UK smoking and vaping policy consultation – my final response

The government is consulting on proposals for a smokefree generation and restrictions designed to tackle youth vaping, including bans on flavours and disposable vapes – I am sharing my draft consultation responses for information and input

Stakeholders have been invited to comment on anti-vaping proposals and a plan to make it illegal for retailers ever to sell tobacco to adults if they were born after 1 Jan 2009.
Many are delighted.

Government consultation. The UK government is consulting on a range of tobacco and nicotine policy measures: Creating a smoke-free generation and tackling youth vaping: your views. The government also produced a policy paper. Stopping the start: our new plan to create a smoke-free generation.

Responding to the consultation. The consultation closes on 6 December 2023. You can respond via the online survey.

The policy proposals include the following – see table of contents below – with the exception of my strategic overview comments, which I have submitted as an attached file. The links below in the table of contents follow the format of the online survey.

I have now submitted my final response. Please do not copy what I have written: always use your own words and views, and it is completely reasonable to disagree with what I have said. Thanks for the various feedback on the earlier draft and especially insights picked up at the London E-cigarette Summit on 16 November.

Responding to the consultation. The closing date is 6 December. It is a consultation, and you should assume your views will be considered if they are politely expressed and authentic. In the consultation questions, there are signs that the government (or someone in it) realises the risks of bad outcomes, as several trade-offs and possible unintended consequences are highlighted. On several occasions, the online survey provides incomplete or simplistic options to choose from if you disagree with the government’s apparent intentions. This is frustrating, but it should not stop you from responding – if necessary, with a Don’t know or a negative response (No or Disagree) with an explanation in the written answer. Don’t respond positively to anything if you think doing so could be misconstrued as support for something you do not support.

Strategic overview commentary

The consultation demands a careful response from everyone with a concern about public health and the health and welfare of disadvantaged populations. The consultation does not allow for a broader discussion of the policy proposals, but in drafting my own response, I found several recurring themes:

  • In all cases, the welfare of adult smokers, often experiencing socioeconomic or other forms of disadvantage, has been ignored or downgraded. Yet this is the main at-risk population and where the greatest gains can be made. Most of the limited policy appraisal presented ignores the most important sub-population. The combined population of adult vapers and smokers is about sixteen times greater than the equivalent youth population. The government should have a single-minded public health focus on the main problem: adult smoking, and treat youth vaping as a manageable side effect of addressing the central public health problem.
  • The concerns about youth vaping are based on a naive model of youth risk behaviours and ignore the counterfactual in which some young people who vape would otherwise be smoking. Even among those who would not otherwise have smoked, relatively minor harms arise from vaping among youth – and their use is likely to be experimental, infrequent and transient, and vaping just isn’t that dangerous. Few, if any, will die as a result of their nicotine use, even if it persists for decades, which most will not. In contrast, relatively significant harms are avoided by youth diverted from smoking by vaping. No allowance is made for this latter pathway, which has much greater public health significance.
  • Because we are dealing with the regulation of much safer alternatives to the dominant form of nicotine use (cigarettes), the main policy concern should be the risk of unintended harmful consequences: reduced switching (adults) and diversion (adolescents) from smoking, increased relapse, harmful user or vendor workarounds, and unregulated illicit trade.
  • The consultation repeatedly implies causal relationships from observational data and then assumes that some sort of prohibition would reverse the effect falsely attributed to the cause. No link in this chain of logic provides reliable support for the various prohibitions under discussion. This applies to e-liquid flavours and packaging, for example. The underlying causes of substance use and experimentation are a wide range of psychosocial factors that are not changed by a ban on flavours or implementing plain packaging.
  • The consultation draws its key policy distinction between tobacco and non-tobacco nicotine products. This reflects the preferences of tobacco control activists who are reflexively more anti-tobacco than pro-health. A credible risk-based distinction should be made between combustible and non-combustible products. Smoke-free tobacco products (snus, heated tobacco) have a role to play. There is clear proof of concept for both, e.g. in Sweden and Japan, respectively, and the US FDA has declared some smokeless and heated tobacco products to be “appropriate for the protection of public health”. There is no reason for the UK government to deny the public access to these products, repeating and compounding the error of the 1989 snus ban, which was also prompted by a moral panic and misguided lobbying by control organisations and academics.
  • There are several areas where better, more workable policies are available but overlooked – for example, raising the age for the lawful sale of cigarettes to 21 and a licensing system for retailers, which would allow both license conditions and a more robust sanctions regime.

Above all, the government appears to have lost sight of what should be its three guiding objectives for tobacco nicotine policy:

  • Meeting the 2030 smoke-free target to reduce adult smoking prevalence to below five per cent.
  • Tackling non-communicable diseases as part of its commitment to the Sustainable Development Goals, notably SDG target 3.4 to reduce premature mortality from NCDs by one-third by 2030 compared to 2015.
  • Addressing health and welfare inequalities through smoking cessation. This is one of the most important and achievable aims of “levelling up”.

