Tobacco and Vapes Bill

Public Bill Committee, 23 January 2025.

Clause 99 - Testing

Roger Gale (Conservative, Herne Bay and Sandwich)

With this it will be convenient to discuss clause 100 stand part.

I apologise for my voice—it is probably divine intervention trying to stop me speaking in the Climate and Nature Bill tomorrow.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Clause 99 relates to testing. The clause allows the Secretary of State powers so they may by regulation require a person specified in the regulations, such as manufacturers, importers or other relevant parties, to carry out tests on the products to ensure they comply with any of the registered requirements. Testing is a sensible thing to be able to do, subject to making provision for far more new tests to be carried out, because it is important that testing is done properly.

Some examples of where the Secretary of State has given flexibility include the timing and methodology; where, when and how the tests are to be done; who is authorised to carry out testing on behalf of the specified person, so whether a manufacturer or a third party can undertake testing themselves; how the products are to be tested, for example if all products are to be tested or just a sample; whether samples are required to be provided to a third party for testing; and whether there will be any charges for tests, which could be set based on the costs involved or other regulations.

Subsection (3) states that charges will apply and subsection (2)(e) allows regulations to specify how those charges will be used, including provision on whether the fees collected can be kept by the authority responsible for testing or whether they should be paid into a consolidated fund via the Government’s general revenue. Subsection (4) states that any regulations under this section are subject to the affirmative resolution procedure, so voted for in Committee.

I have a few points to raise. The clause gives the Secretary of State the power to specify a person who would be required to carry out the test. It is important to clarify who that person might be, and whether it refers to manufacturers, importers, independent testing bodies or other stakeholders. As I have already mentioned, it would not be reasonable to get big tobacco companies to mark their own homework, so how will the Secretary of State determine who is specified for those tasks?

Additionally, once the product is tested and deemed compliant, will there be any follow up or long-term monitoring of product safety and health impact over time? There is post-market surveillance for medical devices, but what mechanisms will be in place to monitor the ongoing compliance with consumer products post market? At the moment, it seems that all a company needs to do is say what is in a product, be believed and be registered with the Medicines and Healthcare products Regulatory Agency. Currently, that happens simply on a company’s word. I am sure that in most cases—perhaps almost all—the company’s information is fair and true, but, in some cases, as has already been shown, that has not been the case, so it is important to consider that issue.

Furthermore, the phrase

“selection of products for testing”

in subsection (2)(c) is vague and could be exploited. The provision could allow a situation where only certain products are selected for testing, potentially skewing the results if products likely to fail are excluded from the testing process. If it is not properly regulated, that could result in cherry-picking, where only the “cleanest products” are tested to ensure they meet regulatory requirements.

There will clearly be some cost to industry for testing. Does the Minister have any further information on how much those costs will be? Based on the impact assessment, costs for the testing requirements and the testing of individual components could be quite high, so will the Minister provide more information about that?

Gregory Stafford (Conservative, Farnham and Bordon)

It is a pleasure to serve under your chairmanship once again, Sir Roger. I am sure the shadow Minister can come in after me if she wishes to opine on clause 100.

Clause 99 grants the Secretary of State the authority to introduce and amend regulations concerning tobacco and vaping products. The provision ensures flexibility and responsiveness in the ever-evolving landscape of tobacco control that we have talked about previously. It is vital to ensure that the UK’s tobacco and vape regulations remain robust and up to date, especially given the increasing prevalence of vaping among young people and the emergence of new tobacco alternatives.

There are a number of real positives about clause 99. First, it provides adaptability to emerging public health concerns. The regulatory flexibility allows the Secretary of State and his Ministers to swiftly address any new health risks. A 2021 study by Action on Smoking and Health UK found that youth vaping rates had risen from 4% in 2020 to 7% in 2021, so, by ensuring that new products can be regulated promptly, clause 99 provides a mechanism for responding to those emerging trends.

The clause aligns us with international partners and best practices, and with global tobacco control standards, such as the World Health Organisation’s framework convention on tobacco control. Nations such as Canada and Australia have successfully implemented similar regulatory powers to adapt quickly to the new threats posed by novel tobacco products, demonstrating that adaptable regulations lead to better public health outcomes.

The final positive of the clause is the stronger consumer protections. Without the ability to introduce rapid regulatory amendments, harmful substances may enter the UK market. As I have mentioned, in 2019 illicit vaping products containing vitamin E acetate led to serious lung illnesses, noted in the US. By strengthening the regulatory framework, Government can proactively prevent such issues.

I have a couple of potential challenges. First, as I mentioned, there is always potential for malign industry influence. The tobacco and vaping industries have a history of lobbying against stringent regulations. Indeed, since this Bill Committee has been sitting over the past week or so, my inbox has filled with such representations. The UK must ensure transparency and public health prioritisation in all its regulatory decisions.

Secondly, in balancing the public health and economic impacts, we have to be careful about over-regulation possibly stifling innovation within the vaping industry, which some argue plays a role in harm reduction by helping smokers quit traditional cigarettes. Opposition Members have made that point a number of times: we want to ensure that the regulations are effective and robust, but, where vaping is being used as a smoking cessation tool, the regulations must be flexible enough to allow novel products to come on to the market, which could in future help smokers even further.

Clause 100 clarifies the scope and the applicability of the Bill, which means that it ensures coherence of enforcement. A clear definition of which products and businesses fall under the new rules will prevent, I think, ambiguity in their implementation. The positives of this clause are that, where there is clear application, the reduced ambiguity in interpretation and enforcement means that businesses will understand their obligations and consumers will know their rights. That is absolutely essential.

For example, the smoke-free public places legislation that came into effect in 2007 clearly benefited from the defined scope, which reduced any legal disputes. By defining the reach of the Bill, clause 100 allows authorities to target enforcement promptly. Without clear application provisions, which we see in this clause, regulatory loopholes could be exploited. The clause closes them.

Likewise, tobacco companies may attempt to bypass our regulations by selling non-compliant products online from overseas suppliers. Again, the strong application in clause 100 ensures that the law extends to online and cross-border sales. However, perhaps the Minister will outline how he understands that that will be enforced.

That brings me to my real concern, or I suppose question, about clause 100. The risk of online sales makes enforcement much more complex than it would have done had we introduced such a Bill 10, 15 or 20 years ago. How will the UK work with other international bodies to curb illicit cross-border sales, especially when things are sold online? Also—I have mentioned this point before, but I will continue to do so—when small retailers are struggling with compliance, there has to be some form of education and support for them from Government so that they can comply. The majority of the vaping industry, where we have decided it is legal, obviously needs a clear set of guidelines from the Department and the regulatory bodies to comply with the regulations.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Clause 100 concerns product safety, which is important. Even when a product is not safe, it should still be as safe as it can be and should contain only those things that are expected. When Lincolnshire police took a sample of vape devices from children from a school in my constituency, they found that many of the vapes contained dangerous ingredients that should not have been in there, including, in one case, I believe, an ingredient banned in the UK for many decades.

Clause 100 is important: the Minister must ensure that items on the market are safe. I come back to the evidence from Dr Laura Squire from the MHRA. She said that licensing a medical product does not mean that it is safe, and that these vapes are not medical products either. I am grateful to the Minister for saying in the last session that he is looking for a new home for the licensing and registration process for vapes and vaping products, because “MHRA-registered” suggests to the consumer that those things are in some way safer and more fully tested than they have been.

Clause 100 suggests very sensible regulation, but it gives the Minister the power to do that without significant oversight, even though the affirmative procedure applies. Since clause 90, all the Bill has done is to confer powers on the Secretary of State to regulate without actually providing a huge amount of detail on the Secretary of State’s intent. One never knows what the intent of a future Secretary of State could be in this regard.

Will the Minister comment on why regulation will be in secondary legislation rather than being detailed in the Bill? I understand the need to be agile and to think quickly to try to stay ahead of an industry that will try to adapt to addict more people to nicotine in other forms, but it would have been possible for the Minister to put much of that detail in the Bill, and to have taken a power in a final clause to amend parts of those regulations by statutory instrument. Most of the intent and most of the regulation would then have been known very quickly, but could be altered and adapted later. Why has the Minister taken the approach that he has, rather than a more up-front approach?

Clause 100(1)(a) requires

“producers or importers to have processes in place”.

Again, this is an important point. Most of these products seem to be made overseas, where of course the UK courts do not have jurisdiction. It is at the point of import, and with regards to the person who is importing, that we may need to be more responsible than with a producer where the items are made overseas.

I also urge the Minister, echoing the point made by my hon. Friend the Member for Farnham and Bordon, to consider online sales. We see already that some regulations that are in place for the real world rather than the virtual world create loopholes for regulations to be circumvented. Clearly, public safety has to be the Government’s first priority. The testing in clause 99 and the product safety regulations in clause 100 are a welcome initiative, but clearly the devil will be in the detail and the detail is not available to us today.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I am sorry that your croakiness is getting the better of you, Sir Roger, but hopefully you will be on fine form tomorrow for the private Member’s Bills—I am not sure whether the Whips on either side of the House are praying for that.

On clauses 99 and 100, I will go through the questions posed by the shadow Minister and the hon. Member for Farnham and Bordon. It is the responsibility of trading standards to test products if they believe a product contains illegal substances or could contain too much nicotine. Trading standards currently test products on an ad-hoc basis, which is contingent on funding. We aim to establish a testing regime to regularly check that products on the shelves are what they say they are. That will support overall enforcement, will ensure that registered products are safe for consumers and will allow retailers, in both brick-and-mortar establishments and online, to have greater clarity about and confidence in the products that they are able to stock to sale.

It is really important to consider online sales as a growing area. These measures have to be taken within the wider context of clauses and measures that we have already debated, in that any product for sale in the United Kingdom, whether in a shop or online, will have to be registered, and any retailer, whether a shop or online, will have to have the appropriate licences in place. There are clear and substantial penalties for breaching those licensing arrangements, and there are real and substantial consequences for selling products that are not in accordance with the descriptions on the registration of those products. When all of that is put into context, and testing is added in, we believe that this will be a robust regime.

We are taking these new powers because, unlike with cigarettes, there is no current testing regime for vapes, nicotine products, heated tobacco products, or herbal products. Testing nicotine vapes is currently carried out on a pretty ad hoc basis—subject to resource—local authority to local authority. That is not the consistent approach that we want to see. We have already seen—indeed the shadow Minister has referred to this happening in Lincolnshire—that some notified products contain heavy metals and dangerous substances, increasing the risk of harm to users. These powers will allow us to set up the new testing regime for vapes, nicotine products and tobacco products to ensure that they can be regularly tested to check that they are safe for consumers.

Powers in the Bill will allow a fee to be charged for the ongoing and continuous testing of products. As with other measures, the exact details of those fees will be subject to future consultation. On clause 100, it might be worth reminding the Committee that the current rules on product safety all come from the Tobacco and Related Products Regulations 2016, which set out the current requirements for producers of nicotine vapes to establish and maintain a system about all the suspected adverse effects on human health from a product.

The Government think we need the new product safety powers because vapes and nicotine products contain harmful ingredients, as we have already ascertained in the course of our deliberations. Especially if products are not delivered safely, as per our regulations, and if they pose a risk to users, producers must be able to take swift action by letting suppliers and retailers know when a product contains faulty or illicit elements. It is vital, then, that producers have processes in place to collect information on the effect of their product on human health, as well as a system to let producers and agencies know if a risk has been identified by them or by the enforcement agencies. This will positively impact enforcement, with a more robust system for monitoring and tracking non-compliant products.

We have heard from the hon. Member for Farnham and Bordon about burdens on business. We are very attuned to those concerns, but we do believe that this is an appropriate balance, a necessary inclusion that bolsters safety regulations, and that much of it is already in place for nicotine vapes anyway. There will be an implementation period for businesses before any new regulations come into force, the length of which will be considered as part of the consultation process.

