Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024: enforcement guidance

D: Enforcement

Enforcement work will be undertaken by local authority enforcement officers, normally Trading Standards Officers, who will be authorised by the local authority to exercise the enforcement powers in the Vapes Regulations to determine whether an offence has been or is being committed.

Powers of Entry and Investigation

• Enforcement officers will be authorised by local authorities to exercise the enforcement powers contained in of the Environmental Protection (Single-Use Vapes) (Scotland) Regulations 2024, which includes the power to enter premises to investigate.
• The full powers of entry, investigation and examination are contained within Regulation 9.
• The powers of entry under these Regulations are subject to a higher threshold than other Trading legislation - “reason to believe” as opposed to “suspicion”. This is due to the powers used to make these Regulations.
• Regulation 9 states that an enforcement officer may be accompanied by another enforcement officer, and if the enforcement officer has reasonable cause to apprehend any serious obstruction in the execution of that person’s duty, a constable. Due to the powers these Regulations were made under, the definition of an enforcement officer is limited to what is contained in Regulation 2. However, whether a person who is not an enforcement officer, such as a Police constable, Environmental Health Officer or Licensing Standards Officer, can enter the premises with an enforcement officer depends on their own authorisation under applicable legislation.
• Where a person refuses entry, an enforcement officer may where they have reasonable grounds for entry into the premises for the purposes of investigating an offence under the Vapes Regulations seek a warrant to enter following the procedure outlined in Regulation 10.

Fixed Penalty Notice Provision

• If an enforcement officer has reason to believe that a person is committing or has committed an offence, the enforcement officer may issue a fixed penalty notice, as set out in Regulation 11.
• A fixed penalty notice provides the recipient with the opportunity to discharge any liability to conviction for the offence by paying the fixed penalty within a defined period of time, as set out below.
• In the case of a first offence, an enforcement officer may issue a £200 fixed penalty notice, which if paid within 14 days would be reduced to £150.
• Where a person is issued with a fixed penalty notice and that person has been subject to previous enforcement action (either a previous fixed penalty notice or a conviction for an offence under Regulation 4(1)) within the previous three years, the fixed penalty notices amounts and discounted amounts are set out in the table below.

Contents of a Fixed Penalty Notice

Regulation 12 sets out that a fixed penalty notice must:

a) Set out the particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

(b) set out the period during which by virtue of regulation 16(3)(a), proceedings will not be instituted for the offence.

(c) set out the amount of the fixed penalty, including the discounted amount that applies where payment is made before the end of the period of 14 days beginning with the date of the notice,

(d) set out the period within which the fixed penalty must be paid, including the period within which discounted amount must be paid in order for the discount to apply,

(e) explain that the fixed penalty notice contains an offer to discharge liability for the offence by payment of a fixed penalty and that the person is not required to accept that offer,

(f) explain that should the person choose not to accept the offer to discharge liability for the offence by payment of a fixed penalty, that person may be prosecuted for that offence,

(g) state the person to whom the fixed penalty may be paid, and the address at which the fixed penalty may be paid.

Prosecution

• Under Regulation 4(1), it is an offence for a person, in the course of business, to supply, offer to supply, or have in their possession for supply, single-use vapes.
• As set out in Regulation 11, enforcement officers have the authority to issue fixed penalty notices, which provides an alternative to prosecution for an offence under Regulation 4(1).
• If an individual chooses not to accept a fixed penalty notice, where an enforcement officer does not deem it appropriate to issue a fixed penalty notice, the enforcement officer may report cases to the Crown Office and Procurator Fiscal Service, who also have powers to prosecute the offences under the Vapes Regulations, including offences under Regulation 4(1).
• A person who commits an offence under Regulation 4(1) is liable:
  • on summary conviction to a fine not exceeding level 5 (currently £5,000) on the standard scale,
  • on conviction on indictment, to a term of imprisonment not exceeding 2 years or a fine, or both.
• Under Regulation 5(1), it is an offence, where a person fails to comply with an enforcement requirement. A person who commits an offence under Regulation 5(1) is liable:
  • on summary conviction to a fine not exceeding level 5 (currently £5,000) on the standard scale.
• As set out in Regulation 11(7), it is an offence to provide false information or refuse to provide information to an enforcement officer who proposes to issue a fixed penalty notice.
• A person who commits an offence under Regulation 11(7) is liable:
  • on summary conviction to a fine not exceeding level 3 (currently £1,000) on the standard scale

Ministerial Direction as to Disposal

• As provided for in Regulation 14, Scottish Ministers may direct that single-use vapes in respect of which an offence under Part 2 has been committed are to be treated as waste and disposed of, or otherwise treated as the Scottish Ministers consider necessary.
• This would include any single-use vapes which have been supplied, offered for supply or held in a person’s possession for supply in contravention of Part 2, and any single-use vapes in respect of which an enforcement officer has issued a fixed penalty notice under Regulation 11 and the fixed penalty has been paid in accordance with Regulation 13(3).
• A Ministerial direction under Regulation 14(1) may be given to any one or more local authorities in connection with any enforcement action taken under the Vapes Regulations
• A direction under Regulation 14(1) must not be executed by the local authority concerned until any right of appeal in relation to the offence is exhausted.