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Leaving the EU: Tobacco Products and Public Health

Volume 652: debated on Monday 7 January 2019

Happy new year, Mr Deputy Speaker.

I beg to move,

That the draft Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2018, which were laid before this House on 1 November, be approved.

Smoking causes 78,000 deaths a year in England, accounting for 16% of all deaths annually. The United Kingdom is a global leader in tobacco control and the Government are committed to ensuring that we remain so after we leave the European Union. As hon. Members know, the Government have negotiated a deal with the EU and are in the process of taking it through Parliament. As has been much discussed, the deal is designed to secure a smooth and orderly exit from the EU. At the same time, it is of course the job of a responsible Government—I am pleased to say that the shadow Leader of the House is listening intently—to prepare for all possible scenarios. We are committed to ensuring that our legislation and policy function effectively in the event of no deal. It is for this scenario that these regulations have been laid. If the UK reaches a deal with the EU, the Department will revoke or amend this instrument to reflect that agreement.

This instrument will ensure that the UK domestic legislation that implements the two main pieces of EU tobacco legislation—the tobacco products directive and the tobacco advertising directive—continue to function effectively after exit day at the end of March. The instrument also amends and revokes some EU tertiary legislation that will no longer apply to the UK after our withdrawal. The amendments and revocations are being made under the European Union (Withdrawal) Act 2018 and are necessary in order to correct deficiencies in the UK and EU legislation in the event of no deal. The primary purpose of this instrument is to ensure that tobacco control legislation continues to function effectively after exit day. These proposed amendments are critical to ensure that there is minimal disruption to tobacco control if we do not reach a deal with the European Union.

This instrument introduces three main changes. First, in the event of no deal, the UK will need to develop its own domestic notification systems for companies that wish to sell tobacco products and e-cigarettes on the UK market. The notification process is essential for ensuring that companies are complying with legislation on product standards. Public Health England and the Medicines and Healthcare Products Regulatory Agency have already commenced work to ensure that domestic notification systems are in place and functional by exit day.

Secondly, in the event of no deal, the UK will not hold copyright to the EU library of picture warnings for tobacco products. Requiring the industry to continue to use these pictures would breach copyright law. Picture warnings are a key part of tobacco control, and it is therefore extremely important that we continue to require the inclusion of graphic picture warnings on tobacco products. The UK has therefore recently signed an agreement with the Australian Government to obtain their picture warnings free of cost—who knew, Madam Deputy Speaker? This agreement covers all copyright issues. I am very grateful to the Australian Government for their assistance in this matter. Action on Smoking and Health supports the proposals on notification systems and on the picture warnings as

“pragmatic and practical, minimising the amount of additional work involved if there were to be a no deal Brexit.”

Thirdly, this instrument proposes a transfer of powers. Currently, the Commission holds a range of powers under the tobacco products directive that enable it to respond to emerging threats, changing safety and quality standards, and technological advances. This instrument transfers these powers from the Commission to the Secretary of State. It should be noted that all powers in this category relate to technical, scientific and administrative adjustments that may be necessary to respond to changing circumstances in this space.

This instrument will have some impact on the tobacco and e-cigarette industry—there is no getting away from that. My Department ran a short technical consultation in October to seek feedback on the practical issues that will affect the industry in a no-deal situation. It focused on picture warnings and the notification process that I have outlined. We received 32 responses and have welcomed practical feedback on the issues highlighted in the consultation. Tobacco control stakeholders expressed support for the continued use of picture warnings as an effective way of stopping people smoking. They also showed support for the proposals to amend the notification system for e-cigarette and tobacco products as a means of harm reduction. The tobacco industry raised concerns around the timing of implementation and cost, primarily in relation to the changes to picture warnings. The Department has consulted with external experts who confirmed that the timescale for industry to implement these changes would be difficult but certainly manageable. To support industry with these changes, the Department intends to publish detailed guidance later this month.

Let me say a word on the devolved Administrations. It is important to note that the DAs have provided their consent for the elements of the instrument that are considered to be devolved. Furthermore, we have engaged positively with them throughout the development of this instrument. This ongoing engagement has been warmly welcomed. I want to place that on the record for our friends in the devolved Administrations.