My overall assessment is that the government’s preferred proposals threaten public health, promote lawlessness, distract from better policies, and would do more harm than good overall.


How to read the rest of this blog. For each of the 27 questions, I will briefly summarise the issue as necessary (my words, not the government’s), then give the government’s question, and then my draft response in a grey box. Replies are limited to 300 words.

Creating a smoke-free generation

Explanation. This policy will make it an offence for anyone born on or after 1 January 2009 to be sold tobacco products (and in Scotland, also an offence for anyone born on or after 1 January 2009 to purchase tobacco products). It would apply to all tobacco products, cigarette papers and herbal smoking products, including smoke-free tobacco products such as heated tobacco, chewing tobacco, and snus.

Question 1: Do you agree or disagree that the age of sale for tobacco products should be changed so that anyone born on or after 1 January 2009 will never be legally sold (and also, in Scotland, never legally purchase) tobacco products?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree
The Smoke-free Generation (SFG) measure addresses a youth smoking problem that has almost vanished thanks to vapes, it denies adults the choice to use these legal tobacco products if they wished, and there are better age-related policies.  It raises novel questions about extending the age of majority indefinitely into adulthood. Existing age restrictions do not prevent under-18s from accessing cigarettes, so it is unclear how a more complicated scheme will be more effective. To the extent that it has any effect at all, it will promote illicit trade between those born before and after 2008 and engage young people in criminal networks. It would create an identification and cultural dissonance problem for retailers and an enforcement issue for Trading Standards. It will present challenges regarding adult business and tourist visitors to the UK. 

If the government wishes to address age-related policies, a better and faster-acting policy would be to raise the legal age of sale for combustible tobacco to 21 or “C-21”. [1] The concept has also been recommended by ASH [2], though (inappropriately) for all tobacco rather than combustibles. It could do this starting in 2026 in order to have an impact on the 2030 smoke-free goal. When the US federal government introduced “Tobacco 21” in 2019, it did so with immediate effect. SFG would not impose an age-21 limit until 2030.

English tobacco control organisations (ASH, RCP, Spectrum) were sceptical about the Smokefree Generation measure when New Zealand consulted on it in 2021, arguing there are “significant issues to be considered about its feasibility and enforceability”. [3] The incoming New Zealand coalition government has committed to repealing its SFG law.

[1] Pesko (2022) Combustible tobacco age‐of‐sale laws: An opportunity? Addiction https://bit.ly/47I9MNQ
[2] ASH(UK) Briefing paper https://bit.ly/3Nap9qa
[3] ASH(UK) https://bit.ly/3RamVID

Explanation. Proxy sales refer to a person at or over the legal age of sale purchasing a product on behalf of someone under the legal age of sale.

Question 2: Do you think that proxy sales should also be prohibited?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No.
The measure, as described, would stop one adult from buying for another. The ban on proxy sales should apply only to adults buying for people under 18, or if the age of sale is increased, to those under 21. That would maintain the policy design as it is now. The binary nature of the question did not allow for appropriate nuance.

Question 3: Do you agree or disagree that all tobacco products, cigarette papers and herbal smoking products should be covered in the new legislation?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree
I disagree with the measure overall because it addresses a problem that has almost vanished; it is unworkable, and there are better, faster-acting policies.

However, if the government insists on pursuing this proposal, it should only apply to combustible tobacco.  This would align with the 5% “smoke-free” target for 2030 and with an appropriate risk-based approach to public health.

If this policy is adopted, under no circumstances should it include non-combustible tobacco products, such as heated tobacco or snus. Under no circumstances should it be extended to vaping products or pouches following consultation. The critical distinction for risk-based public health policymaking is between combustible and non-combustible products, not between tobacco and non-tobacco products or between traditional and novel products.

As well as denying adults the option to reduce risk by switching to a smoke-free tobacco product if that suits them, applying this measure to non-combustible tobacco products amounts to a misleading implicit risk communication. It suggests, falsely, that these products are as harmful as smoking products and so deserve equivalent restrictions. That is counterproductive for public health and public trust.

The government should be pro-health rather than anti-tobacco. The smoke-free 2030 target and the SDG NCD objective – all demand a focus on *combustibles*. The government should stick to managing risks while maintaining the choice of low-risk products available for adults to switch to. The policy challenge is to create a lawful, regulated recreational nicotine market with tolerable risks (i.e. based on a full range of smoke-free products) that makes *smoking* obsolete through consumer choice. The aim is to bring on the end of tobacco *smoking*, the truly damaging behaviour, not to adopt a war-on-drugs mindset towards tobacco or nicotine more generally.

Explanation. It is currently a legal requirement for retail premises to display the following statement ‘it is illegal to sell tobacco products to anyone under 18’. This requirement would need to be changed to align with the new age of sale proposal.

