The Tobacco and Vapes Bill (the “Bill”) passed its second reading in the House of Commons on Tuesday 16th April 2024. The main features of the Bill include:
- Preventing anyone born on or after 1 January 2009 (the “Specified Date”) from buying tobacco products in the UK.
- Reducing the appeal of vaping to under 18s.
- Strengthening enforcement around tobacco and vaping sales.
If the Bill becomes law, it will come into force on 1 January 2027.
Relevant offences
The Bill makes it an offence to sell tobacco products, herbal smoking products and cigarette papers to anyone born on or after the Specified Date. It is also an offence to buy these products on behalf of anyone born after the Specified Date.
There are limited defences available which include that an individual has taken all reasonable steps to avoid the commission of the offence, or they had no reason to suspect that the other person was born after the Specified Date.
An individual found guilty of this offence can face a fine of up to £2,500.
Age-of-sale notice at point of sale
Retailers must update their current age-of-sale notice to read “It is illegal to sell tobacco products to anyone born on or after 1 January 2009”. In Wales, this wording must also be displayed in Welsh. The notice must be in a prominent position which is visible at each point of sale. There will be future regulations about the age-of-sale notice specifications.
Vaping
The Bill makes it an offence to sell to or buy on behalf of under 18s, non-nicotine vaping products in England and Wales. It will grant powers to Ministers in Northern Ireland to pass regulations to the same effect, while in Scotland, it is already an offence to sell non-nicotine vaping products to under 18s.
This is in addition to existing legislation which makes it an offence to sell nicotine based vaping products to under 18s.
The Bill allows the Government to make future regulations in relation to the packaging, flavouring, importing and display of vaping and nicotine products.
Sanctions
1. Restricted Premises Order
This sanction applies to business premises.
If a person commits a “relevant offence” and is a “persistent offender” the court may make a restricted premises order in relation to the premises where the offence is taking place. “Relevant offences” include the sale of tobacco to anyone born after the Specified Date, the use of tobacco vending machines and the sale of vaping products to under 18s. A “persistent offender” is someone who has committed three “relevant offences” within two years. This order can prohibit the sale of items including tobacco and nicotine products from the premises. The order can last for a maximum one-year period.
It is worth noting that a restricted premises order counts as a local land charge and so would bind any purchaser of the premises.
A breach of a restricted premises order could result in a fine with no maximum amount specified.
2. Restricted Sale Order
This sanction applies to individuals.
If a person commits a “relevant offence” and is a “persistent offender” the court may make a restricted sale order in relation to that individual. This order can prohibit the persistent offender from selling items including tobacco and nicotine products. The order can also prevent the persistent offender from having management functions at a premises where the sale of tobacco and vaping products takes place. The order can last for a maximum one-year period.
A breach of a restricted sale order could result in a fine with no maximum amount specified.
3. Fixed Penalties
In England and Wales, local Trading Standards have been appointed to enforce much of the Bill. If a person is suspected of committing an offence under Part 1 of the Bill (e.g. selling alcohol to someone born after the Specified Date or selling vaping products to under 18s), a trading standards officer could issue an on-the-spot fine of £100. The notice will give the individual the opportunity to avoid prosecution if the penalty is paid within 28 days. In Northern Ireland and Scotland, local enforcement authorities already have the power to issue fixed penalty notices.
Conclusion
Predictably, the Bill caused controversy in the Commons, only being able to pass due to support from the opposition. Many objectors cited that the burden would fall on small businesses to enforce the ban. It is worth exploring the potential impact of the Bill on businesses:
- The age verification process will become increasingly more difficult. For example, by the year 2050, a person will need to be able to distinguish between a 41-year-old and a 42-year-old purchaser, for age verification purposes.
- Businesses will need to keep track of future regulations on the specifications of the age-of-sale notice.
- Businesses will need to vet employees to determine if they are subject to a restricted sale order.
- A buyer of relevant premises will need to enquire not only to whether a restricted premises order is place but also whether any relevant offences have taken place at the premises and if so when.
There is currently a call for evidence, inviting people with experience or a special interest in the Bill to submit their views to the House of Commons Public Bill Committee. The expected deadline for submissions is 5.00pm on Thursday 23 May 2024. However, the Committee may conclude its considerations before this date, in which case, it may refuse to accept written submissions before the deadline.