The Tobacco and Vapes Act 2026 (Commencement No. 1, Transitional and Saving Provisions) (Scotland) Regulations 2026 - Business Regulatory Impact Assessment

Section 1: Background, aims and options

Background to policy issue

Improving health and reducing health inequalities across Scotland is a core Scottish Government priority. The Population Health Framework recognises that more is needed to reduce the harms associated with health-harming products.

The use of novel nicotine and smoking products and their appeal to children and young people is highly concerning. Nicotine is a highly addictive substance, and these products should never be used by children, young people or non-smokers.

The 2026 Act amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to define nicotine products as:

• a device which is intended to enable nicotine to be delivered into the human body,
• an item which is intended to form part of such a device,
• nicotine, or any substance containing nicotine, which is intended to be delivered into the human body, or
• an item containing any of the above substances.

The following are not nicotine products: tobacco products, smoking related products, herbal smoking products (or any device intended to be used for the consumption of tobacco products or herbal smoking products), a vaping product, a medicinal product or a medical device.

An example of a nicotine product are nicotine pouches. Oral nicotine pouches (ONPs) are small, pre‑portioned pouches placed between the gum and lip to deliver nicotine through the oral mucosa. They are similar in appearance and use to traditional snus (a form of smokeless tobacco), but do not contain tobacco leaf. Instead, they contain either synthetic or tobacco‑derived nicotine formulated into a white granular powder or plant‑fibre‑based substrate. These products are available in a range of flavours and nicotine strengths. Whilst only a small percentage (3%) of 11–17-year-olds in Scotland reported ever using nicotine pouches in 2024 and 2025 (ASH Smokefree GB Youth Survey), Scottish Government are determined that this number does not increase and are taking steps to limit their appeal and support enforcement.

Herbal smoking products are products consisting wholly or partly of vegetable matter and intended to be smoked, but they do not contain tobacco. While herbal smoking products do not contain nicotine or tobacco, they still release cancer-causing chemicals, tar and carbon monoxide, similar to a tobacco cigarette. Scottish Government do not have statistics available on prevalence of herbal smoking products.

The Tobacco and Vaping Framework, launched in November 2023, sets out Scottish Government’s roadmap to 2034 for a Tobacco Free Scotland. The framework highlights the importance of being responsive to novel nicotine and smoking products. The 2026 Act is a key strand of the policy approach to reducing youth access to these products.

The 2026 Act introduces a range of restrictions (including age of sale, advertising, free distribution and retailer register requirements) for these products. This BRIA concerns regulations required to commence the provisions regarding the extension of the retailer register which will extend Chapter 2 of Part 1 of the 2010 Act to cover herbal smoking products and nicotine products.

Regulations are required to commence and operationalise the expanded retailer register provisions in Scotland. This action is necessary to support enforcement, reduce youth access, prevent future growth in use of these products, and ensure this policy approach remains effective and responsive to emerging products.

Purpose/ aim of action and desired effect

In Scotland, the 2026 Act will make nicotine product retailers and herbal smoking product retailers subject to the existing retail register requirements. At present, there is no comprehensive mechanism to identify where these products are sold.

While many tobacco and vape retailers also sell nicotine and herbal smoking products, there is no requirement to declare this on the current Tobacco and Vape Register. In addition, some retailers may sell only these products, including independent shops, pop‑up kiosks and pharmacies.

The Tobacco and Vapes Act 2026 (Commencement No. 1, Transitional and Saving Provisions) (Scotland) Regulations 2026 will commence provisions in the 2026 Act extending the retailer register in Chapter 2 of Part 1 of the 2010 Act. This mandates that any retailer selling nicotine products and/or herbal smoking products must register in the same way as retailers selling tobacco and vaping products are already required to do.

The banning order provisions in Chapter 2 will also be extended to cover herbal smoking product businesses and nicotine product businesses meaning that, in certain circumstances, the council will be able to apply to the sheriff for an order banning a person from carrying on a registrable business from premises within the council’s area.