On the point about international co-operation, because for some of these items it is a global marketplace and with online trading, we have to consider that some of these products may be coming from outside the United Kingdom, how will the UK work with international bodies? Products will be registered—as I have already said—in the UK, which will help to reduce illicit sales. We are already a committed member of the framework convention on tobacco control. United Kingdom enforcement authorities regularly speak to their international counterpart bodies and other states to deal with these challenges. Of course, His Majesty’s Revenue and Customs and Border Force already co-operate on illicit tobacco and vapes and a whole range of other things with our international partners anyway. The powers in the Bill will bolster that co-operation.

Why have we chosen an overly regulatory approach? Why have we been so permissive in granting powers to the Secretary of State and Ministers in Scotland, Wales and Northern Ireland, rather than placing things on the face of the Bill? In part, the shadow Minister answered her own questions: it is partly to keep up with industry and to be one step ahead of any moves that may happen. However, the bit she omitted is that the Bill covers four nations—four jurisdictions—and if we were overly prescriptive in respect of the desires of England, it would not fit the purposes of Wales, Scotland and Northern Ireland. Working with the three devolved Administrations, the Government are content that, by granting Ministers powers to pursue consultations and regulations that appertain to the desires of those parts of the United Kingdom, we can get a better, stronger Bill.

Clause 101 - Matters dealt with by 2016 regulations

Roger Gale (Conservative, Herne Bay and Sandwich)

With this it will be convenient to discuss clause 102 stand part.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Clauses 101 and 102 deal with the treatment of, and matters dealt with by, the 2016 tobacco regulations. Again, they provide the Secretary of State with powers to make regulations. Whether or not that will be done well, we are not really sure at this stage.

I understand the point the Minister made in response to the last debate, and it is of course true that regulations can be different in each part of the United Kingdom. In his discussions with Ministers in Wales, Scotland and Northern Ireland, they may have wished to proceed with regulations after the Bill, rather than to put them on the face of the Bill. However, that does not explain why the Minister has chosen to do the same, and I would be grateful if he could explain his choice to make regulations after the Bill, rather than to put them on the face of the Bill, with the power to modify. I ask particularly because we are now into, I think, the 12th consecutive clause that provides powers to regulate and that offers detail only on what any regulations might or might not say, rather than necessarily on what they will say.

In that vein, clause 101 outlines provisions to allow the Secretary of State to make regulations similar to, or corresponding with, the Tobacco and Related Products Regulations 2016. That is to be done under a new regulatory framework, which would seem to be designed to cover gaps that may exist in the powers under those regulations. Subsection (1) says:

“The Secretary of State may by regulations make provision…that is similar to or that corresponds to any provision of the Tobacco and Related Products Regulations 2016…other than Part 7 of those Regulations”.

Part 7 of those regulations deals with electronic cigarette advertising. The Minister may feel that later parts of the Bill will deal adequately with this point, but I would be grateful if he could explain why that part has been taken out. That is not instinctive, because other aspects of those regulations could be too. What is the reason for excluding that part? Otherwise, I have no particular points to make about clauses 101 and 102.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

Clause 101 allows the Secretary of State to make regulations similar to any provisions set out in the Tobacco and Related Products Regulations 2016 —the TRPR, which we discussed in our debate on the earlier clauses—thereby amending them if needed.

In 2016, the TRPR implemented the 2014 EU tobacco products directive. The TRPR deals with the manufacture, presentation and sale of tobacco and related products, including herbal products for smoking, nicotine, vapes and refill containers, as well as smokeless and novel tobacco products. However, it does not regulate all products. As we know, new nicotine products such as nicotine pouches have emerged on the market—we discussed such things in our earlier deliberations—and we currently have no powers to change the regulations. We are also limited in what we can do within the existing powers—for example, on vape packaging.

The Bill builds on the TRPR and allows us to go much further, with new powers on, for instance, packaging and flavour requirements, and new registration powers that could be extended to non-nicotine vapes, nicotine pouches, heated tobacco devices and cigarette papers. As we have ascertained, the tobacco and vaping industries are extremely innovative and have previously attempted to circumvent regulations and exploit loopholes. The clause helps to stop them doing that by allowing us to amend the TRPR if necessary.

Clause 102 enables regulations to be made under powers in part 5 of the Bill to amend provisions in the Tobacco and Related Products Regulations that are within scope of those powers. This is a technical provision because, as I said in the previous debate, we have limited powers to amend the TRPR. For instance, if we introduce new vape packaging requirements using powers in the Bill, the clause will allow us to amend the TRPR if necessary, so that the new packaging requirements fit with those imposed under the TRPR.

The shadow Minister raised issues relating to secondary legislation. The technical and detailed nature of many of the Bill’s requirements means that they are not suitable to be put on the face of the Bill. For example, we may need to amend those requirements in response to market changes. It is also necessary to include detail on the circumstances of when products must be recalled, which will change over time.

There is a broader point here: with all the regulations that we propose to bring before Parliament, we want to get the measures right. We have a statutory duty in the Bill to consult before bringing in regulations, which is in part why we are making the measures in the way that we are. Part 7 of the TRPR is excluded because those things will now be in part 6 of the Bill. I commend the clauses to the Committee.

Clause 105 - Sub-delegation

Roger Gale (Conservative, Herne Bay and Sandwich)

With this it will be convenient to discuss clauses 106 to 111 stand part.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Clause 105 states:

“Regulations under this Part may confer discretions.”

I confess that I do not understand what that means. I would be grateful for the Minister’s explanation.

Clause 106 is about the power to make provision binding on the Crown, which we have discussed at some length. My only point is on subsection (4), which clarifies that public servants are still accountable under the regulations. Some may have concerns about the enforcement of regulations within Government bodies. Could the Minister say anything further on that?

Clause 107 gives the Secretary of State power to make amendments to this legislation through regulations. It is quite a broad and flexible position: the Government can remove outdated laws that are inconsistent with new regulations established under the Bill and ensure that the regulatory framework can evolve. To some extent, that makes sense. Again, the Government seem to be keen to ensure that they can stay one step ahead of a very adaptable industry and try to protect the country from nicotine addiction. However, the clause is quite broad. I would be grateful if the Minister could further elaborate on his intent in it.

Clause 108 provides for the consequential removal of section 94 of the Children and Families Act 2014 because it is no longer needed. Clause 109 is about enforcement.

Clause 110 is about the consultation process. The requirement to consult before making regulations promotes transparency and accountability in the decision-making process and allows for adjustments and feedback from various groups, in the same way that line-by-line scrutiny of the Bill allows adjustment in line with discussion. It ensures that regulations are fair and based on a broad range of insights and evidence. However, I would be keen for the consultation not to be so long as to delay bringing in the regulations. As I have said before, much of the Bill hinges on the regulations the Government can provide. If the consultation processes are very long and drawn out, it could be a long time before any of these measures come into force to protect our children, in particular.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

Sub-delegation allows functions to be carried out by someone who is not named in the primary legislation. We believe that that is vital for flexible implementation of Government policy and to keep the wheels of Government turning. Sub-delegation is a long-accepted part of the legislative process, and having the ability to allow technical experts to undertake technical tasks, or to set out very detailed technical criteria in guidance instead of using parliamentary resource, will allow us to get on with implementing the measures in part 5 of the Bill.

The shadow Minister is right to be concerned about having safeguards to ensure that any sub-delegation of authority is not abused. Sub-delegation to persons must be set out in regulations. As I have previously said, there is also a statutory duty to consult on any regulations made under part 5. The regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.

On the wider consultation the shadow Minister referred to, the Government chose to include consultation clauses because we want valuable input from different stakeholders on our proposals before they are introduced. As is conventional with such clauses in primary legislation, the clause does not prescribe the specific people the Secretary of State must consult. That is to ensure that the Government can consult appropriate stakeholders, and the list may evolve over time.

UK-wide regulations made under part 5 might deal with devolved matters. The UK Government are therefore required to seek consent from the devolved Governments. My Department will continue to work closely with the devolved Governments on proposals for UK-wide regulation of products. I therefore commend the clauses to the Committee.

Clause 114 - Publishing advertisements

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I beg to move amendment 87, in clause 114, page 63, line 16, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Roger Gale (Conservative, Herne Bay and Sandwich)

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 88, in clause 115, page 64, line 3, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 115 stand part.

Amendment 89, in clause 116, page 64, line 30, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 116 stand part.

Amendment 90, in clause 117, page 65, line 18, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 117 stand part.

Amendment 91, in clause 118, page 66, line 3, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 118 stand part.

Amendment 92, in clause 119, page 67, line 8, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Amendment 93, in clause 119, page 67, line 24, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

Clause 119 stand part.

Before I call the shadow Minister to speak to amendment 87, I should indicate to her that, since the clauses each have amendments proposed to them, it would be helpful to know as we work through the debate whether she wishes to press them to a vote.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Amendment 87 is to clause 114. This group of clauses represents a substantial part of the Bill, as it applies to advertising and sponsorship. Those became an issue as part of the Health and Social Care Committee review of vapes back in the last Parliament. They were also discussed during debate on the last iteration of the Bill last Easter. In fact, I tabled a fair number of amendments on the subject in the last Parliament.

Clause 114 creates an offence where a person, acting in the course of business, publishes an advertisement in the UK promoting certain regulated products such as tobacco, herbal smoking products, cigarette papers, vaping products and nicotine products. To commit the offence, the person must know, or have reason to suspect, that they are publishing advertisements for such products and that the advertisement will promote those items.

Subsection (2) outlines the penalty for this offence, which is up to two years in prison, a fine or both. For summary conviction, the penalties vary by jurisdiction, with different maximum prison terms in England and Wales, Scotland and Northern Ireland, but a fine may be imposed in all cases. The clause aims to regulate the advertising of tobacco and nicotine products by placing responsibility on businesses and individuals publishing such advertisements, to ensure they comply with the law.

I return to the question asked by my hon. Friend the Member for South Northamptonshire regarding use of the word “publish”, and I have in mind particularly the online environment. Could the Minister confirm who is the publisher of, for example, a TikTok video? Is it the individual who uploaded it, or is it TikTok itself?

I also have a question about the words “purpose” and “effect”. Are they too vague? Could they lead to overreach and confusion about what constitutes promotion? It is unclear whether an advertisement needs to explicitly promote a product or whether a more subtle influence will be sufficient. How broad does the Minister intend the interpretation of “purpose” and “effect” to be? Can an advertisement for a lifestyle product that features someone smoking or vaping in the imagery be considered as promoting a tobacco product, even if it is not the main focus?

Another issue arises from the clause’s reliance on subjective knowledge or suspicion. The clause states that a person commits an offence if they know or have reason to suspect that the advertisement has the purpose or effect or promoting the product. In cases where the individual involved in the publication of an advertisement did not have direct knowledge of, or did not suspect, the advertisement’s purpose, what level of proof is required to say that they “know” or “have reason to suspect”? For example, if an advertisement is published by the third-party platform or agency, perhaps online, can a person who did not directly control the advertisement’s creation still be held liable? This is really important when it comes to the online world, where the sheer volume of hosts may make it incredibly challenging for an online provider to look at every single post that is put up.

On advertising, the impact assessment provided by the Government says on page 101:

“Despite advertising restrictions existing for nicotine vapes in some settings including television, radio and through information society services, such as internet advertising or commercial email, evidence shows advertising is noticed more by young people, and this has increased in some settings in recent years. Additionally, despite being prohibited under TRPR, the ASA report social media is increasingly being used to advertise vapes to children.”

I note the differences between the devolved nations. Under the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016, Scotland has powers to go further on advertising and sponsorship—for example, powers to ban nicotine vape advertising in more settings than those in TRPR, to ban sponsorship agreements involving nicotine vapes, and to introduce regulations on brand sharing.