In conclusion—

In conclusion, Madam Deputy Speaker, taking my lead from your look—Members will have a chance to contribute—this instrument constitutes a necessary measure to ensure that our tobacco control regulations continue to work effectively after exit day. I should, however, emphasise that, due to the instrument being made under the withdrawal Act, the scope of the amendments in the instrument is limited to achieving that objective. Therefore, at an appropriate point in the future, the Department will review where the UK’s exit from the EU offers us opportunities to reappraise current regulation to ensure that we continue to protect the nation’s health. That is timely on this day of all days, when we have published our long-term plan.

I urge Members to support the instrument, to ensure the continuation of effective tobacco control and harm reduction. I commend the regulations to the House.

I apologise to the Minister for my moment of inattention a minute ago. It was not inattention to what he was saying; it was that I had happened to look at the statutory instrument before us, which for the first time in parliamentary history is illustrated. The illustrations are shocking. Having listened carefully to what the Minister said, I was making a mental note to ensure that every teenager I know sees these illustrations. It is not for me to make any value judgment on whether one should smoke, vape or otherwise. The Minister has done that very well.

It is a pleasure to be here on the first day back to discuss these interesting and colourfully illustrated amendment regulations on tobacco products and nicotine inhaling products, not tucked away in a Committee Room but on the Floor of the House.

As I have said previously on EU exit secondary legislation, I still strongly hope that we leave with a deal and that all these SIs will have been for naught. I understand that, as a matter of contingency planning, it is only right that we discuss these changes as a just-in-case measure. However, I have to say again that if a no-deal scenario was ruled out once and for all, none of this would be necessary, saving vital taxpayers’ money that could have been better spent elsewhere. As I understand it, these no-deal SIs run to around 900, so that be a substantial sum of money. But here we are. The Minister has already set out what these regulations mean, so I will not repeat any of that.

Smoking rates have declined. However, it is estimated that around 6.1 million adults in the UK still smoke. I hope that they were listening to your comments, Madam Deputy Speaker, and that we all show those awful images to as many people—young and old—as possible, because it is never too late to quit. Hospital admissions attributable to smoking increased by 2% in 2016-17 compared with the previous year, and last year we also saw a small increase in the number of women smoking during pregnancy.

Those figures are not surprising when coupled with the fact that £96 million has been cut from the public health budget this financial year alone, adding up to £800 million by 2021. That means cuts to vital public health services, which both the Minister and I are passionate about, including smoking cessation services. The Government must reverse these public health budget cuts if they are serious about reducing smoking rates. It is a shame that today the Secretary of State missed yet another opportunity to do that, in his statement on the NHS 10-year plan. There was no reversal or any new money that I could see for smoking cessation services or public health services. He did, however, maintain that prevention was at the forefront of the Department’s forward view, which was welcome. If that is the case, the high standards for the safety and quality of tobacco and nicotine products must be maintained or even improved if the UK leaves the EU without a deal.

With that in mind, I have a few questions about the regulations. Will they have any impact on the current advice on e-cigarettes? Will the Government be undertaking a review of e-cigarette regulations to ensure that they are fit for purpose and encourage their use by smokers to quit smoking, while also discouraging uptake by young people? More generally, will the amendments allow for regular reviews and updates of the health warnings?

That brings me to the picture warnings on cigarette packets—anyone who wants to see the new ones can find them at the back of the draft regulations. They replace a number of unappealing photographs that we currently use with new photographs, which are under copyright by either the Commonwealth of Australia or Professor Laurence J. Walsh of the University of Queensland. I am sure that this is a short-term fix, but could the Minister please elaborate, and provide some clarity, on what agreement has been reached with the Australian Government, or indeed with Professor Walsh, on using the photographs? In what form was the agreement made, what does it cover, and how and to what extent does it affect the rights of the copyright owners? What payment, if any, will the Australian Government or Professor Walsh be entitled to as a result? What conditions and constraints will there be on UK businesses using these photographs? What about current packaging that uses the old images? I hope that some contingency has been made for those to continue to be sold.

I am under the impression that these photographs are still being evaluated by the Australian Government. If they are found not to be fit for purpose in Australia, will the Minister take that to mean that they are not fit for purpose in the UK either? I know that the Government will be publishing detailed guidance on the picture warnings and the notification process this month, but it may be beneficial to businesses if the Minister could please give a better idea of when they can expect to receive the guidance?

Finally, do the Government have any plans to use UK-sourced or commissioned photographs? Surely we have some comparable images of our own, taken by doctors or researchers, that we could use? If not, are plans in place to acquire some? The legislation also introduces a fee-making power for characterising flavours and emissions on nicotine and tobacco products. Will the Government be using that power immediately, and what impact will it have on businesses?