As new regulatory controls on nicotine products and herbal smoking products are introduced through the 2026 Act, enforcement authorities will require the ability to identify retailers selling these products. The extended registration requirement will enable enforcement bodies to:

• identify where products are sold;
• provide advice and guidance to support compliance; and
• monitor activity and take enforcement action where breaches occur.

Once the relevant amendments are commenced, the Scottish Ministers must keep a register of persons carrying on one or more of the “registrable businesses”. The registrable businesses are:

• a tobacco business;
• an herbal smoking business;
• a vaping product business; and
• a nicotine business

Once all of the relevant provisions in the 2026 Act are commenced, every person who sells any of the relevant products by retail must declare this to Scottish Ministers. To support implementation, the duty of Scottish Ministers to keep a register of persons carrying on a nicotine product business and/or a herbal smoking product business will commence six months after Royal Assent (29 October 2026). This will coincide with the majority of provisions in Part 2 of the 2026 Act, including provisions extending the age of sale restrictions to herbal smoking products and nicotine products.

The offence of being an unregistered person who carries on a nicotine product business/herbal smoking product business (which is an amendment to section 20(1) of the 2010 Act to cover all “registrable” businesses) and the offence of carrying on a nicotine product business/herbal smoking product business at premises other than those noted in a person’s entry in the Register at which the person carries on that kind of registrable business (which is an amendment to section 20(2) of the 2010 Act to cover all “registrable” businesses) will be commenced 12 months after Royal Assent (29 April 2027). This means that penalties for those offences will not come into force until 6 months later, providing business with time to register before the penalties for non-compliance come into force.

This impact assessment considers the decision to commence the regulations on this basis and the timing of the commencement of different provisions.

Options (considered so far/ still open)

The full impact assessment for the 2026 Act, which considers the policy options underlying the Act can be found here: Impact Assessment template.

This impact assessment considers The Tobacco and Vapes Act 2026 (Commencement No. 1, Transitional and Saving Provisions) (Scotland) Regulations 2026. These will commence relevant provisions in the 2026 Act to extend Chapter 2 of Part 1 of the 2010 Act, so that retailers selling herbal smoking products and nicotine products are subject to the same registration requirements as retailers who sell tobacco and vaping products, with the aim of reducing youth access to these products.

A number of decisions have also been made on related saving and transitional provisions, to establish how applications and banning orders should be treated when transitioning between the old scheme and the new scheme and these have been provided to enable a smooth transition for everyone who might be affected: Trading Standards, the Courts and businesses.

Any option which involved commencing any of these provisions less than 6 months after Royal Assent was immediately discounted because the amendments are drafted in such a way to come into force after other amendments in the 2026 Act, which come into force 6 months after Royal Assent (the amendments in schedule 8 of the 2026 Act which contains provision for the purposes of aligning the definition of “vaping product” in the 2010 Act with the definition used for the rest of the 2026 Act).

On the timing of the commencement of these measures, the following options were considered.

Summary of Options:

In these options when the document refers to “Commencement of Extension to the Register” this refers to all of the amendments which will be made by section 68 and schedule 9 of the 2026 Act and which will extend Chapter 2 of Part 1 of The tobacco and Primary Medical Services (Scotland) Act 2010 (“the 2010 Act”) (Register of tobacco and vaping product retailers) to retailers selling herbal smoking products and nicotine products.

The exception is the amendments which will be made by paragraph 15(a), (b) and (d) of schedule 9 which have referred to as “the registration offences”. Paragraph 15(a) and 15(b) of Schedule 9 will amend the offences in section 20(1) and 20(2) and (2A) of the 2010 Act so that the offence of being unregistered and the offence of carrying on a relevant business at premises other than those noted in the person’s entry in the Register both apply to nicotine product businesses and herbal smoking product businesses in the same way that they apply to tobacco businesses and vaping product businesses. Paragraph 15(d) will make an amendment to the penalty provision in section 20(6) in consequence of this.

Option 1 - Commence amendments relating to both the extension of the register and registration offences 6 months after Royal Assent.

