On 4 October 2023, the Government published a paper (“the Consultation”) setting out its plans to create a smokefree generation. The paper also sets out measures to reduce youth vaping.
According to the Office for National Statistics, 6.4 million people in the UK are smokers. This represents 12.9% of people in the UK. Smoking is believed to cause 1 in 4 of all cancer deaths and is a major cause of heart disease, stroke and increases the risk of dementia. Smokers lose an average of 10 years of life expectancy, or around 1 year for every 4 smoking years.
The Paper reports that some 75,000 GP appointments could be attributed to smoking each month.
Due to nicotine content and the unknown long-term harms, vaping carries risks to heath and addiction for children. The Government’s advice is clear: young people and people who have never smoked should not vape. The Government is now consulting on the following areas:
- Creating a smoke free generation
- Tackling youth vaping
- Enforcement
The consultation seeks feedback on the proposed measures. The consultation closes on 6 December 2023 at 11:59pm. Responses can be made at:
Legislation to create a smoke free generation
The UK Government is bringing forward legislation to make it an offence to sell tobacco products to anyone born after 1 January 2009. The proposal is very much based on a similar step taken in New Zealand.
However, no proposals have been published to go as far as New Zealand which includes significantly reducing the number of retail outlets that can sell tobacco and introducing new limits to reduce the strength of cigarettes.
The Paper also suggests that legislation will cover proxy sales. These are already prohibited under existing age of sale legislation. The proposal being that anyone born before the 1 January 2009 would be prohibited from purchasing tobacco on behalf of anyone born after that date.
The proposals will have implications for retailers with a change required to the age verification process. A cashier will need to verify that a customer was born before 1 January 2009 before making a sale.
Tackling the rise in youth vaping
The Government recognises the importance of using vapes as a tool for smokers to quit. However, an unintended consequence of their introduction has been the popularity of the products amongst children.
The ASH report of 2023 has found that children who vape are particularly drawn into doing so by ‘fruit’ or ‘sweet’ flavours. Vapes come in refillable and disposable vessels.
Various measures in terms of restricting flavours have been discussed such as limiting the terms on how vapes can be described. In New Zealand, regulation has specified a list of generic flavours such as Apple and Grape which are permitted but flavours such as Cotton Candy are prohibited.
Point of sale displays are also under scrutiny. The Consultation is asking for comment on two options:
- Vapes being allowed on display but kept behind the counter for sale or,
- Vapes being kept in a locked cabinet out of sight like tobacco products.
Another option is regulating vape packaging. The Government is seeking to ensure that no part of the vape can be targeted at children; several options are available such as prohibiting cartoon and inanimate objects to a full scale prohibiting of all imagery and colouring, akin to the current regulation of tobacco packaging.
Affordability
Vape products are not subject to duty and as a consequence are significantly cheaper than tobacco products. A national tax on vapes has been introduced in Germany and Italy. However, studies from America have suggested that taxing vapes may lead to an increase in youth smoking. The Consultation is only asking at this stage whether respondents believe that a price increase would lead to a reduction in vaping.
Enforcement
If the Government’s smoke free policy is to work, it is vital for the enforcement to work effectively. The Consultation is looking at levels in which the local authority has the power to issue fixed penalty notices to those who conduct underage sales. The current regime has been viewed as cumbersome as it requires a local authority to prosecute an individual or business in the Magistrates’ Court.
The Government has proposed that a new fixed penalty regime can exist together with the current prosecution method. The Consultation also looks at the level of fixed penalty notices to be applied.
There has been criticism of the proposals. The British Independent Retailers Association has commented that the potential measures might lead to shop workers facing abuse and that placing the responsibility solely on shopworkers is the wrong approach.
CBD
To understand the legal status of cannabidiol (CBD) products in the UK, it is important to remember that most of them are made from the inflorescences of true hemp or cannabis plants. In both cases, there is some content of the psychoactive tetrahydrocannabinol (THC), which is a controlled and illegal substance under UK law.
The CBD market has been divided into 2 groups:
All licensed medicinal products must meet safety, quality and efficacy standards – only then can they be sold in pharmacies. A company that wants to produce and sell medical CBD products must apply for a licence or a “marketing authorisation” to produce medical CBD products.
CBD products for the consumer market are subject to a restriction on THC content and must not be promoted with any health claims.
It is a common misconception that the CBD product itself must contain less than 0.2% THC. In fact, it is the source plant which is relevant. The plant can be grown with high THC content or low. When derived from a compliant plant, the actual THC content of the CBD product should contain nil or trace (less than 0.01%) THC.
In addition, the CBD product must also be registered as a novel food.
By way of reminder, novel foods are any food that was not used for human consumption to a significant degree within the United Kingdom (UK) or the European Union (EU) before 15 May 1997. This means that the foods do not have a ‘history of consumption’.
Novel foods need to be authorised before they can be placed on the market in Great Britain.
The novel food status of CBD extracts was confirmed in January 2019 and all CBD food products must apply for authorisation before they can be sold legally in Great Britain.
All products awaiting authorisation, which have a credible application in with the Food Standards Agency (“FSA”) can be viewed on the FSA website. There are currently no authorised CBD extracts or isolates on the market.
There are a range of CBD food products, including drops, supplements and beverages, available on the market. None of these have been authorised as novel foods, but in England and Wales, the FSA has introduced a public record of products linked to credible applications going through the novel food authorisation process.
On 12 October 2023 the Food Standards Agency issued new precautionary advice on CBD, recommending healthy adults should limit their consumption of CBD from food to 10mg per day, which is about 4-5 drops of 5% CBD oil. Previous advice published in February 2022 recommended a limit of 70mg of CBD per day.
This change in advice is based on new evidence from the industry and updated advice from the FSA’s independent scientific committee.
The updated advice has been based on the average lifetime exposure to food products containing CBD, such as drinks, oils, sweets, bakery items or drops. Some products available on the market will have a higher dose of CBD per serving than 10mg a day, therefore consumers should check labels and consider their daily intake in light of this updated advice. Some CBD gum products on the market declare that each piece of gum contains 3mg of CBD.
Conclusion
We are likely to see change in how tobacco and vaping products can be sold. Retailers should be prepared for greater restrictions aimed at phasing out smoking, certainly amongst young people, by 2040. The vape market is also likely to see restrictions aimed at reducing the attraction and availability of products to children.
The CBD product market is complex, and retailers are advised to check that any products stocked are compliant with UK law.