Tobacco and Related Products (Amendment) (Northern Ireland) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Tobacco and Related Products (Amendment) (Northern Ireland) Regulations 2023.

My Lords, the purpose of this instrument is to implement the EU Commission delegated directive (EU) 2022/2100 of 29 June 2022, which amends directive 2014/40/EU—the tobacco products directive—to withdraw certain exemptions in respect of heated tobacco products placed on the Northern Ireland market.

The instrument amends the Tobacco and Related Products Regulations 2016—the TRPR—in relation to Northern Ireland. The regulations will apply to producers, suppliers, retailers and wholesalers that produce or supply heated tobacco products for consumption in Northern Ireland. Subject to the regulations being approved by Parliament, they are due to come into force on 23 October 2023.

The regulations apply to Northern Ireland only and are made for the purposes of dealing with matters arising from the Windsor Framework. The SI implements a change so that, from 23 October 2023, heated tobacco products can no longer have a characterising flavour, such as menthol, vanilla and fruit flavours. This is not a ban on heated tobacco, but it will limit the flavours available. A characterising flavour ban is already in place for cigarettes and hand-rolling tobacco in the TRPR.

We do not need to make changes in light of the Commission delegated directive’s requirement for heated tobacco products to contain health warnings and information messages if they combust. If heated tobacco products that involve a combustion process were placed on the UK market, they would be regulated as tobacco products for smoking and subject to existing regulations in the TRPR that require these products to contain a combined health warning and information message. There are currently no heated tobacco products on the GB or Northern Ireland markets that involve a combustion process and, as such, they are subject to the labelling requirements applicable to smokeless tobacco products.

My Lords, I thank the Minister for his presentation of the statutory instrument. I have to declare an interest: I am a member of the Secondary Legislation Scrutiny Committee, and we discussed this SI. There was no dissent from it and there was general support, but we drew it to the attention of your Lordships’ House.

I am a supporter of the Windsor Framework, and any shilly-shallying around it can lead to uncertainty in Northern Ireland. It is important that we and the people of Northern Ireland, particularly businesses, can avail themselves of the economic opportunities in relation to access to the UK internal market and the EU single market.

Notwithstanding that, I have certain questions. First, I note that an

“impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen”.

I am a non-smoker and I do not use vapes. However, I see a heck of a lot of young people vaping. They use fruit flavours in particular. As a consequence of this legislation, from 23 October, they will no longer be able to use fruit-flavoured vapes. In that respect, although consultation will have taken place with district councils, what consultation took place in advance between district councils, the Department of Health and the Department of Health in Northern Ireland, along with schools, youth groups and youth societies because this will affect young people?

I believe that, although it may be better to use these particular vapes than tobacco products, there is a health risk with them none the less. Has the Minister considered the Committee on Toxicity’s report, which stated that the evidence is limited that it is plausible that these devices are less harmful than conventional cigarettes but that they are not risk-free? It would benefit smokers to quit smoking completely rather than to switch to heated tobacco products, because such products will still be available in Northern Ireland.

I am not seeking to be the Gestapo in relation to these matters but there is one final, serious point that I want to make. During our troubled history in Northern Ireland, paramilitary organisations used the black market to import and export cigarettes whenever Northern Ireland was a manufacturer of such. My fear is that, if certain products are prevented, certain paramilitary organisations will try to use that method to import flavoured varieties of vapes. What mitigation measures have been put in place with HMRC, the Treasury and Customs, working with district councils to address this issue and ensure that this level of crime is both detected and, I hope, eradicated? Will the Organised Crime Task Force be involved in this matter? I am not trying to create a sense of fear in relation to this; I am just presenting a political reality in Northern Ireland. After what has happened in the past, how can this be addressed because prevention often leads to underground activity?

I will leave those questions with the Minister. I look forward to his response.

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie. Like her, I declare that I am neither a smoker nor a user of vapes.

Despite their technical-sounding name, these regulations are important in their own terms for what they do in this area. However, they are also important in the wider political sense because they are a manifestation of the direct application of European Union law to Northern Ireland as opposed to the decision being made by anyone who has been elected in Northern Ireland, either in the Stormont Assembly or in this Parliament. It is therefore a good illustration, whatever your views may be on the subject, of the issue that is at the heart of the problem now facing Northern Ireland politically and that is causing so many problems in getting the institutions back up and running.