This would require all businesses captured by the legislation to register on the day of commencement – 29 October 2026. There would be no grace period for businesses and all registrations would need to be completed on the 29 October 2026. There would be no period to allow enforcement authorities or businesses to familiarise themselves with legislation or sufficient time to comply with their responsibilities regarding registration, to avoid committing a criminal offence.

In addition, this does not provide a suitable period to stagger registrations on the platform that holds the register. It could be technically complex and high risk to require all registrable businesses to register at the same time, including severely limiting the Tobacco policy team’s ability to address issues retailers may have over registration.

Option 2 [Recommended] - Commence amendments relating to the extension of the register 6 months after Royal Assent. Commence amendments for offences relating to registration 6 months later (12 months after Royal Assent).

The purpose of commencing amendments to the registration offences later is to provide a 6 month period of grace for retailers before those offences come into force. This would allow sufficient familiarisation time and time to register their businesses.

Scottish Government think that a 6 month grace period is sufficient because the registration process itself is straightforward and has been in place for a number of years. It is supported by appropriate guidance, and if retailers have issues with registration, they are able to contact the Tobacco policy team for support or the technical platform leads directly.

Option 3 - Commence all provisions relating to the extension of the register 12 months after Royal Assent, including registration offence amendments.

Option 3 would operate in a similar manner to option 1 but would allow 12 months before the changes to the register were implemented. As with option 1 commencing the changes to the register at the same time as commencing the enforcement would not give businesses a grace period in which to register their businesses. As per option 1 they would need to register immediately following commencement in order to avoid committing criminal offences and it is considered that this would have a negative impact on businesses.

In addition retail stakeholders have called for an accelerated implementation period in order to combat illicit products and non-compliance. A 12 month implementation period would not meet this request.

Option 4 - Commence provisions relating to the extension of the register 12 months after Royal Assent. Commence registration offence provisions 18 months after Royal Assent

Option 4 is similar to option 2 but provides a longer period of time before the changes to the register are commenced, as well as a further transition period for businesses before offences apply. However, this extended implementation period would delay achieving the desired public health effects that the policy is aiming for. In addition, retail stakeholders have called for an accelerated implementation period in-order to combat illicit products and non-compliance, which would not be addressed by this implementation period.

Sectors/ Groups affected

The full impact assessment for the 2026 Act (which can be found here: Impact Assessment template) considers the sectors and groups affected by the wider policies implemented by the Act, including the smoke free generation policy and the prohibition of advertising for vaping and nicotine products.

In terms of the commencement of the extension of the register for mandatory registration of herbal smoking and nicotine products, the following sectors/groups will be affected:

• Businesses that sell herbal smoking and nicotine products.
• Local Authorities.

The changes to the register will impact a range of businesses across Scotland selling nicotine products and herbal smoking products who will need to be registered when the relevant provisions are commenced. However, it is expected that the majority of the businesses who sell these products will also sell tobacco and vaping products, and so should already be registered and familiar with the processes involved. They will need to submit a new application if they also operate an herbal smoking business or a nicotine product business.

The Tobacco and Vapes Register (as of 11 June 2026) had a total of 11,762 registrations for retailers who sell tobacco and/or vapes, based across the whole of Scotland. This includes traditional retailers in fixed structures, retailers in mobile vehicles, and moveable structures. The majority of retailers are based in traditional retail fixed structures.

The impact on these businesses will therefore be minimal. Although they will have to register to continue selling nicotine products and/or herbal smoking products, they will already be familiar with the register and their existing obligations in relation to tobacco and vapes.

There is no publicly available data on the number of retailers in Scotland that sell herbal smoking or nicotine products but not tobacco or vape products, meaning it is not possible to estimate the number of retailers that will need to submit a new registration for the first time.

For the businesses who only sell nicotine products and/or herbal smoking products, there will be an impact in terms of familiarisation and compliance with the new rules. However, Scottish Government do not expect this to be a significant impact, and guidance will be provided to support the transition.

The time given before the regulations come into force, and the extended period for the commencement of the registration offence amendments, will support this transition.