Paragraph 655 of the impact assessment says:

“CRUK estimate the annual cost of advertising for the sector in 2019 was £32m. Under this policy proposal, no advertising would be permitted so this previous cost would be saved by businesses, and partially offsetting their lost profits from reduced vape sales outlined in the monetised costs section.”

Paragraph 666 states:

“Similar to the monetised benefits above for vapes, businesses who currently fund advertising of nicotine products, herbal smoking products, and/or cigarette papers will save this money”.

Of course, advertising companies will need to find their revenue somewhere else. To me, it seems sensible to restrict the advertisement of these products, as I said before.

We must remember that young people are at the heart of this Bill, and the impact assessment also notes how susceptible young people are to advertising and why this clause is of particular relevance. Paragraph 499 highlights a survey conducted by Cancer Research showing that advertising is more noticed by young people. The survey results reveal that

“for all types of media analysed, apart from ‘email/SMS’, youth (16 to 19 years) noticed advertisements more than adults (18 years and older) in 2018 in England. The locations and media channels surveyed included: inside shops selling cigarettes; kiosks; web/social media; billboards/posters; newspapers/magazines; events/festivals; bars/pubs; and email/SMS. The largest difference in the two age groups was seen for 'billboards and posters’ with 31.4% of youth noticing marketing compared to 5.9% of adults.”

It also notes that

“youth (16 to 19 year olds) never users (who have never smoked or vaped) report higher noticing of vape advertising across all media types, apart from email/SMS compared to adult exclusive smokers”.

Action on Smoking and Health did a survey which found that

“more than half (55%) of 11 to 17-year-olds are aware of vape promotion in shops compared to 37% two years ago, while 15% see adverts on billboards, up from 12% two years ago.”

It is clear that advertising needs to be restricted.

Amendments 87 to 92 ask the Minister to consider how to ensure that people who are smokers understand the information that is available to help them quit. At the moment, a smoker might go into a doctor’s surgery or an antenatal clinic and see information on smoking being bad for them, which is appropriate. They may also see information on opportunities for nicotine replacement therapies, or even on vaping as an alternative. If the Minister is keen to ensure that people who are smokers can use vapes as an alternative, which is believed to potentially be better for them than continuing to smoke, how will they be given that information if the products cannot be advertised or promoted?

Tristan Osborne (Labour, Chatham and Aylesford)

The hon. Lady is eloquently articulating the necessity of controls around advertising. Does she share my concern about the risk of creating a loophole, whereby advertising could still happen if there were warning notes on adverts? The Bill seeks to reduce any type of loophole through which an advertiser might promote vaping—with words underneath that this is a smoking cessation device—in all settings. Does she also agree that the NHS is already able to articulate smoking cessation methods to patients, without the need for brand advertising?

Caroline Johnson (Conservative, Sleaford and North Hykeham)

The hon. Gentleman and I agree that we need to restrict the advertising of these products, because we do not want people, particularly young people and children, to start becoming addicted to nicotine. We agree on that. However, the Bill does not say an advert needs to promote a brand of nicotine product to be considered promotion or illegal under the Bill. It simply says “a nicotine product” or “a tobacco product”. I am keen to ensure the Minister clarifies that a doctor—I declare an interest as a doctor—or other health professional such as a pharmacist, like the hon. Member for North Somerset, will not find him or herself on the wrong side of the law for promoting vaping to individuals who smoke.

Sadik Al-Hassan (Labour, North Somerset)

It is a pleasure to serve under your chairmanship, Sir Roger. Current medicine regulations do not allow products to be advertised, but do not get in the way of smoking cessation clinics that currently take place at GP surgeries or pharmacies. The amendments the hon. Lady is proposing are, therefore, not needed. In fact, as my hon. Friend the Member for Chatham and Aylesford suggests, they could be used as a loophole for advertising by an industry that has been shown to be very successful at finding ways around legislation to increase market share and the numbers of smokers and vapers.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I thank the hon. Gentleman for his intervention. He comes to this debate with significant experience as a pharmacist himself. In bringing forward this amendment, it is not our intention to create a loophole. None of us wants to see children vaping or using nicotine products and developing an addiction they struggle to quit for the rest of their lives, with the associated costs to their health and their purses. However, I want the Minister to assure the Committee that he has considered the position of pharmacists and people who will legally be selling these products as a stop smoking device, perhaps in a hospital clinic or as a health professional, and made sure they will not be criminalised.

If we are to follow the chief medical officer’s advice—that vaping is not suitable for children but is suitable for adults who smoke as a harm reduction measure—and are to have that harm reduction process in place, which I believe is the Minister’s intention, it is important to consider how it will continue under these regulations. It is important to consider how pharmacists and other health professionals will be able to have discussions with their patients or clients in which they may wish to say, “Vaping is better for you,” and in so doing effectively promote the process—not a specific product, but the genre of products.

Alex Barros-Curtis (Labour, Cardiff West)

I thank the hon. Lady for giving way. I share the concerns expressed by the shadow Minister and by my hon. Friends about inadvertently creating a loophole, which we know the tobacco industry and others will drive a coach and horses through. I understand that part of the purpose of tabling the amendments is to get reassurance and clarity on certain aspects of the Bill, but on the point she was just making, is not the relevant provision subsection (1)(a), which refers to the person

“acting in the course of business”?

I am sure the Minister will clarify later, but perhaps the clause deals not with medical practitioners, pharmacists or doctors, but with media agencies or companies whose reason to exist is as a business for selling media, for publishing, for design. They do not operate cessation services and are not medical professionals or pharmacists themselves. In the realm of instructions to a service industry, whether it be a publisher or a business that designs advertisements, does this provision not simply make it crystal clear that, no caveats, they cannot do anything that is listed in the clause, because to do so will be an offence?

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I thank the hon. Gentleman for his intervention, but while pharmacists are highly trained clinicians with the capacity to prescribe a number of products in specific cases, they are also businesses. One’s local pharmacy is a business. Pharmacists sell products; they take money and make variable amounts of profit. A GP is a private entity, as the Minister will have learned during the national insurance contributions debate. Some GP practices are dispensing practices—the GP prescribes a product, which is dispensed from that practice. There are also private clinicians who provide GP surgery or stop smoking services at a price. I do not think that “in the course of business” necessarily provides the distinction that the hon. Member for Cardiff West hopes it does, but perhaps the Minister will provide further clarity.

It might be possible for the Minister to include an extremely narrowly drafted exemption for medical professionals providing advice in relation to stop smoking services and antenatal clinics giving advice to a current smoker, but perhaps he feels that those clinicians are covered already. One of the reasons for tabling the amendments is to have this debate and ensure that the clauses are carefully considered. All of us, on both sides of the Committee and the House, want to improve the health of the nation; we all want the Bill to improve the health of the nation. If the chief medical officer’s advice is that for adult smokers, vaping is better, those products need to be available to adult smokers.

I will move on to clause 115, which extends the offence in clause 114 of publishing advertisements to those who design the advertisements for regulated products, such as tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. As in clause 114, to commit the offence the person must know that the advert has the purpose of promoting one of the regulated products and that it will be published in the UK. The latter part is important. Again, I would like the Minister to ensure that there is no loophole for people to design things and say they are expecting them to be promoted abroad, and then they are promoted in the UK. That could be quite a significant loophole. Businesses could get around that with contract clauses, I suspect.

Subsection (2) establishes the penalties for the offence, which are a conviction on indictment of two years, a fine or both. Summary convictions carry varying penalties based on the jurisdiction in which the offence was committed. That does leave the situation where somebody who has committed the same offence in England, Scotland and Wales by publishing it across those jurisdictions could face several different fines in different jurisdictions for exactly the same advert.

Another question is about the designers. Individuals may be involved in the design of advertisements, but not have full control over the final content or how the advertisement will be published. Should liability be extended to individuals working on the design, or should it lie more squarely with the business or entity that ultimately publishes it? Is it fair to hold designers accountable for advertisements over which they have limited control? If they have only designed part of the advertisement, and it is not the bit in which the product is promoted, will they still be liable for the whole advertisement?

Clause 116 introduces another offence, this time for businesses that print advertisements that promote tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. They must know or have reason to suspect that they are printing an advertisement for those products—if they are printing it, they should know what they are printing—and that the advertisement will be published in the UK. Again, that will presumably have to be dealt with by contract law and involve some quite significant fines.

Clause 117 makes it an offence for persons acting in the course of business to distribute the advertisement. The question here is about physical and digital adverts. If a person is distributing the adverts on a sheet of paper, putting billboards on the wall or driving around a truck with a billboard on the back, it is clear that they know what they are doing and it is clear who is doing it. If adverts are appearing online or being distributed online, can the Minister specify who will be held responsible? Could somebody sharing an image that was produced by somebody else be a loophole?

Clause 118 expands the scope of responsibility to those who cause advertisements to be published and distributed within the UK. That seems sensible.

Clause 119 is the Government’s attempt to focus on the businesses that provide internet services. The provision is quite broad. Not all providers are UK-based, though. If they are not, how can they be held accountable? The provision could be seen to apply to various types of online platform, including social media search engines and website hosts. The key issue is whether a business that merely provides a platform or service for the publishing and distribution of advertisements can be held liable for content that is uploaded or shared by third parties, particularly where there is a huge volume.

The clause places responsibility on service providers that know or have reason to suspect that advertisements promoting tobacco or vaping products will be distributed through its services. That could apply to a wide range of internet service providers, from major global tech companies that are household names to the smaller, niche providers that operate in the UK market. I understand why that is important, but will the Minister say more about the person who is paying for the advertisement? The Bill covers publishing, designing and distributing an advert and providing it on the internet, but what about the individual paying for it? Ultimately, an advertisement rarely comes for free. How is that to be regarded?

The measures to reduce advertising for vapes and smoking products are sensible public health measures to reduce uptake. As we discussed in the debate on diet and obesity earlier this week, advertising clearly works. I recalled in that debate some of the adverts I remember from my childhood, such as “The red car and the blue car had a race” for Milky Way—I was pleased that the blue car won in that case, Sir Roger—and “A finger of fudge is just enough to give your kids a treat”. Those memories stick in the mind for many years. Advertising is effective and induces children to try products, so banning advertising for vaping and smoking products should be very beneficial, but I urge the Minister to consider whether he has covered the full scope of those who are responsible for adverts and at the same time excluded those who may play only a very small part in the advert and not realise that it will later become an advert for a smoking or vaping product. Has he considered carefully how a medical professional, clinician, pharmacist or similar person can still provide and openly discuss vaping products with their patients and clients, so that they can use them as a quit aid?

Sarah Bool (Conservative, South Northamptonshire)

It is a pleasure to serve under your chairmanship, Sir Roger. I just want to go through something again. Obviously, the purpose of part 6 of the Bill is to establish the rules about advertising, which I completely understand. It sets out that it is an offence for a person in the course of business to publish an advertisement, to promote products, to design advertisements, to print an advertisement, to distribute an advertisement, to cause publication, design, printing or distribution in the UK, or to provide an internet service by means of which an advertisement is published or distributed.

What I am really trying to understand, particularly when we are talking about the “person” who commits the offence, is whether there will be further regulations, which perhaps the Minister can confirm, about who that is. This provision is really designed for companies: we want to ensure that the companies are not breaching these rules about advertisements. When the Bill talks about a person, my concern is about who within the company is actually the relevant person. Is it one of the senior directors? Is it the person who was responsible for publishing the social media post? I just want to get a bit of clarity, because the punishments that come as a result, imprisonment or a fine, are obviously aimed at an individual. I do not know whether there has been further thought about how we can ensure that the companies themselves are responsible.