Unfortunately, smoking is still prevalent in our country, which is why we must ensure that tobacco and nicotine products meet the highest safety and quality standards. If the worst happens and we do leave the EU without a deal, we must ensure that these standards are upheld, so the Opposition will support the regulations today, in the hope that they will not be needed.

It is a pleasure to follow the hon. Member for Washington and Sunderland West (Mrs Hodgson). It is fair to say that all the changes to tobacco regulations that have been made in this House have come from the Back Benches, with pressure being put on the Government, whichever party has been in power, to make the necessary changes. It is therefore a great pleasure to see my hon. Friend the Minister and the Opposition spokesperson, who are both tremendously supportive of making the necessary changes and implementing tough regulations on tobacco products.

This is clearly one of those statutory instruments that will be required if there is no deal. In any case, once we leave the European Union we will be responsible for our own measures on tobacco enforcement. It is therefore timely that we are having this debate now, before we leave the European Union. Clearly the measures are pragmatic and will minimise the amount of work required once we leave the European Union. However, I have one or two concerns that I hope the Minister can respond to when he sums up.

The current system for notification of e-cigarettes and novel tobacco products is reasonable and minimises additional work, but products that are notified to the UK prior to leaving the EU will not require re-notification. My concern is whether such novel products will come to the fore between now and our departure date, and what the effect of having a deal would be, and therefore whether there we be another period of time in which those products could be introduced. Would we then need to review how those products are dealt with under this statutory instrument?

Secondly, on the picture warnings that we obtained from Australia, which the hon. Member for Washington and Sunderland West mentioned, one of the key issues is that people who smoke get used to cigarette packets showing messages. We need to rotate those messages and pictures so that they shock people. We want to shock people, particularly young people, to stop them smoking. The concept of rotating pictures and identifying the best images to achieve that shock factor is key. I trust that my hon. Friend the Minister will consider that and keep it under review so that we can introduce it, if needed.

There clearly needs to be a longer-term review, so my third point is that we need to see a report by 20 May 2021, which would give us an opportunity to review all the regulations that apply not only to tobacco products but to e-cigarettes and other heated tobacco products. The Australian Government will clearly evaluate their various different initiatives, and it is fair to say that we have been at the forefront, both in Europe and across the world, in leading on tobacco control. It is therefore important that we encourage smokers to quit and prevent young people from starting to smoke.

Will my hon. Friend undertake to review the regulations regularly so that we can encourage young people and others to give up smoking and, equally, ensure that measures are in place so that people who want to give up are given help and support to do so? More importantly, we should ensure that doctors, when reviewing people’s cases, are directing those who smoke to the help and support they need in order to give up and to have better personal health.

I warmly welcome this statutory instrument, but I hope the Minister can give me some reassurance on those three points.

Again we are rushing through a statutory instrument because of the threat of a no deal. I would be interested to know what the Minister might be doing differently if we were not having to rush this through.

Smoking is obviously a critical cause of cancer, and although smoking rates have dropped over the past 20 years, there are still far too many people smoking. I welcome the commitment in the explanatory memorandum and the regulations to minimal change in tobacco control. It is important we recognise that smoking also causes non-cancerous diseases such as heart and lung disease and strokes, and is probably the biggest single cause of morbidity in our country.

The regulations mention that we are revoking the common European notification system for both e-cigarettes and tobacco—this is not just about tobacco—and that it will be replaced by a UK system. The Minister talked about the MHRA taking on that work. Will it be ready by the end of March? As the hon. Member for Washington and Sunderland West (Mrs Hodgson) asked, will the guidance to industry definitely appear before the end of this month? That is very close, yet the Government are asking industry to change the pictures it is using, and may be asking it to change how some of the warnings are constructed.

Under proposed new regulation 53A of the Tobacco and Related Products Regulations 2016, the Secretary of State will be able to collect fees to fund this work. Will the fees be collected on a continuing basis, with industry having to register with such a body and pay ongoing fees, or will it be only on the registration of a new product? What we might see is the same as we are likely to see on drugs: if a company has to register a product in Europe and then go through a separate process here, it might not register the product here. Although I am obviously not a big fan of tobacco producers, it is important that we do not undermine those producing e-cigarettes and vapes that have helped people come off cigarettes.