Question 4

Do you agree or disagree that warning notices in retail premises will need to be changed to read ‘it is illegal to sell tobacco products to anyone born on or after 1 January 2009’ when the law comes into effect?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree
The policy is a bad policy, and should not be implemented. If the government wishes to strengthen age restrictions, it would be better to raise the age for the legal sale of combustible tobacco products to 21 and amend the signage accordingly.  

Tackling the rise in youth vaping

Explanation. The government notes that vaping is an important tool for helping smokers to quit. However, it highlights the rise in youth vaping and seeks measures to reduce the appeal and availability of vapes to children. It does not adequately frame appropriate trade-offs between youth vaping and adults smoking, nor recognise that your vaping is displacing youth smoking. Despite the negativity about vaping, it does express a willingness to consider unintended consequences.

Restricting vape flavours

Evidence on vape flavours

However, research by London South Bank University has found that there is evidence that flavoured vaping products can assist adults to quit smoking. So, any restriction on flavours needs to be carefully balanced with ensuring vapes continue to be available and accessible to support adults to quit smoking.

Options for how we can restrict vape flavours

  • Option 1: limiting how the vape is described.
  • Option 2: limiting the ingredients in vapes.
  • Option 3: limiting the characterising flavours (the taste and smell) of vapes.

The characterising flavours of vapes (the way a vape smells or tastes to a consumer) can be restricted. In 2020, when menthol flavoured cigarettes were banned in the UK, they were restricted based on the characterising flavour of menthol. Finland, for example, has restricted all characterising flavours for vapes, apart from the flavour of tobacco.

Options for which flavours vapes should be limited to 

  • Option A: flavours limited to tobacco only
  • Option B: flavours limited to tobacco, mint and menthol only
  • Option C: flavours limited to tobacco, mint, menthol and fruits only

The government also consider regulating non-nicotine vapes in the same way.  

Question 5: Do you agree or disagree that the UK Government and devolved administrations should restrict vape flavours?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree – there isn’t a problem to which restrictions on vaping flavours would be a solution.
The binary nature of the agree/disagree question and the ambiguity of the word ‘restrict’ do not allow for a properly nuanced answer. I strongly disagree with category-wide flavour bans of the type implemented in some jurisdictions and mentioned here.  I strongly disagree with bans on characterising flavours as these are integral to the success of vapes as an alternative to cigarettes, both for adults and adolescents. Flavours, in all their diversity, underpin the consumer-based harm reduction approach and support the 2030 smoke-free goal.

The government has not demonstrated that vape flavours cause a problem rather than contribute to solving the material public health problem of youth smoking and helping adults quit. None of the data provided show that the vaping flavours *cause* vaping uptake, rather than just informing the choice of product among people interested in vaping or nicotine use anyway. None of the evidence cited shows that a broad flavour ban would work and not have harmful unintended consequences – for example, by increasing smoking, increasing risky practices in making, sharing or selling flavours informally or promoting illicit trade (which also would draw some young people into criminal networks).

However, there are two circumstances where some controls might be justified.  

First, to prevent inappropriate branding and descriptors.  As this is a form of marketing (rather than product characteristics such as a characterising flavour), it would be logical to extend the principles controlling vape advertising to the branding and trademark elements of flavour descriptors.

Second, some restrictions on ingredients can be justified, but only as a consumer safety and confidence measure, not as a way of eliminating flavours to reduce demand. But this is not about controlling youth vaping.

Question 6: Which option or options do you think would be the most effective way for the UK Government and devolved administrations to implement restrictions on flavours? (You may select more than one answer)

  • Option 1: limiting how the vape is described
  • Option 2: limiting the ingredients in vapes
  • Option 3: limiting the characterising flavours (the taste and smell) of vapes
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Option 1 and 2 with limitations
There are two limited circumstances where flavour-related restrictions might be justified using Option 1 and Option 2 – but the binary nature of the question does not allow for adequately nuanced replies. 

Option 1. It is acceptable to define and prevent inappropriate branding and descriptors.  As this is a form of marketing, it would be logical to extend the principles that govern vape advertising [1] to branding and trademark elements, including flavour descriptors, for any non-combustible product.

Option 2. Some restrictions on ingredients can be justified as a consumer protection and confidence measure.  These could prevent or restrict the use of harmful agents in e-liquids – chemicals that have carcinogenic, mutagenic, reprotoxic, or respiratory sensitiser characteristics. However, the purpose would be the protection of users (adults or adolescents), not deterring use by some a subset of the population.

Option 3. Prohibitions of this nature are not justified in any circumstances. It would lead to consumer workarounds, informal sector manufacturing, and illicit trade – and favour smoking products.  If such bans were imposed over broad categories, it would have multiple negative unintended consequences, including youth nicotine users reverting to or taking up cigarettes.  A recent analysis of broad flavour bans in the United States showed: [2]

“Matching new flavor policy data to retail sales data, we find a tradeoff of 15 additional cigarettes for every 1 less 0.7 mL ENDS pod sold due to ENDS flavor restrictions. Further, cigarette sales increase even among brands disproportionately used by underage youth. Thus, any public health benefits of reducing ENDS use via flavor restrictions may be offset by public health costs from increased cigarette sales.”

