Questions
1. Do you have any feedback on the draft regulations to prohibit the sale and supply of single-use vapes in Scotland?
Please give us your views
Argyll & Bute Council are supportive of a prohibition on the sale and supply of single-use vapes, not only for environmental reasons but we also believe it is an essential step in reducing youth vaping and the use of what are health harming products by non-smokers, to protect Scotland’s children and young people. It must be implemented consistently across all four nations such that it supports and integrates with any related health policy based approaches.
Argyll & Bute Council is particularly concerned with the suggested enforcement powers and how these work in practice. They must be proportionate, but also appropriate and effective. While there are powers it is noted that there is no duty placed on Councils A duty, would make enforcement more definite but would require to be fully funded for Councils to be able to meet that duty.
Definitions and Powers:
We welcome the definition of “single use vape” in the Regulations, in its attempt to seek to capture some of the innovative “limited life” products that have been developed by the industry in the last few years. However, this is a fast moving and highly profitable sector and we have concerns that there will be opportunities for businesses to avoid the intention of the Regulations should they wish to do so, indeed we are already seeing modified single-use vapes appearing on the market. (Discussed further in response to Question 2).
We have serious concerns that the enforcement powers detailed in the Regulations are inadequate to enable local authorities to enforce the provisions properly and of particular concern, the current drafting of the Regulations requires that an enforcement officer “has reasonable cause to believe that an offence under the Regulations has been or is being committed” as a pre-requisite to the power to enter premises.
“Reasonable cause to believe” is an extremely high threshold to achieve, and while it may be an appropriate caveat for exercising powers such as a power to seize items and documents as evidence, it is suggested that such an unusual restriction on a power of entry to premises is likely to:
• rule out proactive work and
• frustrate reactive work (even when credible information or intelligence has been received. Credible information/intelligence will normally only give an officer a “suspicion” that an offence has been or is being committed.)
(Further comments regarding enforcement powers are detailed in response to Question 2)
Anticipated work by Scottish Local Authorities and Funding:
It is noted that the Regulations do not make it a “duty” for local authorities to enforce the Regulations (although local authorities “may” authorise enforcement officers).
If it is the intention of Scottish Government for local authorities to actively carry out this work in response to the high public interest (either reactive work or proactive work) , while there are powers, it is noted that there is no duty placed on Councils. A duty, would make enforcement more definite but would require to be fully funded for Councils to be able to meet that duty.. UK Government has stated that £30m will be available to enable this policy area and it is understood that a Barnett Consequential will be made. Without new funding to Scottish councils, experience in similar policy areas tells us they are unlikely to be able to carry out the work.
If the ban is to be successful, it is essential to ensure that any funding gets to the front line and that enforcement is delivered in line with Scottish Government priorities and Verity House Agreement principles.
Controls on Imports:
The draft regulations appear to have missed a valuable opportunity to prevent the importation of illegal disposable vapes which could be achieved by adding a clause to the opening statement in the regulations.
As importation of illegal disposable vapes is not currently prohibited, officers rely on the definition of ‘supply’ to ascertain whether products can be sold or supplied or not. This definition requires that the sale or supply is “in the course of a business.” Hence products which are brought into the country for ‘personal use’ will not be banned by these regulations. As no indication is given as to amounts suitable for personal use, this will be highly likely to result in an inconsistent approach across the UK.
We recognise that controlling imports is a complex area and would require further work by Scottish Government, in collaboration with the other Nations to achieve this. We would be strongly supportive of such provisions as it would be the most effective measure in enabling action to be taken in relation to single use vapes before their distribution through the supply chain. Already we have seen intelligence that illegal vapes are being shipped through Scotland into England, and clearly enforcement action being taken at retail level is far less efficient than at the border.
Disposal route for single use vapes:
The cost of disposal of seized vaping products has been a real barrier to enforcement action in the recent past for Scottish local authorities, and despite WEEE Regulations that impose duties on certain suppliers, the question of who should dispose of illegal product is a difficult one for Scottish councils. To ensure single use vapes are recycled correctly by an Approved Authorised Treatment Facility costs between £0.40 and £1.00 per device.