The new pictures have been mentioned. The hon. Member for Harrow East (Bob Blackman) talked about the need to rotate them. Unfortunately, it does not matter what image we are talking about, but if people see it all the time they become inured to it. It is important that any regulations in the UK shadow what we have been doing with our EU colleagues as much as possible.

The Minister talked about the consultation in October, and the explanatory memorandum referred to industry and stakeholders. Will he perhaps clarify for us whether any anti-smoking charities or any health bodies were represented?

Proposed new regulation 16A(2) gives the Secretary of State the ability to allow change in e-cigarette and vape formulations and standards. What concerns me is that paragraph 6.4 of the explanatory memorandum mentions the discussion about the standards being “too onerous”—not for the user, but for the industry—and too restrictive. It is absolutely critical that we do not lower these standards, because if this decision just slips through without our being able to interrogate it, we may regret it further on.

The regulations will revoke section 2(4) of the Tobacco Advertising and Promotion Act 2002, which means that no EU member state is allowed to advertise tobacco in another member state. The explanation is that EU member states could advertise tobacco in the UK, and we should therefore revoke our obligation not to do that to them. Unfortunately, this is exactly the tit-for-tat race to the bottom that the EU regulations were intended to avoid. Does the Minister really think that allowing UK companies to advertise in Ireland, Holland or France is going to benefit people here?

It is of concern that proposed new regulation 53A, which is on setting fees, says that such statutory instruments must be carried through using the affirmative process, yet all other changes to regulations will be allowed to be carried through under the negative procedure.

It is critical that the standards of tobacco products, e-cigarettes or vaping mixtures are maintained at as high a quality as possible. There is evidence that young people are beginning to use vaping de novo. Initially, there has been great benefit in getting cigarette smokers off tobacco and vaping using or e-cigarettes. However, it must be remembered that the pulmonary membrane in our lungs is the most sensitive membrane in the body, and we cannot allow the addition of harmful chemicals that may cause destruction or fibrosis and leave people crippled in the future. We do not yet have long-term experience of these vaping fluids, and it is critical that the Government keep them under observation and maintain as high a standard as possible.

I want to follow the remarks of the hon. Member for Central Ayrshire (Dr Whitford) about the impact of these regulations on vaping products. The vaping industry welcomes the Government’s sensible planning, but has a particular concern about products that are already registered with the EU. The industry producing such products is looking for some clarification from the Minister and some assurance about whether products that are already registered will need to be re-registered under the new UK-based system.

The Minister has spoken about the opportunity to reappraise our legislation. Of course, e-cigarettes are controlled by the tobacco products regulations, despite there not being any tobacco at all in such products. There are three issues that are of concern to users in particular. The first is the cap on nicotine strength in vaping liquids. In many cases, it is too low to encourage heavy smokers to switch to e-cigarettes, which we know are far better for their health and which we want to encourage. There are restrictions on both the size of bottle in which vaping liquids can be sold and the tank size of vaping devices, both of which appear to be completely arbitrary, with no basis to them.

Both users of e-cigarettes and the manufacturing sector are hoping that this may be an opportunity for the Minister to rectify the regulations, which, frankly, are nonsensical. I look forward to the Minister’s response on those points.

I will be succinct, Madam Deputy Speaker. I just have a couple of quick questions for the Minister, but first let me say that I welcome the regulations.

Before recess, I asked the Minister a number of questions that came from the tobacco sector itself. Has he had any contact with the sector to seek its opinion on proposed legislation to ensure that what is put forward reflects its point of view?

The Minister referred to the devolved Administrations. I am ever mindful of the current situation in Northern Ireland, which I hope will change. We have a non-functioning Assembly, which means that the responsibility for the administration of legislation falls on the permanent secretary and civil servants. Will that be done through a statutory instrument, so that the permanent secretary can make a decision? Legislation passed in this place last year on the Northern Ireland Assembly gives the permanent secretary the authority to make a legislative change. I just want to be sure about how that will work in Northern Ireland.

Madam Deputy Speaker, those are my succinct comments.

I will briefly address some of the points that have been raised. The hon. Member for Washington and Sunderland West (Mrs Hodgson) says she hopes that no-deal contingency will not be needed. Fortunately, I have a cunning plan to ensure that it is not needed, which is to vote for the deal next Tuesday. I look forward to her support.