[1] Committee on Advertising Practice Code (Part 22 on E-cigarettes) https://www.asa.org.uk/type/non_broadcast/code_section/22.html
[2] Friedman et al. 2023 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4586701 

Question 7: Which option do you think would be the most effective way for the UK Government and devolved administrations to restrict vape flavours to children and young people?

  • Option A: flavours limited to tobacco only
  • Option B: flavours limited to tobacco, mint and menthol only
  • Option C: flavours limited to tobacco, mint, menthol and fruits only

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

None of the above

I will use the opportunity to comment on the simplistic policy framing implied by the question. The question only focuses on effective ways to restrict vape flavours to youth, as if that is an end in itself, which it is not. The goal is to reduce impacts on health and well-being. In fact, measures that address youth vaping must confront some significant trade-offs.

Any youth targetted measure has to balance impacts on three main groups:
1. Adults who smoke and or vape. They constitute the main population at risk of severe and imminent ill-health and health disparities – either through continued smoking or relapse from vaping to smoking. This group is approximately *sixteen times* as large as the other two.
2. Young people who would otherwise have become smokers and for whom vaping is a diversion from a harmful habit acquired early. For these users, youth vaping is significantly beneficial, and these are more likely to be young people concentrated in poorer communities.
3. Young people who would never have used nicotine in the absence of vaping . This group is likely to consist disproportionately of experimental, non-dependent, and transient users prone to fads and fashion. Given vaping is not very harmful, this group should not be the focus of policy at the expense of adults (1) and young people at risk from smoking (2).

There is no logical basis (and none is suggested) for arbitrarily choosing one or two flavours (tobacco or menthol) and somehow concluding these are acceptable and others are not. Part of the success of tobacco harm reduction is that vapes provide a rival value proposition to cigarettes, and part of that value is the diversity of flavours available, not just one.  We know that the vast majority of all adults use non-tobacco and non-menthol flavours and there are far more (approximately 16 times more) adult nicotine users in absolute numbers.

Question 8: Do you think there are any alternative flavour options the UK Government and devolved administrations should consider?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No
Limited versions of options 1 & 2, as set out in question 6, provide the only acceptable basis for flavour restrictions.  Option 1 should be used to align restrictions on branding and descriptors with other restrictions on marketing. Option 2 should be used in the consumer interest to reduce risks of toxicant exposure.

Question 9: Do you think non-nicotine e-liquid, for example shortfills, should also be included in restrictions on vape flavours?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No.
Options 1 & 2, as set out in question 6, provide the only acceptable basis for flavour restrictions in both nicotine and non-nicotine liquids.  Option 1 should be used to align restrictions on branding and descriptors with other restrictions on other forms of marketing. Option 2 should be used exclusively in the consumer interest to reduce risks of toxic exposure. Option 3, a flawed approach to youth vaping, should be rejected.

Note that excessive restrictions will trigger the creation of unregulated informal markets and criminal illicit trade in nicotine and non-nicotine liquids. So regulation done for safety reasons (Option 2) must be done in a way that promotes safer design and manufacturing processes, but not to create limits on the range of products available or to cause mass exit of legitimate vendors from the market, as this would be self-defeating. 

Shortfills are a creation of poorly designed EU regulations that limit container size for no reason. The UK should be using its regulatory autonomy to remove the pointless limits on container sizes that drive this workaround.

Regulating point-of-sale displays

The government proposes two options for regulating point-of-sale displays of vapes. While it notes that the public supports such restrictions, it does not provide evidence that this would have a net beneficial effect.

Question 10: Which option do you think would be the most effective way to restrict vapes to children and young people?

  • Option 1: vapes must be kept behind the counter and cannot be on display, like tobacco products
  • Option 2: vapes must be kept behind the counter but can be on display

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Neither
No evidence has been provided to support either option 1 or option 2, and no assessment has been made of potential unintended consequences. Such unintended consequences arise from:

+ Point of sale promotion of vapes is an “anti-smoking” promotion paid for by manufacturers and retailers and available at the place where smokers could make the decision to switch. Preventing this promotion protects the incumbent cigarette trade and works against the 2030 smoke-free goal.

+ It creates highly misleading implicit risk communication (i.e. it suggests parity with cigarettes and applies a restriction that does not apply to alcohol, which is far more dangerous to young people and adults than nicotine).  

+ An inability for potential users to handle the packaging and look closely at the details before purchasing. Unlike cigarettes, vapes do not come in just one shape and form. The appeal of vaping largely lies in the variety on offer – people need to see what the choice is and to select what they want. This measure would create a disadvantage for vapes compared to cigarettes, which are a more homogenous and familiar product.

+ Space limitations and requirements for special gantries could deter retailers from stocking vaping products.