Although a good proportion of the current estimated 7.5 million disposable vapes consumed per week will no longer be sold in the UK as many retailers will comply with these draft Regulations, it is likely that there will be a substantial ‘black’ market. If it is assumed that one third of the market is illegal, that could be upwards of 2.5 million vapes each week which would require to be seized and then disposed of appropriately across the UK, so an estimated 250k in Scotland. Trading Standards colleagues in English local authorities have been provided with funding from the Department of Health and Social Care to contribute to the significant costs of disposal and they have highlighted to both DHSC and Defra that increased funding will be required alongside any ban in England. This could amount to a substantial cost for Scottish councils, which will discourage enforcement action and it should be a priority consideration.
We would point to the ‘polluter pays’ principle and suggest that rules be built in that places the obligation for safe disposal or recycling with the supplier of the single use vape.
Alternative Enforcement Sanctions:
Consideration should also be given to alternatives to prosecution such as Fixed Penalty Notices for non-compliances. These administrative penalty provisions are already well used in other devolved legislation, such as under-age sales, and trading standards officers are well versed in their use. Solely relying on the extremely busy criminal justice system in Scotland for prosecutions through COPFS will not in our experience lead to good outcomes.
The ability to issue Fixed Penalty Notices as an alternative to prosecution allows non-compliances to be dealt with much more rapidly and efficiently.
Anticipated impact in relation to Youth uptake of vaping:
While the purpose of the Regulations is environmental, a ban on the sale and supply of single use vapes should also help reduce their appeal and availability to children and young people, which is a key public concern. However, the industry is developing products in anticipation of the ban which are of similar appearance and price points as the current single use vapes they are intended to replace, which is a real concern if these regulations are to be effective. (Referred to further in response to question 2).
Argyll & Bute Council is particularly concerned with the suggested enforcement powers and how these work in practice. They must be proportionate, but also appropriate and effective. While there are powers it is noted that there is no duty placed on Councils A duty, would make enforcement more definite but would require to be fully funded for Councils to be able to meet that duty.
Definitions and Powers:
We welcome the definition of “single use vape” in the Regulations, in its attempt to seek to capture some of the innovative “limited life” products that have been developed by the industry in the last few years. However, this is a fast moving and highly profitable sector and we have concerns that there will be opportunities for businesses to avoid the intention of the Regulations should they wish to do so, indeed we are already seeing modified single-use vapes appearing on the market. (Discussed further in response to Question 2).
We have serious concerns that the enforcement powers detailed in the Regulations are inadequate to enable local authorities to enforce the provisions properly and of particular concern, the current drafting of the Regulations requires that an enforcement officer “has reasonable cause to believe that an offence under the Regulations has been or is being committed” as a pre-requisite to the power to enter premises.
“Reasonable cause to believe” is an extremely high threshold to achieve, and while it may be an appropriate caveat for exercising powers such as a power to seize items and documents as evidence, it is suggested that such an unusual restriction on a power of entry to premises is likely to:
• rule out proactive work and
• frustrate reactive work (even when credible information or intelligence has been received. Credible information/intelligence will normally only give an officer a “suspicion” that an offence has been or is being committed.)
(Further comments regarding enforcement powers are detailed in response to Question 2)
Anticipated work by Scottish Local Authorities and Funding:
It is noted that the Regulations do not make it a “duty” for local authorities to enforce the Regulations (although local authorities “may” authorise enforcement officers).
If it is the intention of Scottish Government for local authorities to actively carry out this work in response to the high public interest (either reactive work or proactive work) , while there are powers, it is noted that there is no duty placed on Councils. A duty, would make enforcement more definite but would require to be fully funded for Councils to be able to meet that duty.. UK Government has stated that £30m will be available to enable this policy area and it is understood that a Barnett Consequential will be made. Without new funding to Scottish councils, experience in similar policy areas tells us they are unlikely to be able to carry out the work.
If the ban is to be successful, it is essential to ensure that any funding gets to the front line and that enforcement is delivered in line with Scottish Government priorities and Verity House Agreement principles.
Controls on Imports:
The draft regulations appear to have missed a valuable opportunity to prevent the importation of illegal disposable vapes which could be achieved by adding a clause to the opening statement in the regulations.