It is interesting to consider how this will ultimately play out in relation to the online world, because there are punishments and restrictions on those who provide the internet service. Obviously, that is aimed at the Instagrams, Facebooks and other corporations but, again, the offences are aimed at an individual. When it comes to a corporation as big as those, I am intrigued to see not only exactly who we think will be captured by the offence, but how that will work in relation to social media influencers, which I talked a lot about last week— I seem to be totally obsessed with Instagram. Perhaps I spend too much time on it. In relation to the offence of distributing an advert, all influencers obviously have to declare as part of their post, “This is an #ad,” to ensure that everyone knows that they are promoting a product, so it will be very clear if they are committing a breach, but if a fellow influencer shares a post from someone else—perhaps an influencer from outside the UK again—how do we ensure that they are caught? This is a niche point and a technicality, but I always look to a lawyer’s brain to see how they will find little flaws in the provision, and anything further that the Minister can say in that regard would be much appreciated.

Gregory Stafford (Conservative, Farnham and Bordon)

I do not intend to opine for very long on these clauses, because they have been covered amply by my hon. Friends. I caveat everything I am about to say with an absolute commitment: I continue to believe that this is the right Bill, that the clauses that we are discussing are the right clauses, that we should be trying to stop people smoking tobacco products and that people under 18 should not have any access to vapes.

However, I have mentioned on a number of occasions that vapes could be and are used as a smoking cessation tool. This is why I perhaps go further in my desire than the shadow Minister does in relation to the amendments that she has put forward. I do not know whether she will press them, but I do ask the Minister to think about the issue of smoking cessation. The shadow Minister talks about how someone who is promoting smoking cessation might fall foul of these rules as they are written—the Minister shakes his head, and I am sure that he will be able to give us reasons for that in a minute.

I would go one step further. For example, we allow the promotion and advertisement of gums and nicotine patches, because they are classed as a medical product, being effective smoking cessation tools. Of course we do not want anybody who does not smoke, either an adult or a child, to be chewing nicotine gum or wearing nicotine patches—to be frank, I am not clear whether there is any evidence that they do, but I suspect they are not seen as, to use the word I think the Minister used last week, “sexy”. I do not think anyone thinks that chewing gum is particularly sexy, and certainly a patch on the arm is not sexy, so I accept that those are not in the same bracket as a vape with colourful packaging and so on. However, gums and nicotine patches are monitored by the MHRA.

I know that the Minister has indicated that a new home is being sought for vapes, but as it stands in the law, they would be monitored by the MHRA. If we are going to say that they are in a similar vein to a patch or a gum in terms of smoking cessation, it is possible that we might want to be able to promote and publicise them, maybe through something in a doctor’s surgery or in a maternity ward, as my hon. Friend the shadow Minister said, that says, “Don’t smoke. Instead, use a vape, a patch or a gum.” If that advert in a doctor’s surgery said “gum” or “patch”, there would be no problem, but if it said “vape”, my understanding is that it would fall foul of these clauses. As my hon. Friend said, they may not want to fall foul of the law, but we might want to be able to advertise vapes as a smoking cessation tool in that very limited circumstance and in an appropriate place—that is, in a pharmacy or a doctor’s surgery.

Beccy Cooper (Labour, Worthing West)

I want to add something to what the hon. Gentleman is saying, which is interesting and relevant, about smoking cessation services and how they currently work. I have run and managed smoking cessation services. As it stands, when a smoking cessation adviser is talking to a person who wants to stop smoking, they discuss nicotine patches, gum and whatever other options may be available. They do not promote vapes or actively say that they are an option.

The reason for that is the public health evidence. In public health, we apply the precautionary principle, by and large, where we think that there may well be harms ensuing from using a particular product, but the evidence is not yet sufficient. The hon. Gentleman is absolutely right that, in the case of smoking, using vapes is much more preferable for a person’s health, but in terms of smoking cessation, as clinicians and advisers, we need to be careful in how we apply clinical norms, and that is relevant here.

Gregory Stafford (Conservative, Farnham and Bordon)

The hon. Lady makes an interesting point. I will not labour my point any further, because I think I have made it; I am sure that the Minister can respond to it when we get there.

Danny Chambers (Liberal Democrat, Winchester)

As part of the solution, legislation must already be in place, because human and veterinary prescription-only drugs are not allowed to be advertised to the public, but they can be advertised to medical professionals. There must be legislation that prevents rogue companies from advertising in the UK products that they are not allowed to advertise to the general public, and I imagine that it should be incorporated into the Bill to address the problem that the hon. Gentleman talks about.

Gregory Stafford (Conservative, Farnham and Bordon)

Forgive me; I am not sure I fully understand the hon. Member’s point in relation to what I was just saying, but that is probably because I have not explained myself well enough, not because he has misunderstood it. I entirely agree that the advertising of tobacco and vape products should be banned, and I agree with the sentiment and the outline in the law. All I am saying is that when the Minister or the relevant authority seeks to prosecute somebody for this offence, there may be occasions, given the complexity of the internet these days, when people may not know that their website is hosting said adverts. I do not want to labour that point again, but I am sure the Minister can respond.

Jack Rankin (Conservative, Windsor)

Members will be glad to know that I have curtailed my remarks, because the Conservative Benches almost seem to be in agreement, which will delight the Whip. However, I do have concerns about part 6 and some questions on a couple of specific points, and I would appreciate it if the Minister considered them.

One of my concerns is the potential weakness of the public consultation aspect. It is my understanding that other parts of this Bill—particularly flavours and packaging restrictions—will be consulted on before secondary legislation is introduced, but that that is not necessarily the case for this part. This part should be subject to that same level of public scrutiny. It seems to me that experts, consumers, retailers and even legitimate parts of the vaping industry should have the opportunity to have their views heard on these clauses before the Government move forward with the legislation.

The first of the overriding concerns that have been articulated is that the Government should not accidentally make it harder for adult smokers to switch to vapes and other safer nicotine products. The Government’s own risk assessment mentions that as a risk, so I would welcome the Minister’s comments on that.

Secondly, we have to be a little bit careful about imposing burdensome restrictions on compliant small businesses, particularly convenience stores. It is my understanding that, for some convenience stores, up to a quarter of their sales come from tobacco and vapes.

On the top lines on part 6, it seems to me that the advertising and promotion of vapes and other nicotine products, including nicotine patches, could very well be an effective means of reaching adult smokers and helping them to switch. What assessment has the Minister made regarding the effect on switching rates that this advertising ban may have?

ASH reported that half of smokers incorrectly believed that vaping was more harmful than, or equally harmful to, smoking, and that trend is one that has increased. Is the Minister not concerned that, by banning the advertisement of these products, the Government could be at risk of inadvertently exacerbating that problem and undermining its own public health messaging that

“Nicotine vaping is substantially less harmful than smoking”?

To my mind, if we are to continue to encourage smokers to switch, it is crucial that they are aware of the relative risks of vapes and nicotine patches compared with cigarettes. I know that the Minister has made the point that no level of use is safe, but we are talking about the relative risks here. To my mind, there should be provision in this legislation to allow for the promotion of information on the relative harms of vapes and nicotine patches compared with cigarettes. I think that is part of the nub of what my hon. Friend the shadow Minister is getting at.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

My hon. Friend is making some good points about the importance of ensuring that people can access nicotine replacement therapy in its various forms if they wish to stop smoking, because that will be healthier for them. I understand what the hon. Member for Winchester has said about prescription-only medicines, and that it is illegal to advertise prescription-only medicines to the public, but not all nicotine replacement therapies are prescription-only medicines, so those can be advertised to the public at the moment.

Jack Rankin (Conservative, Windsor)

I thank my hon. Friend for her comment. I was struck in the written evidence—we have been overwhelmed with written submissions; I am not sure whether we were expected to read them all—by a comment by a Professor Peter Hajek when he was speaking to the Health and Social Care Select Committee. He said:

“In Tokyo there were huge, big posters showing the risk of smoking and, at one tenth of it, in a histogram, was the risk of IQOS”—

I would translate “IQOS” as heated tobacco. He then said:

“Within about five years—it has never happened before and is a fantastic achievement for public health without any involvement of Government—sales of cigarettes in Japan dropped by 50%.”

As I understand it from his description of that histogram, it was an advert by a private heated tobacco company, showing the relative sizes of the risks of cigarettes and of heated tobacco. That is something that this advertisement ban might prohibit, but that might help the Government in their aims to move to a smoke-free generation.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I am afraid I might need to break the happy agreement on the Conservative side. While I understand my hon. Friend’s laudable aim of encouraging those who smoke to use a less harmful product, which is a good thing, the clear evidence we have seen is that tobacco, in all its forms, is essentially harmful. Moving people from smoking tobacco in cigarettes to using heated tobacco may or may not reduce the harm, but it would still be significantly harmful. It would be better if an individual saw their pharmacist or clinician to get proper nicotine therapy, which is designated by the MHRA as a properly medically regulated product, rather than moving on to a different commercial product that is still harmful for them.

Jack Rankin (Conservative, Windsor)

My hon. Friend makes her point well, and she is right that there is a slight disagreement between us. The Government should be wary—

Caroline Johnson (Conservative, Sleaford and North Hykeham)

rose—

Jack Rankin (Conservative, Windsor)

I am going to make some progress. Even judging by the Government’s own standards, we should be treating vaped tobacco and heated tobacco very differently from cigarettes. We should be a little careful about the unintended consequences of this measure, and I hope the Minister can say how he might consult other bodies to look at those unintended consequences.

I have a small concern with the internet services measure in clause 119. Again, it seems that the Government’s aims in this legislation is to prevent targeted communication on vapes and nicotine products to adult smokers, such as via emails or digital channels, which can reach them directly. I understand the point about not wanting to aim such communication at children, but targeted communication, such as using people’s internet search history, could be an effective means of encouraging smokers to quit. I mentioned a few weeks ago the work that NHS Essex is doing with a vaping company, targeted at adult smokers. I do not think the Government, in achieving their aims of a smoke-free generation, should be too prescriptive on this.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I am grateful to hon. Members for our discussion on amendment 87 and subsequent clauses. These amendments intend to make an exemption under the advertisement ban to allow vaping products to be promoted by businesses as a smoking cessation tool for existing tobacco smokers. I am sympathetic to the shadow Minister’s intention behind the amendment to ensure that smokers are encouraged to use vapes as a quit aid. That is why the Bill as drafted will continue to support the promotion of vaping as a quit aid for smokers through the appropriate channels. By “appropriate channels”, I say to the hon. Lady that we mean public health authorities.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I want to clarify one small point, if I have not made myself completely clear. On a personal level, I do not particularly want people to be persuaded to go from smoking to vaping, because I think it is an alternative addiction that they will get stuck on. I would much prefer them to be directed towards other forms of nicotine replacement therapy, which will be effective and more short lived. However, given that the current medical advice is that vaping is better, I think it is important that it is available.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I get that the shadow Minister is dancing on a pinhead, but she has brought to the Committee a set of amendments for which that would be the purpose. If they are pushed to a vote, I am sure we will have the bewilderment of the shadow Minister yet again abstaining on measures that the shadow Minister has brought before the Committee.

We believe it is for public health authorities to promote vaping as a quit aid for current smokers. For example, local stop smoking services will continue to be able to promote vapes to smokers as a less harmful alternative following the passage of the Bill. We strongly believe that any promotion of vaping as a way to quit smoking is best led and delivered by the appropriate authorities, such as local stop smoking services, public health professionals and the national health service.

The clauses in part 6 of the Bill, taken in totality, will form a complete ban on advertising and sponsorship for tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products, bringing them all in line with tobacco. It is unacceptable that children are exposed to vape adverts on the sides of buses and in shop windows when they make their way to school.

Clauses 114 to 117 make it an offence for anyone

“acting in the course of business”

to publish, design, print or distribute an advertisement

“whose purpose or effect is to promote”

a relevant product within the Bill. Upon conviction, anyone who has committed an offence under part 6 will be liable to a fine, imprisonment or both. These clauses are an essential part of the overall suite of restrictions that will ban advertising of relevant products within the UK. Taken together they will ensure that even if someone has not designed or published an advert, it will still be an offence to print or distribute that advert. This is key to stopping their eventual distribution. I hope that answers the questions about whether there is a loophole allowing adverts produced for international markets to be distributed in the United Kingdom. The distribution of those adverts will be an offence.