+ Such measures provide anti-competitive advantages for the makers of high-volume mass-market products, including disposables and the products of tobacco companies.

Question 11: Do you think exemptions should be made for specialist vape shops?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Yes
Obviously. These shops would not be viable otherwise, and they represent a modern form of community smoking cessation and relapse prevention service and are potentially synergistic with local authorities and NHS efforts to reduce smoking and Swap to Stop. Being able to browse, examine the products, and look at the packaging information is integral to their business model and would not be possible from a distance.  

Question 12: If you disagree with regulating point-of-sale displays, what alternative measures do you think the UK Government and devolved administrations should consider?

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

The government should introduce a licensing regime for all outlets selling nicotine products. This would be used to support age-of-sale restrictions and other obligations on retailers, ultimately with loss of license as a sanction. In some cases, it could designate the shop as an 18+ environment and allow more relaxed restrictions than in a mixed retail environment.

The license need not be only for supporting age-of-sale legislation. A condition of the license could be occasional online training and qualification so that retailers are knowledgeable about risks and opportunities, do not make false claims, and act responsibly in point-of-sale promotion, again taking the CAP Code on e-cigarettes as a model. It could require participation in an approved recycling scheme.

Licensing does not create new issues of principle and already works for other adult-only products (alcohol) and services (gambling). 

Regulating vape packaging and product presentation

Explanation. The government argues that aspects of packaging are appealing to children, though it does not show these are causally implicated in vaping uptake (or it mistakenly believes these are the same thing).

It suggests three possible options for how packaging and presentation of vapes can be restricted.

Question 13: Which option do you think would be the most effective way for the UK Government and devolved administrations to restrict the way vapes can be packaged and presented to reduce youth vaping?

  • Option 1: prohibiting the use of cartoons, characters, animals, inanimate objects, and other child friendly imagery, on both the vape packaging and vape device. This would still allow for colouring and tailored brand design
  • Option 2: prohibiting the use of all imagery and colouring on both the vape packaging and vape device but still allow branding such as logos and names
  • Option 3: prohibiting the use of all imagery and colouring and branding (standardised packaging) for both the vape packaging and vape device

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Option 1 with reservations.
The goal is poorly expressed. The government aims “to reduce youth vaping”. But what if the chosen measure also increased adult smoking? What if these measures reduced the number of young people diverted from smoking to vaping and caused a revival in youth smoking? Is the aim to target only those youth who would take up vaping because of the packaging, but otherwise would never use nicotine? If so, the government should phrase the goal correctly and show it has supporting evidence. See my answer to Q7.

There is no evidence that packaging plays a strong causal role in vaping uptake (rather than merely affecting the subsequent choice of vaping product).  Uptake is far more likely to be driven by a range of psychosocial risk factors that are similar to those that drive smoking. Even if the government was convinced that packaging was a causal factor in vaping uptake, there is no reason to believe that a packaging intervention could differentiate between youth and adults, or between youth who would otherwise never use nicotine and youth who would otherwise smoke. Therefore, there is no basis to assume that such a measure would not do more harm than good.

This policy reasoning cannot be a simple “copy and paste” from the standardised packaging measure for cigarettes. Options 1-3 could easily cause perverse unintended consequences if the vape packaging measure is effective at deterring use. No such risk arises with plain packaging for cigarettes.

Though there is no evidence it would have a net beneficial effect, Option 1 would bring restrictions on packaging and branding in line with restrictions on advertising set out on the Committee on Advertising Practice code (Part 22). This might be seen as part of the vape industry’s societal license to operate
rather than an effective public health measure.

Question 14: If you disagree with regulating vape packaging, what alternative measures do you think the UK Government and devolved administrations should consider?

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

There is very little the government can do that will not do more harm than good – and the burden of proof rests with those proposing new measures to show they are not overall harmful to public health. The onus is on those who wish to regulate to show that they have considered the full range of plausible unintended consequences. These arise from placing restrictions on vaping products designed to deter the use of these products by one subset of the population, youth who would not otherwise use nicotine, without discouraging beneficial “harm reduction” use by adults who smoke or adolescents who would otherwise smoke.

For every measure proposed by the government and any additional measures proposed by tobacco control activists, the government should assess the following:

+ Will it reduce adults switching from smoking to vaping?

+ Will it promote relapse to smoking or inhibit migration from dual use to exclusive vaping? 

+ Will it reduce the number of adolescents who would otherwise smoke from diverting to vaping?

+ Will it foster illicit trade and criminalisation of supply?

+ Will it have the effect of closing down vape stores that function as community-based stop-smoking services for people who do not really want to quit nicotine?

Measures to reduce youth vaping use should include age restrictions applied to licensed retailers, controls on themes and placement of marketing, and controls on packaging, descriptors and branding that appear to be designed to attract youth.  

Restricting the supply and sale of disposable vaping products

Explanation. The government highlights (unquantified) environmental concerns about disposable vapes and notes the rise in use among young people. It proposes to address these problems by prohibiting disposable vapes.