As importation of illegal disposable vapes is not currently prohibited, officers rely on the definition of ‘supply’ to ascertain whether products can be sold or supplied or not. This definition requires that the sale or supply is “in the course of a business.” Hence products which are brought into the country for ‘personal use’ will not be banned by these regulations. As no indication is given as to amounts suitable for personal use, this will be highly likely to result in an inconsistent approach across the UK.
We recognise that controlling imports is a complex area and would require further work by Scottish Government, in collaboration with the other Nations to achieve this. We would be strongly supportive of such provisions as it would be the most effective measure in enabling action to be taken in relation to single use vapes before their distribution through the supply chain. Already we have seen intelligence that illegal vapes are being shipped through Scotland into England, and clearly enforcement action being taken at retail level is far less efficient than at the border.
Disposal route for single use vapes:
The cost of disposal of seized vaping products has been a real barrier to enforcement action in the recent past for Scottish local authorities, and despite WEEE Regulations that impose duties on certain suppliers, the question of who should dispose of illegal product is a difficult one for Scottish councils. To ensure single use vapes are recycled correctly by an Approved Authorised Treatment Facility costs between £0.40 and £1.00 per device.
Although a good proportion of the current estimated 7.5 million disposable vapes consumed per week will no longer be sold in the UK as many retailers will comply with these draft Regulations, it is likely that there will be a substantial ‘black’ market. If it is assumed that one third of the market is illegal, that could be upwards of 2.5 million vapes each week which would require to be seized and then disposed of appropriately across the UK, so an estimated 250k in Scotland. Trading Standards colleagues in English local authorities have been provided with funding from the Department of Health and Social Care to contribute to the significant costs of disposal and they have highlighted to both DHSC and Defra that increased funding will be required alongside any ban in England. This could amount to a substantial cost for Scottish councils, which will discourage enforcement action and it should be a priority consideration.
We would point to the ‘polluter pays’ principle and suggest that rules be built in that places the obligation for safe disposal or recycling with the supplier of the single use vape.
Alternative Enforcement Sanctions:
Consideration should also be given to alternatives to prosecution such as Fixed Penalty Notices for non-compliances. These administrative penalty provisions are already well used in other devolved legislation, such as under-age sales, and trading standards officers are well versed in their use. Solely relying on the extremely busy criminal justice system in Scotland for prosecutions through COPFS will not in our experience lead to good outcomes.
The ability to issue Fixed Penalty Notices as an alternative to prosecution allows non-compliances to be dealt with much more rapidly and efficiently.
Anticipated impact in relation to Youth uptake of vaping:
While the purpose of the Regulations is environmental, a ban on the sale and supply of single use vapes should also help reduce their appeal and availability to children and young people, which is a key public concern. However, the industry is developing products in anticipation of the ban which are of similar appearance and price points as the current single use vapes they are intended to replace, which is a real concern if these regulations are to be effective. (Referred to further in response to question 2).
2. Do you have any concerns about how these regulations would work in practice?
Please give us your views
Definition of Single Use Vape:
The definition of “single use vape” seems good to cover the types of “limited life” products that have emerged more recently, however there is still scope for the industry to quickly produce a product that is:
a. “reusable” but only reusable for a much more limited period than would be normally expected and
b. a vape which uses replacement single use containers (such as pod systems) that are separately available but where the availability of the replacement single use containers is restricted in such a way that it would be effectively difficult for users to obtain the replacement containers, resulting in consumers buying a new heating element on every occasion that they need a new pod.
c. Consideration could be given to including a definition of “reusable” in the Regulations in terms of a typical lifespan which could be reasonably expected from “reusable” products.
Consideration could also be given to adding additional criteria to Regulation 3(2) (a) -
(“a single-use container which is separately available and can be replaced….”) by including wording to make it clear that single-use containers should be “readily available” and “easily sourced” by consumers and with similar supply chain mechanisms as for the vape device itself.
Additionally we would seek clarification as to what the intention is in regulation 2 where a vape is defined as:
‘...a device that— (a) vaporises substances, other than tobacco, for the purpose of inhalation through a mouthpiece (whether or not it also vaporises tobacco),’
This definition specifically excludes tobacco then includes it if a device can vaporise tobacco in addition to any other substance. A single-use vape device only vaporises one substance, usually a liquid, and cannot simultaneously vaporise another. If it could also vaporise tobacco, that would presumably be as a result of a refill, which would mean that the device was not a single use device.
