You may have come across our article from September 2023, where we covered four simultaneous rulings published by the Advertising Standards Authority (ASA) against vape brands due to their appeal to children. These rulings form part of a wider project by the Government designed to create a “smokefree generation” by reducing tobacco consumption amongst adults and reducing vaping amongst the youth. In line with this project, earlier this month, the Department of Health and Social Care published a policy paper where it sets out the proposed actions the Government will take to tackle smoking and youth vaping.

The paper is a 44-page document which includes broader aspects concerning smoking and youth vaping, including statistics that 80% of smokers start before the age of 20, that vapes are safer than smoking, and are one of the tools to help people addicted to nicotine to stop smoking. However, this article will focus on the paper's views on existing regulatory action, new legislative proposals and enforcement measures. 

Existing regulatory action 

Of course, the above stats pre-date vapes, which are regulated by the Tobacco and Related Products Regulations 2016 (the Regulations). These Regulations set standards around nicotine strength, tank size, packaging and advertising. However, the paper indicates that the Regulations do not “promote the government's objective to promote vapes as a quit aid” and instead enables a system where “vapes are all too often promoted and marketed to children”. The paper further mentions the Tobacco Advertising and Promotion Act 2002, as well as the Online Safety Bill, which requires social media platforms to ensure that children are protected from harmful content. 

Born after 2009? Sorry, can't serve you 

The paper indicates that the Government will bring forward legislation making it an offence to sell tobacco products to anyone born on or after 1 January 2009. The idea is to raise the smoking age by one year each year until it applies to the whole population. This ban reflects the current scope in relation to tobacco products and will include accessories such as rolling papers. It is important to note that the emphasis is on the sellers and that smoking itself will not be criminalised. Furthermore, vapes and nicotine replacement therapies fall out of scope, because they do not contain tobacco.

Youth vaping vs vapes as a quitting aid

The paper identifies a conflict between youth vaping and ensuring that vapes continue to be made available for quitting adult smokers. Evidence suggests that vapes are promoted in a way appealing to children, which include various flavours, packaging, low cost and convenience. As such, the Government is looking to introduce: 

  • restrictions on vape flavours; 
  • regulations on vape packaging and product presentation;
  • regulations on point of sale displays;
  • restrictions on sales of disposable vapes (including for environmental, recycling reasons) 
  • age restrictions for non-nicotine vapes and further restrictions for other nicotine consumer products such as nicotine pouches; and
  • restrictions on giving out free vape samples to children (!)

These restrictions and regulations mirror those applied against tobacco products. 

Comply or pay up right here and now

The paper identifies legitimate sales outlets selling tobacco and vapes to the youth as the biggest issue, but not the only one. As such, the paper states that the Government will provide extra £30M funding to enforcement agencies such as the Trading Standards, Border Force or HMRC.  Local authorities will also have powers to issue on-the-spot fines, although the sums are unspecified. Lastly, online age verification measures will be enhanced. 

Take home 

This paper is a key development for retailers, advertisers and influencers alike. Whilst we await further details from the Government, this paper acts as another reminder that vaping is very high on the regulators' radar, so players in this sector must take extra care and understand that they are more likely to be investigated when compared with other sectors. To be a “step ahead of the game”, players can begin to apply measures that are applicable to tobacco to vapes, such as standardised packaging or out-of-clear-sight placements.

Questions remains over intricacies of the Government's plans. For example, if smoking is not illegal, what if a person born before 2009 purchases cigarettes and hands them over to someone else? Will this incentivise people to start growing own tobacco? Will this create a new black market?  With the underfunding of public agencies, how will the public ensure that the extra funding is in fact used to combat illicit sales? We'll have to wait and see.

Consultation launched

The UK government has now launched a consultation on youth vaping in conjunction with the devolved administrations.  The proposals include:

Creating a smokefree generation: consulting on the smokefree generation policy and its scope.
Tackling youth vaping: consulting on several options to take the most appropriate and impactful steps, building on England’s analysis of the youth vaping call for evidence.
Enforcement: consulting on the proposal to introduce new powers for local authorities in England and Wales to issue fixed penalty notices to enforce age of sale legislation of tobacco products and vapes.

The consultation ends on 6 December 2023.