Clause 118 makes it an offence to cause the offences I have just set out. It would be an offence if a person “knows or has reason to suspect” that they are causing these things, whereas if someone unknowingly delivered a package containing leaflets, they would not be guilty of the offence. Without this clause, it would be possible to instruct others to publish, design, print or distribute adverts without committing an offence. Clearly, we need to ensure that it is also an offence to cause these things to happen.

Lastly, clause 119 makes it an offence to provide an internet service in the course of a business by means of which an advert for a relevant product is published or distributed. This would mean that an organisation that provides a service to a person—for example, Sky or TalkTalk—would commit an offence if they provided a service that enabled the online advertisements to happen and if they permitted that space to be used to promote relevant products. That could include becoming aware that the service is hosting a vape advert and subsequently failing to take that advert down. This is particularly important, as young people, and some not-so-young—we now know that, if we have a hoof that needs trimming, the hon. Member for Farnham and Bordon is our man, although I am not sure whether he provides the service or just passes the request on—

Gregory Stafford (Conservative, Farnham and Bordon)

Things haven’t got that bad yet.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

Clause 119 is important, as children spend a lot of time online and therefore are more exposed to a variety of internet services. It is unacceptable that a child using the internet to study might be exposed to a variety of vape adverts. We need to take action to stop these products being deliberately advertised to children, to protect future generations from becoming hooked on nicotine.

The shadow Minister’s amendments would in theory allow any shops or businesses to advertise vaping products to existing tobacco smokers. It would be incredibly difficult to target the advertisement of vaping products to current smokers alone, without the risk of children and non-smokers seeing the promotional material. That would not only make enforcement complicated, but make the messaging about the ban inconsistent. Research on tobacco advertising bans has shown that comprehensive bans were significantly more effective than partial restrictions in reducing smoking rates.

Hon. Members has posed a number of questions, which I will address. What constitutes an advert and how will the decisions be made? The Advertising Standards Authority is the regulator, and it will take a proportionate approach. All adverts are captured. Decisions on whether something is an advert will be made on a case-by-case basis, and it is for the ASA to decide. If the purpose or effect of something is to promote a product, it will most likely be captured. I say to the hon. Member for Windsor, “Worry not”: the ASA knows how the internet works, because it is dealing with it daily, and as we speak.

How does liability work? The offence will be charged on a case-by-case basis. In most cases, we expect that this will involve a company. The ASA is experienced in making decisions on tobacco restrictions at the moment, and the provision merely extends the powers and responsibilities that it is already undertaking with regard to a variety of other products. On social media influencers, it depends on how the ASA approaches the matter; if it decides that something is constituted as an advert, action can be taken. Nobody is above the law of the United Kingdom.

The hon. Member for Windsor asked why we are making changes to the law without consulting. To be clear, tobacco adverts are already banned under the Tobacco Advertising and Promotion Act 2002, and the provisions in part 6 of the Bill will simply maintain the existing ban on tobacco advertisements. We were elected with a mandate to carry out our manifesto commitments, one of which was to stop the advertising of vapes to children. We already know that the measures to restrict vape advertising are strongly supported: 74% of adults in Great Britain support banning the advertising and promotion of e-cigarettes at point of sale, at the till, in stores and as people enter shops, and only 6% are opposed.

Does aligning vapes with tobacco in this area contribute to misconceptions that vapes are just as harmful as tobacco? Although the approach towards vapes and towards tobacco will align in this area, our future regulations on other vape measures will be carefully considered so that there is a clear difference between these products. Given that vapes are less harmful than tobacco, we do not intend to treat them in exactly the same way as tobacco. To be clear, there is no more dangerous product that is legally sold in our shops than tobacco—a product that kills two thirds of its users—but we do not want to inadvertently addict a new generation to nicotine. That is the reason for the advertising measures.

Will the ban on the advertising of heated tobacco products increase the demand for traditional cigarettes? The Department’s opinion is that heated tobacco products are covered under the 2002 Act, which prohibits the advertisement and sponsorship of tobacco products. The new definition just ensures clarity on the scope of the legislation, as well as future-proofing policy. This is not a new ban; we believe that the existing tobacco advertising ban appertains to heated tobacco products in any case.

We very much want people to give up all forms of tobacco. That is why this Government have invested a further £70 million for smoking cessation services in the new financial year, and why I maintain that, although we are saying to tobacco companies, “This is as good as it gets,” we will move heaven and earth to shrink their customer base even further with appropriate smoking cessation. With that, I ask the shadow Minister to withdraw her amendment, and commend the clauses to the Committee.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

The Minister knows that I believe strongly that we need to stop people smoking, because of its dangers, and that we need to stop children from taking up any form of nicotine, because we have heard how harmful nicotine is to them. He will also be aware of my argument—which I made in relation to the previous iteration of the Bill—that advertising, marketing and sponsorship should be included to reduce the appeal of the products to children. I support the clauses, but I was keen to debate how smoking cessation services will be able to discuss these products. The Minister has been reasonably, if not absolutely, clear on that, so I beg to ask leave to withdraw the amendment.

Clause 120 - Advertising: defences

Peter Dowd (Labour, Bootle)

With this it will be convenient to discuss the following:

Clause 121 stand part.

Government amendment 1.

Clause 122 stand part.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

It is good to see you back in the Chair, Mr Dowd. These clauses concern the defences and exemptions to the advertising bans on relevant products—tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products—as set out in clauses 114 to 119, which we have just debated.

Clause 120 sets out three situations in which someone has a defence to the advertising bans. Those are trade adverts, sending information in response to a request and adverts for outside the United Kingdom. The clause sets out that adverts contained only in communications between members of specific, relevant trades in the course of business will have a defence if charged with an offence. For example, a vaping company could send promotional materials to someone responsible for buying products to sell, but that would otherwise be banned if aimed at members of the public. Similarly, a defence exists if the advert is contained in a publication that is not printed or intended to be marketed in the UK. The final defence is that if businesses receive a direct request about their products, they are permitted to respond to that request with material that would legally be considered an advert.

Clause 121 restates existing law that allows specialist tobacconists to advertise specialist products in their shops. Specialist tobacconists will therefore be exempt from the restrictions on advertisements in part 6 of the Bill, provided that their adverts meet certain criteria, such as being visible only inside the shop. The clause empowers the appropriate national authority in each of the devolved Administrations to make regulations to specify what health warnings and information must be included in the adverts. Specialist tobacconists make up a tiny percentage of the market in the UK and are focused on specialist products such as pipes and cigars, and this exemption reflects the specialist nature of the trade carried out by these shops. However, tobacco is a uniquely harmful product, so we will continue to monitor the specialist market closely in case the situation changes.

Clause 122 ensures that no offence is committed under part 6 of the Bill for something that is regulated under the law on displays. For example, displaying a relevant product or the price of the product in accordance with any regulations concerning displays would not be considered an advertisement for the purposes of advertising offences. Without this provision, a display of a relevant product or other material that is permitted may be prohibited as an advertisement. The provision therefore allows for shops to display a vape, subject to the restrictions set out in legislation on their display, without it being considered an advertisement.

However, in the relevant provision for Scotland, the clause refers only to the legislation on the display of the tobacco products themselves and does not include the legislative provision on the display of the prices of the tobacco products. Government amendment 1 has been made to ensure that both are captured when determining whether something is subject to the law relating to displays, as the equivalent provisions do for England, Wales and Northern Ireland. That has been done at the request of the Scottish Government to make the approach in Scotland consistent with that in the other three jurisdictions across the United Kingdom. It is for that reason that the Government commend this amendment and clauses 120 to 122 to the Committee.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I noticed that Government amendment 1 was included in this grouping. Does the Minister want to talk about it?

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I did.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Oh, sorry. I must have had a moment.

Clause 120 concerns advertising defences. I wanted to ask specifically about the defence relating to the relevant trade communication being directed solely at persons involved in that trade. Does that include adverts within trade magazines? Does it include trade shows and trade stands where these adverts might be visible? Will these adverts or promotions need to be explicitly directed at trade, and will they need to be only visible to trade, or could this actually create a loophole in which there is a suggestion that these are trade magazines, but are actually more widely available than that and therefore provide an advert to the public? How will that work? What if one is doing a trade show in a relatively public venue such as an exhibition centre?

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I can answer that very quickly and clearly, because it was set out in my opening speech. I am not sure whether the shadow Minister was fully paying attention, because it also included Government amendment 1, in relation to bringing Scotland into line with the rest of the United Kingdom on these measures. The legislation sets out that adverts contained only in communications made between members of specific relevant trades in the course of business will have a defence if charged with an offence. I think that is pretty clear.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I understand what the Minister is saying, but if members of a trade body are being spoken to at a trade show, for example, will the people running the show need to make sure that people who are not members of the trade do not come? Sometimes, people may bring other people along with them. Will there need to be provisions to ensure that when that trade show is advertised, it is not done in a way that promotes the product itself? If the show is to happen, people will need to know about it, so how will they find out? This is just about making sure there are no loopholes.

There is also the business of who is publishing and who is distributing. If someone were to design, produce and print leaflets in the belief that they would be distributed abroad, but then someone gave some young delivery chap, perhaps in his teens, some money to deliver them to a group of households, as happens with pizza delivery adverts and such things, the young lad would be committing an offence of which he may or may not be aware. That is no excuse under the law, of course, but the person with greater culpability would be the person who gave him the leaflet. How does the Minister intend the law to be applied in such a situation?

Clause 121 concerns specialist tobacconists. The Minister has been quite consistent on every aspect of this legislation—apart from penalties—in saying that tobacco in all its forms is bad for people and needs to be eliminated, so I am interested in this specialist tobacco exemption. I understand that the advert is going to be available inside the store, and not visible from the outside, and that it will exclude cigarettes and hand-rolling tobacco. I am interested to understand why it will specifically exclude those and not other forms of tobacco. The Minister might say, “That is what the legislation says at the moment, and we want to keep it the same,” but passing new legislation is an opportunity to change things, review what we currently have and decide whether it needs to be different. I am interested in his reasons for that decision.

The clause defines a “specialist tobacconist” as a shop

“more than half of whose sales…derive from the sale of cigars, snuff, pipe tobacco and smoking accessories.”

That would appear to be on the basis of the cost or value of sales. What is the reason for that definition? It may be that that is the existing definition, but has the Minister considered whether specialist tobacconists should be defined according to whether they sell a greater or a lesser amount of such products? Also, we see vape shops on virtually every high street now, so how will the Bill apply to them?

Gregory Stafford (Conservative, Farnham and Bordon)

It is a pleasure to serve under your chairmanship again, Mr Dowd. My understanding is that Government amendment 1 simply makes a correction to bring things into line, so I very much doubt that we will oppose it.

It is clearly necessary and right to have some defences written into law, but I have a few questions about clauses 121 and 122. As the shadow Minister said, the Minister and the Government have been extraordinarily clear that tobacco-based products, as well as vapes, are unhealthy and have a significant impact on public health. It is therefore interesting that the Minister has not been so consistent when it comes to what one might call specialist or traditional tobacco.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

My hon. Friend is talking about specialist tobacco. Can he or the Minister enlighten the Committee as to whether specialist tobacco is less harmful than any other form?

Gregory Stafford (Conservative, Farnham and Bordon)

I do not claim to have a medical qualification, but my guess would be that there is no difference between specialist and other forms of tobacco. One might even say—again, I am not medically qualified —that specialist tobacco may be more harmful, because a pipe has no filter, and nor are there other things that could mitigate, at least minimally, the harmful nature of the tobacco. The shadow Minister is right, and the Minister has been clear, that there is no such thing as safe smoking in any form.

