Implementing the prohibition of the sale and supply of single-use vapes in Scotland: your views

The Scottish Grocers Federation is 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.

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. (https://www.sgfscot.co.uk/publications/healthier-choices-healthier-communities-reducing-harm-from-smoking)

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 (www.nhs.uk/live-well/quit-smoking/using-e-cigarettes-to-stop-smoking/).

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. (https://www.sgfscot.co.uk/publications/regulations-for-nicotine-vaping-products-and-tobacco-compliance-in-scotland)

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.

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 (ACS), 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).