Our concern is that this is a confusing, if not contradictory, definition that will allow those in the supply chain to muddy the waters as to what is meant and caught by this definition. We wonder if there might be some confusion here between ‘tobacco’ and ‘nicotine’ as there are zero nicotine vapes available that are regulated in Scotland, but not yet in the rest of UK.
We are aware that some businesses that supply popular brands of single use vapes have already developed similar looking re-usable products that operate with replacement pods, or perhaps have a charging socket added. Prices for these modified products appear to be in a very similar range to the current single-use vapes the regulations seek to ban, so there is a risk that the new modified reusable products that have come onto the market may continue to be treated as disposable products by consumers, given that their prices are so similar to single use vapes.
Many of these modified SU vapes do not come with a charging cable, so consideration could be given to adding a requirement that a vape would not be considered to be “rechargeable” unless the product is supplied with a suitable charging cable.
Enforcement Powers:
Argyll & Bute Council has serious concerns regarding the enforcement powers detailed in the draft Regulations as outlined below, and in addition we would recommend that the title ‘Local Weights and Measures Authority’ be used to describe the enforcer, rather than ‘council’ if it is the preference of Scottish Government that local authority Trading Standards Officers take on this role in Scotland. This has been used successfully in other devolved legislation.
1. The general power of entry is only exercisable if an officer has “reasonable cause to believe” that an offence has been or is being committed. As discussed above, the “reasonable cause to believe” caveat would rule out proactive work and frustrate reactive work as outlined in the feedback to Question 1. We would point to the enforcement powers in the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 as an effective set of rules.
2. An Enforcement Officer can only be accompanied by another (authorised) enforcement officer. There will be occasions when officers may want to be accompanied by officers from Police Scotland or other colleagues such as technical experts or support staff.
3. There is no power to seize documents as evidence or any other evidence other than “articles” referred to in Regulation 8(1)(g).
4. There is no power to require production of records from other businesses. (e.g. to determine who is operating a particular online trading platform which would be important in enabling investigation of an alleged online seller of single use vapes.)
5. There are no obstruction provisions and consequences for persons who obstruct officers.
6. There is no power to seek reasonable assistance from individuals.
7. There is no power to require locked containers to be opened.
8. There is no power to make test purchases.
9. There is no general power to enter premises that is open to entry to the public for the purposes of inspection.
10. There are no forfeiture provisions to allow seized Single Use Vapes to be forfeited by the court outwith criminal proceedings, similar to that contained in Regulation 19 of General Product Safety Regulations 2005.
11. The powers in Regulations 8(1)(f) and 8(1)(g) refer to articles “which appears to that enforcement officer to have caused or be likely to cause pollution of the environment or harm to human health”. It is unclear why the provisions do not simply refer to “Single Use Vapes”.
12. It is unclear whether the entry powers (subject to issue of a warrant by a Sheriff) detailed in Regulation 8(3) are intended to enable entry (with a warrant) to premises used “wholly or mainly as a dwelling”. It is extremely common for persons to operate small businesses from their home, including people who operate illicit businesses, so if there was no ability at all to enter such premises this would frustrate the ability to deal with activity taking place in residential properties.
Improvement of the enforcement powers detailed in the draft Regulations would drastically improve the ability of local authorities to enforce the single use vape ban provisions.
The powers detailed in the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 would be a good example of better powers to enable the Regulations to be enforced practically.
A link to the powers is provided below for information:
Fireworks and Pyrotechnic Articles (Scotland) Act 2022 (legislation.gov.uk)
The definition of “single use vape” seems good to cover the types of “limited life” products that have emerged more recently, however there is still scope for the industry to quickly produce a product that is:
a. “reusable” but only reusable for a much more limited period than would be normally expected and
b. a vape which uses replacement single use containers (such as pod systems) that are separately available but where the availability of the replacement single use containers is restricted in such a way that it would be effectively difficult for users to obtain the replacement containers, resulting in consumers buying a new heating element on every occasion that they need a new pod.
c. Consideration could be given to including a definition of “reusable” in the Regulations in terms of a typical lifespan which could be reasonably expected from “reusable” products.