It is interesting that the Minister has decided to exempt specialist tobacconists in this regard. Perhaps he could enlighten us as to how many specialist tobacconists there are in the United Kingdom, and how many consumers currently buy their tobacco from a specialist tobacconist. That would give us some indication of how prevalent the issue is.

Jack Rankin (Conservative, Windsor)

I encourage my hon. Friend not to criticise the Minister for doing something quite sensible in pursuing this evidence-based approach. I have said before that people who have a cigar on new year’s eve and who use specialist tobacconists—that is where I get mine—are the kind of people we should be letting off a little. The Minister is right.

Gregory Stafford (Conservative, Farnham and Bordon)

My hon. Friend and I agree on most areas of policy, but this is probably one on which we do not entirely see eye to eye. Another hon. Member asked me yesterday to mention the personal benefits of cigars for his stress levels. I informed him very clearly that reducing any amount of stress with a cigar only exacerbates the effect on his lungs; although he might feel a little less stressed in the moment, he will feel much more stressed when, unfortunately, he has a tobacco-related disease. I therefore disagree with my hon. Friend the Member for Windsor.

That being said, and I have mentioned this previously on other clauses, we must be consistent between larger and smaller retailers and not bring in anything that will disadvantage the smaller ones. Perhaps that is what was in the Minister’s mind when he included this clause.

Clause 122 addresses the exclusion for advertisements that are displays. My view is that that is crucial in delineating the boundaries between permissible product displays and prohibited advertisements, which ensures clarity for retailers and upholds the integrity of the public health policies the Minister is espousing. Clause 122 stipulates that no offence is committed under this part of the legislation if the product or other material displayed is subject to the relevant law relating to displays. I think the intent is to prevent a display that is legally permitted from being inadvertently classified and penalised as an advertisement. For example, displaying a vape product would not be considered an advertisement if the vapes were subject to specific display regulations.

There are a number of reasons why I think this is a sensible clause. First, it provides clarity for retailers. Obviously, they need to navigate complex regulations concerning promotions and the display of tobacco and vape products. By clearly distinguishing between a display and an advertisement, clause 122 provides the much-needed clarity that some retailers have written to us about, and enables retailers to comply with the law without fear of unintended violations. That distinction helps to prevent legal ambiguities that could lead to unwarranted penalties for businesses operating in good faith.

Secondly, as I mentioned, whenever we legislate in this part of the Bill, we have to uphold the public health objectives the Minister so rightly espouses. Although it is essential to allow retailers to display products available for sale—as someone has to be able to know that they are being sold—it is equally important to prevent promotional activities that could encourage the uptake of smoking or vaping, especially among young people. My reading of clause 122 suggests that permitted displays do not cross the line into advertising, thereby supporting the public health initiatives aimed at reducing tobacco and vape usage.

However, there may be a couple of challenges and considerations. As I think the shadow Minister mentioned briefly, there is a risk that some retailers might attempt to exploit the distinction between displays and advertisements to circumvent the advertising regulations that we have spoken about. For instance, arranging displays in a manner that draws undue attention or includes promotional elements could undermine the intent of the legislation.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

My hon. Friend is making a very important point. Does he agree that the timing will be important too, because this legislation will come into force more quickly than the regulations? The Minister said that he would “go like the clappers”, but we have not had further definition of what that means or of how quickly regulations will come into force. Regulations on displays may lag behind the Bill’s provisions on advertising, so companies are likely to use the display provisions to circumvent the advertising provisions until the Minister brings the regulations in.

Gregory Stafford (Conservative, Farnham and Bordon)

I completely agree. It is essential that not only this clause and the regulations it will bring in, but all the clauses we have talked about—both those where regulations are included on the face of the Bill and those that give the Minister, the Department for Health and relevant authorities the power to implement other regulations and restrictions—are phased appropriately, so that retailers and manufacturers can adjust to the new laws. They must also be introduced rapidly enough that there are no loopholes, and in the right sequence so that people cannot take advantage of any loopholes.

That brings me to the point that vigilant enforcement and clear guidelines are necessary to prevent such exploitation. I would be interested to know from the Minister whether that links back to the previous clauses, in which we talked about the display of notices.

Likewise, we need to ensure that there is consistency across the jurisdictions. We have devolved government in this country, but if regulations concerning the display and advertisement of tobacco and vape products vary between the different countries of the United Kingdom, there could be cause for some legal issues. It is therefore vital to ensure that clause 122 is applied consistently across all parts of the United Kingdom to prevent confusion among retailers and to maintain the stated aim of the Bill, which is uniform public health standards.

I have a few questions to the Minister. First, will he be developing comprehensive guidelines for what constitutes a display versus an advertisement? These guidelines should include visual examples to assist retailers in understanding and complying with the regulations. I mentioned it before, but regular training and communication is essential so that retailers can be educated about the distinctions and the legal requirements. Continued regular communication will help to address any ambiguities and keep retailers informed about any changes to the laws or regulations that the Minister or his successors might introduce. The Minister is laughing, but I think it is more that he received a funny text than because of my speech.

Finally, robust monitoring and enforcement is essential to ensure that there is compliance with clause 122. That should include routine inspections and clear processes for addressing violations to ensure that the distinction between displays and advertisements is respected. In conclusion, the clause plays a pivotal role in balancing the rights of retailers to display their products with the necessity of restricting advertising that could promote tobacco and vape usage. We on this side of the Committee—mostly—agree with the clause, and I hope that the Minister will answer some of the queries that we have raised.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I thank hon. Members for their questions. The hon. Member for Farnham and Bordon just referred to my smirk, and it was indeed a text from somebody asking whether we should define “clappers” in our guidance as well.

To return to the substance of the Bill, the Government amendment is minor and technical; there was a drafting error, and the Scottish Government have since requested the amendment to correct it and to ensure the regulations and the law, as it appertains to England, Wales and Northern Ireland, will be the same for Scotland.

On the subject of “specialist tobacconists”, let me first make a point of clarification for the shadow Minister and the hon. Member for Farnham and Bordon. We are not saying there is specialist tobacco—there is no such thing. Tobacco is dangerous and uniquely harmful. Tobacco is tobacco. There is nothing specialist about it. A very small number of retailers around the United Kingdom sell niche products; they are specialist tobacconists. That is different to the tobacco being special. There is nothing special about tobacco. The tiny number of retailers that sell things such as pipes and cigars exist in a limited number of places and there are already exemptions in the law for them. As we move towards smoke-free, the reality of market economics means that those specialist tobacconists are not necessarily likely to be around at some stage in the future.

The impact assessment that the Government have provided alongside the Bill makes it very clear. With the measures in the Bill, by 2050—25 years’ time, that is all—we are looking at smoking prevalence in the under-30s being nearly zero. Given that reality, the Government believe that the current exemptions for that small number of retailers will continue. Due to the specialist nature of their trade—they focus on a small number of other tobacco products, such as cigars—they only make up a tiny proportion of the UK market. We know that all tobacco products are harmful, so the Government will, of course, keep a watchful eye on it to make sure that we do not inadvertently grow a new market but, at this stage, we do not believe that will happen.

Specialist tobacconists are not permitted to advertise cigarettes or hand-rolling tobacco because those are the most commonly used types of tobacco. The existing bans on tobacco advertising therefore relate to the sale of those products, whether in specialist tobacconists or the local supermarket, so we are really talking about the advertising exemption for other products. That is a continuation of the existing exemption, which has not caused any issues such as younger people taking up smoking. Any advertising the retailers have cannot be visible from outside the premises. That is really important so that a child walking past one of these random Hogwarts-looking shops that sell a product of which they are hopefully not aware will not ever be attracted to what goes on inside.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I am pleased that the Minister is considering how shops look from the outside because, when one walks down the high street at the moment, it is not uncommon to find shops where the entire shop window has been turned into a picture of various types of vapes.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

Absolutely—I agree with the hon. Lady that how it looks from the outside does matter. That is why, when these exemptions were put into earlier legislation, it was clear that none of the adverts for these niche products could be visible in the shop window from the outside, precisely to protect future generations from ever being enticed to think, “I wonder what a pipe tastes like, or what a cigar is like,” although I am sure the hon. Member for Windsor could, if he chose, give us an hour-long explanation. That is why the legislation is drafted in the way it is. However—and hopefully the industry is listening to this—the Government will, of course, continue to keep an eye on whether this exemption is working in the way that it has previously worked and that we expect it probably will work in the future. If in the future we have evidence that it is not working, the Government can come back and look at it again. However, as things stand, I commend the clauses to the Committee.

Clause 122 - Exclusion for advertisements that are displays

Clause 123 - Brandsharing

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

The clause provides the Secretary of State with the power to introduce regulations that prohibit or restrict the brand sharing of tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products. Tobacco brand sharing is already prohibited. Brand sharing, also known as brand stretching, is a form of indirect advertising that promotes the use of a service or product by putting its branding on other products or services, or vice versa. For example, using a tobacco product on a logo or a T-shirt or a confectionery company using its branding on a vape are examples of brand sharing if the intent is to promote vapes. There is a clear association between tobacco advertisements and the uptake of products.

Associating nicotine or vape products with a reputable brand may also incentivise consumers, particularly children, adolescents and other vulnerable groups, to buy the product. We want to stop that happening and to protect young people and future generations from becoming addicted to nicotine. I therefore commend the clause to the Committee.

Gregory Stafford (Conservative, Farnham and Bordon)

The clause grants the Secretary of State the authority to regulate brand sharing related to tobacco products, vaping products, nicotine products, herbal smoking products and cigarette papers. I think the provision is instrumental in preventing indirect advertising strategies that could undermine the public health efforts in the Bill aimed at reducing consumption of those products.

Brand sharing, in my understanding, refers to the practice of using a brand name, a logo or some kind of distinctive feature associated with a particular product across a range of different product categories. In the context of tobacco and vaping products, brand sharing can manifest in several ways. Cross-product branding uses a tobacco brand’s name or logo on a non-tobacco product such as clothing or accessories to maintain brand visibility despite the advertising restrictions.

On event sponsorships, my hon. Friend the shadow Minister mentioned how we banned the advertising of tobacco products at Formula 1, the cricket and so on. Associating a tobacco or vape brand with events indirectly promotes the brand to a broader audience. Merchandising—the selling or distributing of merchandise bearing the branding of tobacco or vape products—can appeal to various demographics, especially young people.

Jack Rankin (Conservative, Windsor)

I wholeheartedly support the Government on tobacco, but does my hon. Friend agree with me that there might be an inconsistency being applied here? For example, vaping and nicotine products are being outlawed, but sport is awash with gambling and alcohol brand sharing. Does he not think that that is an inconsistent application of the message?

Gregory Stafford (Conservative, Farnham and Bordon)

I do not want to put words into the Minister’s mouth; I am sure he can respond to my hon. Friend when he gets up. I think there has been relative unanimity on the Committee. Unlike alcohol and gambling, to use the two examples that my hon. Friend gave, tobacco is significantly more dangerous. Whereas there are safe levels of indulgence in gambling and alcohol, there is no safe indulgence in tobacco products. I think the Minister has made that very clear. If I have misinterpreted what he said, I am sure he will correct me.

The rationale for the clause is important: it closes advertising loopholes. Traditional advertising channels for tobacco products have been progressively restricted to reduce their appeal and accessibility, especially to young people. However, brand sharing could present a loophole that companies could exploit to continue to promote their products indirectly. By regulating brand sharing, the clause aims to close that gap, ensuring the intent of the advertising restrictions, which we have previously discussed, is fully realised.

Secondly, as with measures throughout the Bill, the clause aims to protect public health. Indirect advertising through brand sharing can subtly influence consumer behaviour, particularly among impressionable groups such as adolescents. Exposure to branding on non-tobacco products or at events can normalise tobacco and vape use, potentially leading to their initiation and then continued usage. Regulating brand sharing is therefore a critical step in protecting public health by limiting the avenues through which these products are promoted.

