, they are either supplied without any nicotine containing product or perhaps with a refill that is propylene glycol liquid.
We are concerned that the definition of a ‘nicotine inhaling device’ requires that it be intended to enable nicotine to be inhaled through a mouth piece. Whilst we would not expect the legitimate e-cigarette industry to seek to evade this, in our view this could be used as a ‘get out’ clause. Would a product marked as ‘novelty e-cigarette – not intended for nicotine inhaling’ effectively evade the regulations even if it was still capable of being used as an e-cigarette. We would recommend that the word ‘intended’ be replaced with the word ‘capable’ in order to avoid attempts at evasion of the legislation.
Do you have any comments regarding the proposals for nicotine inhaling products that are medicines or medical devices?
We are concerned about this exemption applying to products that may be on the General Sale List. In our view this presents an opportunity for serious confusion to arise. We would expect a pharmacist to have the relevant skills and qualifications to identify a product intended or prescribed for use by those under 18 and to make the necessary decision about the supply of that product.
However, where such products start to appear on general retail sale in non-pharmacy settings, this will run the risk of confusing both consumers and staff – particularly if they are labelled as being suitable for use by under 18’s.
We would recommend that the exemption in Regulation 5 be limited only to prescription-only or pharmacy supplied products and not be applied to the general sales list medicines.
Do you have any comments regarding the enforcement arrangements proposed in the regulations, or any views or evidence on enforcement costs?
We remain concerned about the substantial cuts to the Trading Standards Service which is already placing their age restricted sales enforcement activities under considerable strain. This product is adding to the demands upon their services.
It is concerning that the Department has made no attempt to quantify the costs of enforcement in the regulatory impact assessment. The layering of additional responsibilities cannot be assumed to simply be met from existing resources.
It is critical to the success of this initiative that it is adequately and effectively enforced, so it follows that it must be support by additional resources for Trading Standards Officers.
Do you have any comments on the proposal to extend the current proxy purchase offence for tobacco to cover nicotine inhaling products?
We agree with this proposal.
Do you have any additional evidence on the use of e-cigarettes by under 18s as a gateway in or out of smoking? For example, how a minimum age of sale for e-cigarettes would impact on current users of e-cigarettes aged under 18?
We are not aware of any compelling evidence that supports the theory that e-cigarettes are a gateway product to smoking for either children or adults. In our view, the evidence tends to suggest that they are used as an aid to reduce or stop smoking tobacco products by people who already smoke.
In our view, nicotine is an addictive substance. On that rationale alone it ought to be age restricted to age 18 in the same way that other addictive products or services are.
We are of the view that attempts to draw causation to other matters (such as the take up of regular smoking) are a distraction from the core message – which is that nicotine is an addictive substance and ought to be age restricted no matter what the method of delivery of it is.
We would also point out that children take up use of nicotine products for many varied reasons. Each individual will have their own reasons and whilst there may be some trends, but overall these are matters of individual choices – if poor choices.
Do you have any additional evidence that restricting the sale of nicotine inhaling products would contribute to reducing health inequalities and/or help us fulfil our duties under the Equality Act 2010?
We have no response to this question.
Do you have any information or evidence that would inform the consultation-stage impact assessment? We particularly welcome any evidence or information which would improve any of the assumptions or estimates we have made in terms of the impact on retailers, manufacturers and distributors, including our assessment of any loss of profits.
In our view, the assumptions made are best estimates and we support their use.
Do you have any information or evidence that would improve any of the assumptions we have made in terms of the impact of these proposed regulations on small and micro businesses?
In our view, the assumptions made are best estimates and we support their use.
Is there anything else you wish to tell us that you think would improve the draft regulations?
It is not clear from the draft Regulations whether or not the unlawful sale of an e-cigarette to a person under age 18 would be considered to be an antecedent offence for the purposes of an application by a prosecutor for a Restricted Sales Order or a Restricted Premises Order.
Would the application of an RSO or RPO also restrict the sale of e-cigarettes under the terms of that order? At the moment, it would appear not to, but it is not clear.
We are concerned that there is no de minimis allowance for a product containing nicotine, even in minute quantities. As nicotine is a naturally occurring substance it will appear in many products, including for instance tomato paste. We would suggest that there be a minimum percentage quantity of nicotine applied to the product before it is considered to be a nicotine product.
We would encourage clarity, either on the face of the Regulations or in guidance, that is not intended that e-cigarettes be covered by the retail display ban, coming into force for small retailers on 6th April 2015. This is important because if a retailer is confused about whether or not they are covered this can lead to inadvertent offences being established.
We believe that it is as important that retailers are informed about what can be kept behind the closed doors of the display ban as to what cannot be kept behind the doors. If a consumer makes a request to purchase a product that is not tobacco and that is kept behind the doors (such as cigarette papers or e-cig refil cartridges) and the shop worker opens the doors to obtain the non-tobacco product but in doing so exposes tobacco, they would be committing an offence. That’s even if the customer is over 18.
This again provides potential for significant confusion.