Question 15:  Do you agree or disagree that there should be restrictions on the sale and supply of disposable vapes?  That is, those that are not rechargeable, not refillable or that are neither rechargeable nor refillable.

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree
Measures should not be focussed on limiting or eliminating the availability of disposable vape products. These products provide consumer benefits that include low costs, low upfront expenditure, nicotine delivery competitive with cigarettes, ease of use, convenience and a wide range of flavours.

Disposables provide an attractive proposition to smokers with low socio-economic status and other forms of disadvantage. They may be useful alternatives to cigarettes in some working conditions and for people suffering serious illnesses (such as dementia). They may also work for older smokers looking for a less complicated and technically intimidating alternative to smoking. Disposable products are an important convenience option for all vapers and may be important at particular points of vulnerability to smoking relapse (i.e. being able to purchase an affordable stop-gap product when they run out of liquid, lose or forget their device).  

The use of disposable is overwhelmingly concentrated in adults. Academic estimates suggest that 2.6 million adults use disposables in Britain [1]. Taking prevalence data from ASH [2], there are around 280,000 11-17-year-olds using disposables. So, nine in every ten users of disposables are adults.

The environmental externality associated with litter has to be placed in context with the high value attributed to smoking cessation and the threshold of up to £30,000 per QALY used by NICE.

The government must recognise that most of these products are already sold unlawfully.  The goal should be a responsible, well-regulated, lawful market.

Please consider the points made about disposables by the New Nicotine Alliance [3][4]

[1] Jackson et al. (2023) https://bit.ly/418l6Ap
[2] ASH https://bit.ly/47JhE1Q
[3] NNA https://bit.ly/3T3bSmU
[4] NNA https://bit.ly/47SVmu7

Question 16: Do you agree or disagree that restrictions on disposable vapes should take the form of prohibiting their sale and supply?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Disagree
The government should learn from the experience of other prohibitions. Banning a product does not make it disappear; it just changes who supplies it and how. Bans cause law-abiding regulated manufacturers and retailers to exit and supply to be arranged by the informal economy or criminal networks. There are no public health or environmental gains from promoting a switch to illegality, and a range of harms from increased criminal supply, including the incorporation of young people into the illicit supply chain, limited quality assurance and consumer protection, indifference to age restrictions, and willingness to supply other contraband goods and illicit services. It means that practical measures to address litter and recycling will become impractical.

In addition, it is unlikely that an illicit market will completely substitute for legal retailing. As a result, some harm reduction benefits to both adult smokers and youth who would otherwise smoke will be lost, creating net additional harm from tobacco smoking.

It is possible to ban products that few people use (for example, the ban on snus), but then we must account for lost opportunity. The UK banned oral tobacco products in 1989 following a moral panic about youth use of “Skoal Bandits”. That ban, originating in the UK, became EU policy in 1992 and has remained in place since, defying all logic, ethics and evidence. As a result, UK smokers have not had the option to use snus for the past 30 years. An unknown number of deaths could have been avoided had snus been available for uptake as a harm-reduction option in the UK for the last three decades. It is vital that activists and policymakers unacquainted with this fiasco learn this lesson for nicotine pouches: a hasty ban in response to a moral panic driven by a teenage fad could have a death toll of thousands through lost future opportunities.

Question 17: Are there any other types of product or descriptions of products that you think should be included in these restrictions?

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No. 
On the contrary, the government should be lifting bans and removing restrictions on smoke-free products.

Restrictions designed to deter use should be focussed only on combustible tobacco products, as these are the cause of serious net harm. The non-combustible products are important substitutes for the combustibles. The appropriate distinction for public health purposes is between smoked and smoke-free products, not between tobacco and non-tobacco products. A focus on the latter suggests that the government and activists in tobacco control are more anti-tobacco than they are pro-health.

To try to meet the 2030 smoke-free objectives, the government should be moving in the opposite direction with smoke-free products. This would include removing the ban on snus, removing bans on marketing heated tobacco products, and applying tax rates to HTPs in a manner proportionate to risk. In addition, the challenge is to introduce sensible, proportionate regulation for nicotine pouches with the aim of consumer protection and building confidence in these products as very low-risk alternatives to cigarettes. 

The government should not repeat the mistakes it made in pressing the European Union to ban oral tobacco in 1992 and so forgo the opportunities to reduce smoking that were so successfully exploited in Sweden in the intervening three decades.  For more depth on what should be done, I recommend following the 20-point agenda proposed by the New Nicotine Alliance. [1]

[1] New Nicotine Alliance: 20 proposals to meet the 2030 smokefree goal, 2022 https://nnalliance.org/images/Letter_to_Therese_Coffey_-_October_2022.pdf  

Question 18: Do you agree or disagree that an implementation period for restrictions on disposable vapes should be no less than 6 months after the law is introduced?

