Vaping products - tightening rules on advertising and promoting: consultation analysis

10 Defences

10.1 Question 8b - Defences

The defences to the offences would also mirror those laid out in the Tobacco Advertising and Promotion Act (TAPA) 2002. This would mean:

• A person would not commit an offence of advertising and promoting a vaping product if they did not know, and had no reason to suspect, that this was the purpose of the advertisement.
• A person would not commit the offence of promoting vaping product if they could not reasonably have foreseen that would be the effect of the advertisement.
• A person would not commit an offence if they did not know, and had no reason to suspect, that the vaping product advertisement would be published in Scotland.
• If an advert is distributed, a person would not commit an offence if (a) they were unaware that what was distributed or caused to be distributed was, or contained, advertising for vaping products; (b) having become aware of it, it was not reasonably practicable for to prevent further distribution.
• A person would not commit an offence if they did not know, and had no reason to suspect, that the publication contained an advertisement for vaping products.

Do you support the proposal that defences should be as laid out as above?

Table A8b (Appendix A) provides the quantitative response to Question 8b.

The views of respondents are mixed:

• Almost half of all respondents support the proposal (49.5%) that defences should be as laid out as outlined in the Consultation Paper. The level of support among organisation respondents is higher than among individual respondents (71.4% and 48.5% respectively). Among organisation respondents this includes the tobacco industry and health organisations.
• 39.8% of all respondents do not support the proposal. Individuals are more likely than organisations to not support the proposal (41.0% and 14.3% respectively). Among organisation respondents this includes local government.

10.1.1 Potential confusion about the question

There appears to be some confusion with this question – most respondents repeat or refer to their responses to previous questions. These mostly relate to general views on tightening advertising restrictions.

10.1.2 Respondents who support the proposal

Only 8% of all respondents who support the proposal provide further explanation relating to the alignment of defences to offences to those laid out in the 2002 Tobacco Advertising and Promotion Act. Many responses simply restate their support for the proposal.

Theme 1: Proposal would ensure a consistent approach

Most respondents (e.g. health organisations) that provide comment feel it would be reasonable and appropriate for the defences to the offences to also mirror those laid out in the 2002 Act for tobacco advertising and promotion (see Section 9). These respondents note that this would ensure a consistent approach.

Theme 2: Local authority funding protected for this purpose

Some health organisations request that funding allocated to Local Authorities for the purpose of defences is protected to enable a consistent approach across Scotland. There is, however, recognition among these respondents that “issues with regards distribution of funding may result in this being implemented differently in Local Authorities across Scotland and in some cases, this may lead to differences within Health Board areas”.

Further, ASH Scotland note that “Local Authorities and Trading Standards or equivalent enforcement officers should be adequately resourced to enforce the regulations and have powers to issue fines and penalties in line with those for tobacco regulation infringements”.

10.1.3 Respondents who do not support the proposal

Among respondents who do not support the proposal to mirror defences, one-fifth provide further comment. Most comments do not relate to the proposal about defences and repeat/refer to responses to previous questions:

• These respondents do not support the proposal as they feel it fails to distinguish vaping and tobacco products as different products with different levels of risk and harm.
• A few of these respondents feel that there should be no restrictions placed on advertising (with the implication that defences would not be required).

Theme 1: The proposal presents a potential loophole

Where comments relate to the proposal at Question 8b, some respondents feel that there is a potential loophole in mirroring the defences in the 2002 Act as there is said to be too much of a focus on it not being the intention to commit an offence. Local government respondents suggest it may be appropriate to include “a defence of exercising all reasonable precautions and due diligence” rather than simply mirroring the defences of the 2002 Act.

“We have some concerns around the existing defences as laid out in [Tobacco Advertising and Promotion Act (TAPA) 2002], and we would recommend the inclusion of a “reasonable precautions and due diligence” defence rather than the ones suggested and contained in TAPA 2002. This is a widely accepted approach and would afford protection for traders who have been diligent and taken reasonable steps in their business practices, to be able to use this defence against an unwitting mistake or actions of a third party.”

Society of Chief Officers of Trading Standards in Scotland (SCOTSS)