Once again, the clause brings us into line with a number of international standards. Many countries have already recognised the risks associated with brand sharing and have implemented regulations to address it. For example, the World Health Organisation’s framework convention on tobacco control, which I previously mentioned, recommends comprehensive bans on all forms of tobacco advertising, promotion and sponsorship, including indirect forms such as brand sharing. By empowering the Secretary of State to regulate brand sharing, the UK is aligning itself with international best practices in tobacco control.

However, there are some challenges and considerations. The first is defining the scope of brand sharing. One of the primary challenges I see in regulating brand sharing is establishing clear definitions and boundaries. Determining what constitutes brand sharing requires careful consideration to avoid an ambiguity that could be exploited. I hope the Minister will give us some understanding of what the guidelines and boundaries might look like. Clear guidelines are essential to ensure that both regulators and businesses understand the limitations and comply accordingly.

The definition of brand sharing in subsection (2) involves broad and somewhat ambiguous terms, such as

“anything which is the same as, or similar to, a name, emblem, or any other feature”.

The use of such open-ended language could create uncertainty about what constitutes a violation of the regulations. How precise must the similarities between a relevant product and another service product be in order to be considered brand sharing? It would be helpful if the Minister could help us understand that.

There is also then the balancing of the regulation with commercial rights, which I think my hon. Friend the Member for Windsor alluded to earlier. While the object is clearly to protect public health, it is also important to consider the commercial rights of businesses. Over-restrictive regulation could have unintended economic consequences, particularly, again, for small businesses involved in merchandising or event sponsorship. I have said this before: if the product is legal to consume, we must ensure that whatever regulations we apply are equal and fair for both a large retailer or manufacturer and a small retailer or manufacturer. The regulation is either highly restrictive or highly permissive, but it must be the same. A balanced approach is necessary to achieve the public health goals without imposing undue burdens on legitimate commercial activities.

As I have said before in debates on other clauses, enforcement and compliance potentially bring some logistical challenges. The monitoring of so many various channels, including events and merchandise digital platforms, requires substantial resource. Ensuring compliance among diverse industries and settings necessitates a co-ordinated effort between regulatory bodies, industry stakeholders and the public.

In addition to the questions I have already asked, could the Minister tell us what will be in the accompanying comprehensive guidelines? I urge the Minister to collaborate with public health experts, industry representatives and legal advisers to formulate clear and detailed guidelines on what constitutes prohibited brand-sharing practices. Those guidelines should be regularly updated to address any emerging trends and technologies, which we have discussed previously.

Stakeholder engagement is entirely appropriate and important. That includes with businesses and consumer groups, because we need to understand the regulations and encourage, where possible, voluntary compliance rather than compliance through enforcement operations. Educational campaigns can help stakeholders recognise the public health rationale behind regulations.

Finally, to go back to what I said about having robust monitoring mechanisms, we need to establish some kind of body to oversee and monitor to ensure compliance. Using technology and public reporting mechanisms can aid in identifying the violations and taking prompt action.

In conclusion, I support the intentions of the clause, but the ambiguity around what exactly constitutes brand sharing is something I would like to hear about from the Minister. Potentially, some challenges in enforcement are posed if the clause and the Bill become law.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I am grateful to the hon. Gentleman for his thoughtful contribution and questions. First, to be clear, we are aligning with the same regulatory framework that was used for tobacco. Tobacco brand sharing was done via regulations following the introduction of TAPA—the Tobacco Advertising and Promotion Act 2002—and the necessary consultation through that process. We will of course consider brand-sharing restrictions for vapes once the Bill has received Royal Assent.

It is also important to say that following the ban on direct advertising, we will consider whether further regulation of brand sharing is needed at that point. If it is deemed necessary, we will need to assess the scope and the impact of any regulations to ensure that they are proportionate—precisely the point that the hon. Member for Farnham and Bordon was setting out. My belief is therefore that it is more appropriate to regulate brand sharing via secondary legislation following consultation, not only to get that proportionate balance, but to ensure that any regulations are well understood, workable and enforceable.

An added issue is that advertising is devolved to Scotland and Northern Ireland—but not to Wales—so the Secretary of State must obtain consent from Scottish Ministers and the Department of Health in Northern Ireland before making any regulations containing provisions that would be within the legislative competence of the Scottish Parliament and the Northern Ireland Executive. We want to have the measures in place across the United Kingdom—so that there is no loophole, with brand sharing north of the border but not south of it, for example—so it is important that we go through the correct procedures to ensure that my counterparts in Scotland and in Northern Ireland are fully content with the direction of travel that we may wish for when it comes to England and Wales, which is the responsibility of the Secretary of State in the UK Government.

Clause 124 - Sponsorship: tobacco products

Peter Dowd (Labour, Bootle)

With this it will be convenient to consider clause 125 stand part.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

The clauses deal with sponsorship. Clause 124 covers tobacco products, and clause 125 vaping, nicotine and other products. Why do businesses get involved in sponsorship? Basically, as a way of advertising their products and to associate them with whatever sponsors them. They might want to associate their products with Formula 1, because it is seen by many as sexy, as the Minister put it—fast or cool, or a good thing to be associated with. They might want to associate their products with other sports such as football or rugby, because athletes who participate in them are seen as healthy, fit and cool. Businesses are therefore associating their brands, which may not be healthy or cool, with those athletes.

On the clauses, the Government’s own impact assessment talks about linking sports sponsorship to smoking. A UK study found that when cigarettes were advertised in motor racing, boys aged 12 to 13 who liked motor racing were significantly more likely to smoke than boys who were not so interested in that sport. Clearly, such advertising works; if it did not, companies would not spend so much money on it. Sports sponsorships and endorsements are highly effective marketing tools.

One study found that athletic endorsements generate a 4% increase in sales on average, and a 2014 McKinsey & Company study found that FIFA made £1.4 billion from sponsorship deals with 20 major companies during the Brazil world cup. That is 10% more sponsorship revenue than the previous world cup in South Africa. It is clear that it works, and that is why companies do it.

In my research for the Health and Social Care Committee review of vaping, I was somewhat surprised to find that teams such as Blackburn Rovers football club and St Helens rugby club were sponsored by vape retailer Totally Wicked. Blackburn Rovers’ partnership with Totally Wicked lasted six seasons, ending in June 2024. When the chief executive of Totally Wicked, Marcus Saxton, came before the Committee, he was asked this by the hon. Member for York Central (Rachael Maskell):

“Mr Saxton, you have been very clear that your advertising has been about public health. Why use your products for advertising, as opposed to putting public health messages across the shirts of heroes or across a stadium? Why are you trying to promote your business instead?”

To that, he replied:

“We are a commercial entity and therefore we want smokers to recognise our brand and all the tireless work that we put into our stores, particularly to give the right advice for those particular people. If it is a public health message alone, which as an aside we would advocate because I think education is really important, it is not for us as a commercial entity, where we are looking for smokers to access our stores to gain advice.

”It is clear to me that advertising on sports kit is designed to encourage young people to consider that brand and their products, and that companies are not trying to engage in public health messaging. These clauses aim to prevent that sort of thing. I also drafted new clauses to the previous Tobacco and Vapes Bill in the last Parliament in relation to sponsorship and advertising.

I have a question about football and other sports kit. The Bill mentions a person entering an agreement, the effect of which may be to promote tobacco or vaping products in the United Kingdom, but the person had no reason to suspect that the agreement would have had that effect. It seems very clear that football players in Blackburn cannot have Totally Wicked, or any other vaping or tobacco brand, across the front of their shirts.

However, will teams from other nations that are coming to play in the UK be allowed to display such advertisements? For example, across the channel in 2023, Paris Saint-Germain announced a partnership with Geekvape. If the team comes to play in the UK, will the players be allowed to wear their usual shirts or will they need to be amended? Likewise, if a British team travels abroad to play in the champions league, or something like that, will they be able to wear shirts with such branding while they are abroad, on the basis that it is legal in the country that they are playing in, despite the awareness that the kit will be viewed on television by people in the United Kingdom? Would that be sufficient to invoke clause 124(1) to ensure that they cannot do so? We must think carefully about the potential for clever lawyers to try to work a way out of this.

Sarah Bool (Conservative, South Northamptonshire)

That is a very interesting point, and it goes to the heart of commercial contracts. Money talks and money is very powerful, but we must be careful about that when establishing these rules, because the legal system will always find a way to argue. I can imagine some big cases being brought in relation to this if we are not careful.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

My hon. Friend is, of course, correct.

On advertising and sponsorship, page 101 of the impact assessment states:

“Sponsorship agreements are a form of indirect advertising”—

I agree—

“and there has recently been growing concern about the existence of agreements which promote vaping and nicotine products. These agreements normalise the products and may make them seem cool, having a potentially negative influence on the usage of the products among children and non-smokers.

For nicotine vapes, Ofcom regulations prohibit sponsorship of news and current affairs programmes, and any sponsorship of programming which promotes nicotine vapes. The Communications Act 2003 also prohibits sponsorship of on-demand programme services or a programme on these services which promote nicotine vapes. However, for broader settings such as sports events and teams, music festivals and cultural events, sponsorship which promotes nicotine vapes is permitted.”

It is good that the Minister, in this clause, seeks to prevent such sponsorship—particularly the sort of sponsorship that targets children.

Subsection (1)(a) of both clauses states that a person is party to an agreement entered into “at any time”. That provision does not appear to differentiate between agreements made before and after the Bill becomes law. I understand that the Minister wants to ensure that there is not a sudden flurry of activity in the commercial world to put sponsorship agreements in place before these regulations come into force—we do not want companies to say, “Well, we are bound by this contract for so many years, Minister. We are stuck now”—but does he intend to apply the clause retroactively? Somebody who saw the Bill when it came before the House in March and April, saw it in its other format, or saw the manifesto commitments of all major parties to this Bill in some form or another, may have entered into such agreements already. I would be interested to hear what plans the Minister has to deal with those circumstances.

Alex Barros-Curtis (Labour, Cardiff West)

In my previous life, I worked in commercial contracts. The hon. Lady can be reassured that a typical commercial contract would require that any participant to it must adhere to the laws and applicable regulations in any jurisdiction in which the contract is governed. Regardless of the Government’s intention, which I am sure the Minister will talk about, there should be an overarching clause in most standard commercial contracts about adherence to applicable laws and regulations in the jurisdiction to which the contract applies.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I thank the hon. Gentleman for his contribution. That is another example of why it is important to have a wide spectrum of people on Committees. Of course, that is usually the case, but I am interested to know what the Minister’s intention is with “at any time”. Does he intend it to apply to contracts retrospectively? Presumably he does, but I want to clarify that.

I welcome the constraints on tobacco, vape and nicotine product advertising and sponsorship for this purpose, but I would be grateful if the Minister could answer those questions.

Gregory Stafford (Conservative, Farnham and Bordon)

I have some brief points to make on clauses 124 and 125 about the prohibition of sponsorship and the exceptions to it. Clearly, indirect advertising through sponsorship is a subtle form of advertising, associating brands with popular events and activities to enhance their appeal. By prohibiting such sponsorship, the Bill seeks to close that indirect advertising channel, and that is important, especially when it comes to youth protection. Sponsorships often target events frequented by young people, such as concerts and sporting events. I accept that neither of those things are exclusively for young people, but they often have a preponderance of younger people. Preventing such associations reduces the likelihood of youth exposure to brand imagery that could encourage the initiation of smoking or vaping.

I understand why there need to be exceptions to the sponsorship prohibition, and clause 125 mentions some. But although those exceptions acknowledge certain realities—I am not going to pretend that they do not exist—they need to be carefully regulated to prevent abuse. As I said in debates on previous clauses, clear guidelines are necessary to delineate the boundaries of the exceptions. I hope the Minister can once again give us some clarity and assurance on those.

