Basis of the proposed regulations and what is covered
33. The Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (“the 2016 Act”) gives the Scottish Ministers powers to make secondary legislation (“Regulations”) to restrict advertising and promotion of vaping products, including e-cigarettes in Scotland. This means that the Scottish Ministers can introduce further restrictions on advertising and promoting these products.
34. A full public consultation for the Act took place in 2015 and identified substantial support for appropriate regulation of vape products. Approximately two thirds of those who responded to the 2015 consultation supported Ministers taking action beyond the existing restrictions on advertising and promoting vape products to protect young people and adult non-smokers from any form of advertising or promotion in Scotland. Sixty two percent supported introducing further restrictions on advertising and promoting vapes in Scotland and 70% agreed there should be exceptions – the most frequent reason given that advertising should be targeted towards current smokers.
35. The 2019 Scottish Health Survey found that e-cigarettes use among adults has remained relatively stable at seven percent since 2015. It also found that 20% of adults reported having ever used these products, with men and young adults more likely to have used one. Despite the fact that the number of smokers in Scotland has been reducing over time, the number of adults who vape regularly has been consistent since 2015. However, The Scottish Schools Adolescent Lifestyle and Substance Use Survey (SALSUS) 2018 showed that vape use by young people has increased since 2015. The number of 13 year old non-smokers who have tried vapes increased from 13% to 15%, and for 15 year olds who are non-smokers it rose from 24% to 28%.
36. As it is currently understood that using vape products is less harmful than smoking tobacco, we recognise the benefits in these products as a cessation tool. We would like to ensure that smokers are able to access a range of accessible and understandable information about vapes to inform them about the potential benefits of these products as an aid to stopping smoking. This will help counter significant levels of misinformation and misunderstanding about the respective risks of smoking and vaping. At the same time, we are concerned that adult non-smokers, young people and children would be exposed to some known and some unknown harms from the chemicals in vaping products if they were to use them as a lifestyle accessory. We do not want these groups of people to be encouraged to start using vaping products.
37. We therefore propose further restrictions on advertising and promotions of vaping products in Scotland, including restrictions on advertising on billboards, bus stops, vehicles, posters, leaflets, banners and certain published material (e.g. brochures and booklets), product displays whose purpose or effect is to promote vaping products and certain audio-visual media (e.g. publically exhibited moving-picture advertisements).
38. In addition we propose to introduce restrictions on brand-sharing in products and services, free distribution and nominal pricing, and sponsorship of activities, events or people in Scotland.
39. We would introduce these proposed restrictions through Regulations made under the 2016 Act. The Regulations could also introduce offences and penalties, with statutory exceptions and defences, and make provision about the function of enforcement officers.
40. The proposed restrictions already apply to tobacco products. We propose to include in the Regulations the same maximum penalties for contraventions of the proposed restrictions on vaping products as those in place for contraventions of equivalent tobacco restrictions, as we consider that those penalties are dissuasive yet proportionate. The penalties for tobacco restrictions are contained in the 2002 Tobacco Advertising and Promotion Act 2002 (“the 2002 Act”).
41. For enforcement provisions, we propose to give local authority enforcement officers the same powers as those afforded to them under the Tobacco and Primary Medical Services (Scotland) Act 2010(“the 2010 Act”), and to make it an offence to obstruct or fail to comply with an order from an enforcement officer.
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