A number of Members talked about e-cigarettes. The best thing a smoker can do for their health—I have always said this—is to quit smoking. E-cigarettes are not harmless: the nicotine is toxic and addictive, and there are unanswered questions on the long-term effects of their use. There is, however, evidence that e-cigarettes are significantly less harmful to health than smoking tobacco. The control plan that I published last year commits to monitoring the safety, uptake, impact and effectiveness of e-cigarettes and novel tobacco products. We will review all the regulations as part of our post-implementation plan by May 2021. A number of Members referred to that, for which I am grateful.

My hon. Friend the Member for Harrow East (Bob Blackman), the hon. Member for Washington and Sunderland West and the hon. Member for Central Ayrshire (Dr Whitford) talked about the rotation of warning images and the deal with the Australian Government. The deal is indeed to use their picture warnings free of charge. That is very kind of our friends down under. The rotation of picture warnings so that people do not become desensitised to them is very important. We are aware of the benefits of rotating the warnings. In the medium to long term we will consider our options, and they may well include the option of developing new domestic picture libraries. My hon. Friend the Member for Harrow East said that there are plenty of images. I am sure we can access them domestically, and I will be looking at that.

My hon. Friend the Member for Harrow East talked about products that have already been notified. A new notification system, which will be in place on exit day in a no-deal scenario, has been developed. If there are novel products, they will be notified through the new system. Products notified between now and exit day will continue to be notified through the EU system. I have to say that I am not aware of any novel products that are due to be notified by the current or new notification processes, but they will be able to deal equally effectively with any novel products that appear on the market.

This is an important statutory instrument. The hon. Member for Central Ayrshire said that we must not in any way water down or lose our ambition on tobacco control. I think she knows me well enough to know that I certainly do not lack ambition in this space. One of the first things I did in this job was to publish the tobacco control plan. Tobacco is still our biggest preventable killer. She is absolutely right to say that, and it is why such a central part of the long-term plan is prevention. One of the simpler things we can do to prevent ill health and the cost it brings to our health service in England, as well as in Scotland, is to stop people smoking.

The hon. Lady asked whether the notification system will be ready. I think I said in my opening remarks that the feedback we have had from the industry is that that will be challenging, but the advice we get from experts is that it will be ready. She also asked about fees being charged on an ongoing basis. I will have to write to her on that point, but I will endeavour to do so this week so that she gets the answers she wants. I have already answered the question about lowering standards, which we most certainly do not want to do.

We are absolutely committed to the tobacco control measures I set out in the plan. I want to ensure that we maintain discipline and our focus on preventing ill health by driving down smoking rates, and we will review all our tobacco control legislation by 2021. Of course, if the House supports the deal next Tuesday, the draft regulations will not be necessary, but in the event that they are, we will be ready.

Question put and agreed to.

On a point of order, Madam Deputy Speaker. We are about to debate a matter of huge constitutional significance. Hitherto, the sole criterion for voting in Committees of this House has been election. If this measure passes, we will change that to allow people who have not been elected to vote in Committees of this House. That would be a huge change, which we are about to rush through in 40 minutes, without proper scrutiny. The Government have already withdrawn one motion from today’s proceedings. Is there any way that, through your offices, you can ask the Government whether they would be prepared to withdraw this motion so that we can debate it fully and properly at an appropriate time?

I fully understand and have some sympathy with the point the right hon. Gentleman makes. It is indeed the case that we have a very short amount of time for this important debate. Of course, as he knows, I have no power from the Chair to do anything about the timetabling of matters in the Chamber. As I look at the Leader of the House, I see that she has a determination to get on with this debate now. I can well understand that. It is in the power of the Government to change the business, but as the right hon. Gentleman knows, the House is very busy. All I would say is that I hope people will speak succinctly and briefly, and that it is unfortunate that the earlier business took so long, with so many people saying the same thing over and over again but insisting on having their voices heard, which has curtailed the debate on this very important piece of business.

Further to that point of order, Madam Deputy Speaker. My right hon. Friend the Member for New Forest West (Sir Desmond Swayne) rightly says that this is a very important constitutional issue. At 10 o’clock, will the motion immediately go to a vote, or will it require a closure motion?

The hon. Gentleman makes a very good point. If the debate is still continuing, there will be no vote. However, I say once again that this matter is in the hands of Members. If Members who prolonged the urgent questions and statements earlier are listening or paying any attention—there is a very good chance that they have given up and gone home—they know that it was their actions earlier in the day that curtailed this debate. Let us not curtail it any further.