  • Agree
  • Disagree
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Agree
I disagree with the measure. I agree with the transitional arrangement if the measure is to proceed.
A ban on disposable vapes is not appropriate and would do more harm than good, given the market is already approximately 50% illicit. So, any ban would not be a ban on the product itself but a ban on lawful manufacturers and retailers, and remove any prospect of the use of regulation, tax or producer responsibility to address real or perceived problems with disposable vapes. The government should learn from the effect of prohibitive approaches in Australia and the United States, which have led to a chaotic and lawless mess in both cases.

However, if the government decides to proceed with such a reckless measure, then it should take measures to limit the likely damage to legitimate businesses, not least by allowing a transitional period of at least six months to clear inventory.

Question 19: Are there other measures that would be required, alongside restrictions on supply and sale of disposable vapes, to ensure the policy is effective in improving environmental outcomes?

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

If the government is still determined to proceed despite the wealth of experience concerning the malign effects of prohibitions, then it should introduce a range of damage limitation measures to contain the harmful effects of the policy.

First, include a transitional period to allow time for lawfully purchased inventory to clear.

Second, after twelve months and then every two years, publish an independent evaluation of the impact of the measure, including on youth vaping, smoking rates, use of products not banned, illicit trade, quality issues and risks, criminal convictions, and the engagement of young people in supply. Unintended consequences are the primary policy challenge for prohibitions of any type and the government must be prepared to evaluate these after the fact, even if it is unwilling or unable to assess them in advance.

Third, include a sunset clause so that the measure has to be affirmatively renewed every two years.

Fourth, intensify its promotion of vaping for harm reduction purposes so that the ban on disposables is not perceived as a negative risk communication about vaping or harm reduction in general and is focussed on specific aspects of the product.

Fifth, a ban would not make disposable devices disappear, but it would absolve the producers of any responsibility for litter and recycling. For that reason, the government would need to do more to shoulder the burden of waste management.

Non-nicotine vapes and other nicotine consumer products

Non-nicotine vapes

Question 20: Do you have any evidence that the UK Government and devolved administrations should consider related to the harms or use of non-nicotine vapes?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No.
I am unaware of evidence of this nature, but it should be possible to draw conclusions from the literature about nicotine vapes without the added concern about nicotine dependence or any adverse effects of nicotine. Much of the use of non-nicotine liquids arises from a pointless and counterproductive measure included in the EU Tobacco Products Directive (TPD); the limit on container size to 10 ml (Article 20, para 3a). It would be simpler and better to lift this restriction for that part of the UK not bound by the TPD.

The TPD has created an undesirable workaround and user response to restrictions on nicotine vapes. Further restrictions on nicotine vapes would boost the prominence of non-nicotine e-liquids. Problems with non-nicotine liquids would largely represent failures in the regulation of nicotine liquids.

Question 21. Do you think the UK Government and devolved administrations should regulate non-nicotine vapes under a similar regulatory framework as nicotine vapes?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

No.
It depends on what the regulatory framework is.  There is a logic to compatibility between nicotine and non-nicotine liquids, but if the regulatory framework was poorly designed, it would simply extend the range of unintended consequences.

Other nicotine consumer products – pouches

Question 22:  Do you have any evidence that the UK Government and devolved administrations should consider on the harms or use of other consumer nicotine products such as nicotine pouches?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Yes.
The government cannot consider the (trivial) harms of nicotine pouches in isolation from their effect on smoking or other more harmful patterns of nicotine use.

The exposure biomarker data suggest a risk below the level of snus and close to nicotine replacement therapy. For example, see:
Azzopardi et al. 2023 https://doi.org/10.1080/01480545.2021.1925691
Back et al. 2023 https://doi.org/10.1186/s13065-023-00918-1

That should be considered alongside evidence that pouches displace smoking and provide a form of safer nicotine use:
McCaffrey et al. 2022 https://doi.org/10.21203/rs.3.rs-951433/v2

This presents a range of opportunities for tobacco harm reduction, providing the right policy choices are made. Please see the discussion in:
Patwardhan & Fagerström (2021) https://doi.org/10.32388/L4TIAF.4

The government should be mindful of not repeating the lethal error it made in promoting the snus ban at the EU level following a moral panic about oral tobacco engineered by tobacco control activists in the late 1980s.  That ban has no public health or ethical basis and has denied millions of Europeans access to much safer products than cigarettes, which remain in free circulation throughout the EU.

The example of Sweden, which has already reduced smoking to a low level as a result of snus, should strongly inform the government’s approach to nicotine pouches. Pouches represent an opportunity to generalise the experience of snus to more countries and to more smokers. Any assessment of the implications of a ban must consider the likely unintended consequences for smoking reduction and the availability of the safest forms of consumer nicotine in future.  There is never a justification for trying to control nicotine demand by only allowing nicotine in its most dangerous forms to be the dominant product on the market.