Consideration could also be given to adding additional criteria to Regulation 3(2) (a) -
(“a single-use container which is separately available and can be replaced….”) by including wording to make it clear that single-use containers should be “readily available” and “easily sourced” by consumers and with similar supply chain mechanisms as for the vape device itself.
Additionally we would seek clarification as to what the intention is in regulation 2 where a vape is defined as:
‘...a device that— (a) vaporises substances, other than tobacco, for the purpose of inhalation through a mouthpiece (whether or not it also vaporises tobacco),’
This definition specifically excludes tobacco then includes it if a device can vaporise tobacco in addition to any other substance. A single-use vape device only vaporises one substance, usually a liquid, and cannot simultaneously vaporise another. If it could also vaporise tobacco, that would presumably be as a result of a refill, which would mean that the device was not a single use device.
Our concern is that this is a confusing, if not contradictory, definition that will allow those in the supply chain to muddy the waters as to what is meant and caught by this definition. We wonder if there might be some confusion here between ‘tobacco’ and ‘nicotine’ as there are zero nicotine vapes available that are regulated in Scotland, but not yet in the rest of UK.
We are aware that some businesses that supply popular brands of single use vapes have already developed similar looking re-usable products that operate with replacement pods, or perhaps have a charging socket added. Prices for these modified products appear to be in a very similar range to the current single-use vapes the regulations seek to ban, so there is a risk that the new modified reusable products that have come onto the market may continue to be treated as disposable products by consumers, given that their prices are so similar to single use vapes.
Many of these modified SU vapes do not come with a charging cable, so consideration could be given to adding a requirement that a vape would not be considered to be “rechargeable” unless the product is supplied with a suitable charging cable.
Enforcement Powers:
Argyll & Bute Council has serious concerns regarding the enforcement powers detailed in the draft Regulations as outlined below, and in addition we would recommend that the title ‘Local Weights and Measures Authority’ be used to describe the enforcer, rather than ‘council’ if it is the preference of Scottish Government that local authority Trading Standards Officers take on this role in Scotland. This has been used successfully in other devolved legislation.
1. The general power of entry is only exercisable if an officer has “reasonable cause to believe” that an offence has been or is being committed. As discussed above, the “reasonable cause to believe” caveat would rule out proactive work and frustrate reactive work as outlined in the feedback to Question 1. We would point to the enforcement powers in the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 as an effective set of rules.
2. An Enforcement Officer can only be accompanied by another (authorised) enforcement officer. There will be occasions when officers may want to be accompanied by officers from Police Scotland or other colleagues such as technical experts or support staff.
3. There is no power to seize documents as evidence or any other evidence other than “articles” referred to in Regulation 8(1)(g).
4. There is no power to require production of records from other businesses. (e.g. to determine who is operating a particular online trading platform which would be important in enabling investigation of an alleged online seller of single use vapes.)
5. There are no obstruction provisions and consequences for persons who obstruct officers.
6. There is no power to seek reasonable assistance from individuals.
7. There is no power to require locked containers to be opened.
8. There is no power to make test purchases.
9. There is no general power to enter premises that is open to entry to the public for the purposes of inspection.
10. There are no forfeiture provisions to allow seized Single Use Vapes to be forfeited by the court outwith criminal proceedings, similar to that contained in Regulation 19 of General Product Safety Regulations 2005.
11. The powers in Regulations 8(1)(f) and 8(1)(g) refer to articles “which appears to that enforcement officer to have caused or be likely to cause pollution of the environment or harm to human health”. It is unclear why the provisions do not simply refer to “Single Use Vapes”.
12. It is unclear whether the entry powers (subject to issue of a warrant by a Sheriff) detailed in Regulation 8(3) are intended to enable entry (with a warrant) to premises used “wholly or mainly as a dwelling”. It is extremely common for persons to operate small businesses from their home, including people who operate illicit businesses, so if there was no ability at all to enter such premises this would frustrate the ability to deal with activity taking place in residential properties.
Improvement of the enforcement powers detailed in the draft Regulations would drastically improve the ability of local authorities to enforce the single use vape ban provisions.
The powers detailed in the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 would be a good example of better powers to enable the Regulations to be enforced practically.
A link to the powers is provided below for information:
Fireworks and Pyrotechnic Articles (Scotland) Act 2022 (legislation.gov.uk)
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Lee Roberts
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Argyll & Bute Council Trading Standards