I would have thought that an issue such as this would be something that elected representatives of the people of Northern Ireland would wish to consult on, discuss, debate, come to a conclusion on and eventually pass, either at Stormont or at Westminster. However, under the Windsor Framework, which is a version of the original protocol, they are not allowed to do that. This decision, as the papers make clear, is a decision that has been made by the European Union.

I want to explore with the Minister—if he cannot answer these questions today, I would obviously be happy to receive a letter setting out some of the answers in detail—first, what consultation was carried out by the Government, in bringing forward these regulations to implement European Union laws, with anyone in the Department of Health or any other department in the Northern Ireland Executive. This instrument says that it applies changes “to Northern Ireland only”. What is the position in Great Britain and in the rest of the United Kingdom? The committee on which the noble Baroness, Lady Ritchie, serves and to which she referred in this debate references the general restrictions that apply to the market in Great Britain for vaping machines and products but there is nothing there about the actual issue of characterising flavourings, which is the subject of this piece of legislation for Northern Ireland. What consultations have been carried out in Great Britain thus far on whether to go down the same route as the European Union? If it is decided that the rest of Great Britain will not go down that route, what implications does that have for regulatory divergence with the rest of the United Kingdom—namely, Northern Ireland?

My Lords, it does rather feel like the old days to be transposing EU directives into UK law—the good old days, from my political perspective—but I certainly recognise some of the political challenge that the noble Lord, Lord Dodds, has outlined around the agreement that the former Prime Minister, Boris Johnson, signed up to, as confirmed by the current Prime Minister. This is one of the anomalous situations that they have created made real for us because we have to transpose certain elements of EU law specifically into regulations that have an impact on Northern Ireland but not on Great Britain.

The substance of the change seems to us to be entirely sensible from a health perspective. My questions relate to similar areas to those raised by the noble Lord, Lord Dodds, around the relationship with Great Britain, but they come from perhaps a slightly different perspective.

My primary question as a health spokesperson is: why not Great Britain? If we are seeking to limit flavoured heated tobacco products today, why are we not limiting them across the entirety of the United Kingdom? Why are we doing it for Northern Ireland only? I have a concern that there may be a “not invented here” syndrome going on. While we have to implement this for Northern Ireland, we have a choice in Great Britain; there is nothing to stop us imposing similar limitations on Great Britain. I would be concerned if the position of His Majesty’s Government is almost that we are aiming to be awkward and are somehow deliberately misaligning with something that has a public health benefit.

The note that we were given carefully explained how the European Commission has done some work and released a report on 15 June 2022 giving its rationale for why it needed to make this change. I would be interested to hear from the Minister what assessment his department has made of that report because one version is that the European Commission has done the hard work for us. If it has spent time looking at the potential harms done by allowing the continued sale of flavoured heated tobacco products, presumably that evidence is also useful for us and could allow us to shortcut our way to a similar policy conclusion. It is important that we understand, both for this and for other directives, what position the Department of Health and Social Care is taking in the United Kingdom in looking at what the European Commission is doing and learning from it.

Similar to the question from the noble Lord, Lord Dodds, it would be helpful to understand from the Minister what consideration the department gave to whether this should be for Northern Ireland only or an amendment should be made for the United Kingdom. As I understand it, there is nothing to stop the Government doing so. It certainly seems to me that it might have been a similar amount of work to bring forward a change to all the tobacco product regulations at the same time as it would have been to bring it forward for just Northern Ireland. If we are to reach the same conclusion, we will back in this Room in a few months having the same debate about a similar change to the regulations for Great Britain. Why not do that all together and make a positive health change in one fell swoop rather than in two different stages?

I have a final couple of points. One is on the issue of vapes, which the noble Baroness, Lady Ritchie, raised. I understand that these particular regulations do not deal with vapes but with those little cartridge-based products, as opposed to liquid-based products, which do not count as heated tobacco. However, there are similar, perhaps even stronger, arguments as to why we should limit the availability of flavoured vaping products. This is another opportunity to ask the Minister what the Government are doing on that because the evidence that we all see as we go around is that people are deliberately marketing vaping products to children and young people and they are being taken up in huge numbers.

Here we are, spending time debating a change to the rules to deal with this very minor segment of the market when it seems to me that we are being very slow to find the time—or perhaps the will—to deal with this much larger segment of the market, which presents a clear and present danger to teenagers in particular. People are out on Oxford Street today pushing raspberry-flavoured and bubblegum-flavoured vaping products. What is that all about and why are we not finding the time to deal with it? That is a legitimate question on the back of this debate on flavoured heated tobacco products.