Question 23

Do you think the UK Government and devolved administrations should regulate other consumer nicotine products such as nicotine pouches under a similar regulatory framework as nicotine vapes?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Yes.
Again, the binary question does not allow for appropriate nuance.

Yes, there should be a consistent, coherent framework for regulating nicotine products, but definitely not the framework that the government is proposing.

All these smoke-free product categories (vapes, pouches, heated and smokeless tobacco) should be regulated under a coherent risk-proportionate regime focussed on consumer protection and confidence. Measures to deter use should be reserved for combustible products only. The obvious reason for this is that smoke-free products are substitutes for smoked products among those wishing to use nicotine or unable or unwilling to quit. It follows that deterring the use of a much safer product will play out in practice as encouraging the use of a more dangerous product. Until the government grasps this essential challenge of regulating much safer products in a market dominated by very dangerous products, it will continue to offer incoherent policy proposals for public comment.

The problem is that the government is not proposing a coherent framework for either vapes or other smoke-free nicotine products.

Affordability – taxing vapes

Explanation. The government notes that vapes can be inexpensive but regards that as a problem rather than a benefit for those using them or for smokers contemplating switching. So it proposes to add taxation to its campaign to make vapes less appealing to young people.

However, this also means that vapes are more readily accessible to young people and other non-smokers, especially disposable and refillable devices.

Question 24: Do you think that an increase in the price of vapes would reduce the number of young people who vape?

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Don’t know
The focus of the question on young people is again inappropriate – almost as if the effect on older adult smokers, often living in poverty, is of little concern to the government. Yet that is the sub-population at greatest risk and by far the greatest in number.  The question is naïve as it ignores a number of negative effects that would arise from increasing vape taxes. This includes suppressing sales of legal and taxed vapes, an increase in demand for cigarettes, and incentives to buy and sell illicit products or otherwise avoid tax. Depending on how the tax is structured, it could promote a changed pattern of demand within the vape category. The way these changes would play out is unknown, and consultees who claim to know otherwise are, at best, overconfident. It would create punitive tax administration burdens for small-scale manufacturers and importers and favour the vape operations of tobacco companies.

However, given that vaping is widely accepted to pose a “small fraction of the risk of smoking”, it is clear that any uptick in smoking (in both adolescents and adults) would be likely to overwhelm any benefits from reductions in youth vaping among those who would not otherwise vape.

Numerous studies have found a positive cross-elasticity between vapes and cigarettes (i.e. when the price of vapes increases, demand for cigarettes increases). A summary is provided by Selya et al. [1]
A 10% increase in ENDS price is associated with an 11.5% (9.7%–13.4%) decrease in ENDS sales/purchases, and also decreased ENDS use prevalence [and] is non-significantly associated with a 1.1% (-0.5%–2.8%) increase in cigarette sales/purchases, and increased ENDS price was associated with increased smoking prevalence, propensity, and number of cigarettes smoked.

[1] Selya et al (2023) Meta-analysis of e-cigarette price elasticity:https://doi.org/10.12688/f1000research.129233.1

Enforcement measures

Explanation. The government recognises that laws need to be enforced, but it does not provide much insight into why “Underage and illicit sale of tobacco, and more recently vapes, is undermining work to regulate the industry and protect public health. ”

Question 25

Do you think that fixed penalty notices should be issued for breaches of age of sale legislation for tobacco products and vapes?

Powers to issue fixed penalty notices would provide an alternative means for local authorities to enforce age of sale legislation for tobacco products and vapes in addition to existing penalties.

  • Yes
  • No
  • Don’t know

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Yes.
However, fines will not be enough.  The sanctions regime needs to be strengthened by licensing retailers and withdrawing licenses after persistent violations of the terms.

Question 26: What level of fixed penalty notice should be given for an underage tobacco sale?

  • £100
  • £200
  • Other

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Other
The system should work like speeding offences. A fine plus points, with an accumulation of points leading to a suspension of a retailer’s license. Each offence would carry a fixed penalty fine, and points related to the severity of the breach of licensing conditions.

Question 27: What level of fixed penalty notice should be given for an underage vape sale?

  • £100
  • £200
  • Other

Please explain your answer and provide evidence or your opinion to support further development of our approach. (maximum 300 words)

Other
The system should work like speeding offences. A fine plus points, with an accumulation of points leading to a suspension of a retailer’s license. Each offence would carry a fixed penalty fine, and points related to the severity of the breach of licensing conditions.

Any differences between vaping and smoking terms should arise in the license conditions, not the fines for breaching the license conditions.

Option to add a file (yes): Overview and broader issues

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1 thought on “UK smoking and vaping policy consultation – my final response”

  1. Thank you for sharing your draft response to the UK Smoking and Vaping Policy Consultation. Your insights are valuable, and your well-reasoned arguments provide a thoughtful perspective on the matter. It’s commendable how you’ve articulated the complexities of the issue and presented a comprehensive response. I appreciate your dedication to fostering informed discussions on crucial topics like this.

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