Jack Rankin (Conservative, Windsor)

In my home office, I have a wonderful watercolour painting of the Lord’s pavilion that celebrates Lancashire winning the Benson & Hedges cup final sometime in the mid-1990s. I know the Minister is a proud Lancashire man, like me, and I agree with him that although we want to see again the days of Lancashire winning cricket tournaments, none of us would want to go back to the days of Benson & Hedges sponsoring sports competitions, so I will support the Minister and the Government on clause 124.

On clause 125, however, I will have to disagree with the Government. As we have already discussed, vaping and nicotine pouches are significantly less harmful than cigarettes. In my view, this clause opens us up to inconsistency across the board. I say that because sponsorship is currently permitted for alcohol and gambling. To me, it makes no sense for vapes to be treated differently. In response to my earlier comments, the point was made that tobacco is uniquely harmful; it is different, in its public health damage, from alcohol and gambling. But I do not fully buy that. I see these things as a spectrum. If people want to say to me that cigarettes are uniquely harmful versus alcohol and gambling, I am prepared to believe that, but I am afraid that when it comes to tobacco and nicotine products and to gambling, these things are a spectrum.

I represent Ascot and Royal Windsor racecourses. Ascot racecourse is in effect the Wembley of racing worldwide, and Royal Windsor is very much in the top tier. I find myself having to defend them quite often when people want to legislate on gambling, because having a cash bet at a racecourse event is a healthy thing to do as part of a day out. That should be treated very differently from somebody in an online casino in the early hours of the morning or on a fixed odds betting terminal. Gambling is a spectrum, and I suggest to the Committee that tobacco and nicotine products are also a spectrum.

I say this with sincerity. The Labour party’s seats may spread much further than they used to, but certainly Labour’s core seats, which perhaps the Minister and the Chair represent—

Beccy Cooper (Labour, Worthing West)

From a public health point of view, I just point out to the hon. Member that we are basing this Bill on evidence and therefore we are looking at the evidence of tobacco harm, which I think we agree on. There is incontrovertible evidence; tobacco is undoubtedly harmful. People should not start smoking tobacco, and we should assist those who come forward to stop.

In relation to vaping, I go back to a previous comment I made, about the precautionary principle. There is evidence on vaping; there do appear to be some harms associated with vaping. There is not sufficient evidence right now for it to be incontrovertible, but it would be irresponsible not to adopt the precautionary principle that we use in public health.

In relation to gambling, I just urge caution—again, on the evidence. There may not be incontrovertible evidence about gambling, but there are undoubtedly health harms from gambling that we need to look at as we move forward.

Jack Rankin (Conservative, Windsor)

I thank the hon. Member for her intervention.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I just want to add to the point made by the hon. Member for Worthing West about the precautionary principle. One of the differences between tobacco products—for example, cigarettes—and vapes is that tobacco products in the form of cigarettes are relatively more uniform in their component parts than are vapes, and it may take quite a long time to work out which of the chemical components of vapes are harmful, so we do need to be more precautionary with that.

Jack Rankin (Conservative, Windsor)

I thank my hon. Friend for her intervention and I will seek to address both interventions in my further remarks. The point I was making to the Labour party is that a lot of its Members have made the case quite eloquently that things such as fixed odds betting terminals, which are often aimed at working-class communities and in particular young men, are like crack cocaine. That is an incredibly dangerous part of gambling. I think online casinos fit in that higher band of harm. I suggest that in the broad sense of tobacco and gambling, online casinos would be more harmful than, for example, the odd cigar that I have had recreationally—I have already made that point—so I think there is very much an inconsistency here.

Look at the Premier League, for example. Hon. Members know that there are 20 football teams in the Premier League. Aston Villa FC is sponsored by Betano, and Bournemouth FC is sponsored by bj88; Betano is an online casino, and bj88 is an Asian gambling site. Brentford FC is sponsored by Hollywoodbets.

Jim Dickson (Labour, Dartford)

We are straying from the point a little, but is the hon. Gentleman aware that the Premier League will shortly initiate a shirt front ban on gambling sponsors? His examples of free advertising and sponsorship of gambling will probably be out of date soon.

Jack Rankin (Conservative, Windsor)

I am glad to hear that—it sounds like positive news, but I will finish my point and go down the list. Crystal Palace FC is sponsored by Net88, a Vietnamese betting company; Everton FC by Stake, an Australian online casino; Fulham FC by SBOBET, a Philippine gambling company; Leicester FC by BC.Game; Nottingham Forest FC is—

Peter Dowd (Labour, Bootle)

Order. I take the point, but I can allow the comparison to go only so far. We are not talking about gambling. Members must try to stick to the debate that we should be having, not to the one that we should not be having.

Jack Rankin (Conservative, Windsor)

I will bring my remarks to a close, Mr Dowd, but I will make the point that some of these sponsors are online crypto casinos. I would argue that they are worse than vapes, so I think some inconsistency is being introduced in the law.

Let me suggest one way in which we could un-work that inconsistency, which I have seen in the Six Nations. Guinness Zero now sponsors the competition, rather than Guinness. It seems to me that we should allow low or no-alcohol beers to engage in these activities, and I see vaping as analogous. I believe that there is an analogy there, but an inconsistency is being applied by this clause.

I will also make a point about the technicality of some of the clauses—I hope that the Minister can point to some of this later. Clause 125(1)(c) mentions sponsorship of

“a herbal smoking product…cigarette papers…a vaping product…a nicotine product,”

but annex B of the explanatory notes on page 102 mentions

“any device which is intended to be used for the consumption of tobacco products or herbal smoking products”.

Will the Minister provide clarity on what other devices we are seeking to capture? For instance, will tobacco filters fall under the sponsorship ban? Will his Department propose a Government amendment to update the text of the Bill to provide clarity and remove that potential loophole?

Sarah Bool (Conservative, South Northamptonshire)

I will make two points. First, I understand where my h F the shadow Minister is coming from in terms of the questions about enforceability and when these things come into effect. Clause 124(1)(a) states that for tobacco products:

“A person commits an offence if…the person is party to an agreement (entered into at any time),”

which will obviously be consistent; but clause 125(1)(a) states that a person commits an offence only if

“the person is party to an agreement entered into on or after the day on which this section comes into force”.

I can see the point that the Minister is making. Will we see a rush of sponsorship agreements on vaping coming in in the next few weeks before we get this Bill on the statute book? That is a legitimate question to raise, and we should all be aware of that possibility.

Generally, it is important that we tackle and take on seriously the role of sponsorship. I do not think that I am alone in recalling the impact of Pepsi and its sponsorship of the Spice Girls when I was young. Its campaign aimed at Generation X had 92 million cans with the Spice Girls on them, which obviously had a big impact. I will be honest and say that I loved the Spice Girls, but seeing anything like that has a massive impact when we are children, so tackling it is absolutely right. Pepsi sponsors the National Football League, Coca-Cola sponsors the Olympics and I think Carlsberg has always sponsored Liverpool FC, so we can see that brand alignment.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I thank my hon. Friend for making the point much more eloquently than I did that there is a difference in the clauses between the days when they come into force. As she is a lawyer who has been involved in contracts, can she confirm that there is no limit to how long someone can enter into a contract? If a contract were entered into in terms of sponsoring vaping or nicotine products before the Bill comes into force, it may last for quite some time.

Sarah Bool (Conservative, South Northamptonshire)

That is a possibility. It always depends on the terms of the contract itself, but in theory they could agree a 10 or 15-year contract and sponsorship deal. It is interesting that this could be one of the overhangs that we see, so we have to be aware of it going forward.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

The clauses make it an offence for a person to be involved with a sponsorship agreement where the purpose is to promote in the course of business tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products. Anyone convicted of an offence under the provisions may be subject to imprisonment, a fine, or both. Tobacco sponsorship is currently banned under the Tobacco Advertising and Promotion Act 2002. There is a long-standing, well-established relationship between tobacco advertising and tobacco consumption.

Clause 124 restates the current position for a person involved in the sponsorship of a tobacco product. We are consolidating existing tobacco legislation in the Bill to provide a coherent narrative for readers, rather than have it spread over lots of different pieces of legislation. A large part of the Bill brings the legislation into one place, so that from Royal Assent onwards, the go-to place for anybody with any questions about tobacco control will be this piece of legislation, rather than it being dispersed across different Acts of Parliament.

Tobacco sponsorship is already banned, but importantly, the Bill expands the offence to include herbal smoking products, cigarette papers, vaping and nicotine products. The restriction will mean that vaping and other nicotine product companies will, for example, not be permitted to sponsor sports teams, which is something that we have seen in recent years. It might upset the hon. Member for Windsor, but I have to say that not a single child should ever be able to look up at their favourite sports stars—people who should be role models—and see them covered in branding for products that are harmful and addictive. That is the point here.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

Would the Minister like to comment on whether many of the athletes may feel uncomfortable wearing shirts with such branding on?

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I am sure that many do. That is another important aspect.

Danny Chambers (Liberal Democrat, Winchester)

To reinforce the point that athletes may be uncomfortable wearing that type of branding, they are not only role models for children, but the epitome of health, fitness and what the human body can achieve. It seems outrageous that they should be advertising harmful products.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

Well, some of them are—the way Man City have been playing this season, I am not quite sure. Anyway, we will get back on to the Bill as quickly as possible.

The ban will apply to agreements entered into after the clause comes into force, two months after Royal Assent. It will be an offence if a contribution is made from either party after the specified date, which will be set out in future regulations. The ban will apply to any agreements entered into after that date, and will therefore not apply to existing contracts. The reason for the two-month period is to provide businesses with advance warning and to prevent them from entering into new agreements.

The hon. Member for South Northamptonshire asked whether this could create a rush to get sponsorship deals in place within that two-month window. That is a fair question, but I think that is unlikely for a number of reasons. First, sponsorship deals are pretty tricky contracts and it tends to take more than two months to reach contractual agreement. Secondly, even if matters were expedited, most clubs already have their deals in place, and they would not replace something when they already have a contractual arrangement for something else. Were that unlikely scenario to play out, we would be looking at only a small number of cases anyway.

When drawing up the regulations, we will have to be careful to ensure that no new contract can be signed, and certainly not for the kind of time period that the shadow Minister set out. That would be really out of the spirit of this legislation and the Government might have to come back to tighten it up further.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I have a couple of questions about the rush of people trying to get contracts. First, presumably such a contract would not need to start straight away, so one could enter into a sponsorship agreement for some future period. As the Minister said, the sponsorship agreements are done for this season and being negotiated for the next, but presumably that would not stop a business entering into a contract to provide sponsorship for the next season, or even the season after. When the Government brought in VAT on private school fees—I should declare an interest here—they put in a forestalling measure that prevented anyone from entering into a contract to pay them ahead from, I believe, 28 July last year. They seem to be taking a much more lenient approach to the advertisers and sponsors of vaping and nicotine products than they are to parents wishing to pay for their children’s education.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

The hon. Lady raises an interesting point; I will take that away and look at it. Perhaps with the exception of the hon. Member for Windsor, everyone on the Committee agrees that we do not want our footballers, rugby stars or athletes to be emblazoned with adverts for vaping products, so the more we can do to tighten up the legislation further, the better.

I will just politely correct the hon. Member for Windsor that the term for someone from the historic County Palatine—including yourself, Mr Dowd—is a Lancastrian. My late father was the Lancashire cricket correspondent, first for Cricket Call, which was a BT paid-for service, and then for BBC North West. He was there in 1990 when Lancashire won both the NatWest and Benson & Hedges cup finals—the double at Lord’s. I still have copies of my late father’s book, “Double Delight”. I would say that they are available at all good booksellers, but they are available from me if the hon. Gentleman wants one.

The hon. Member for Windsor made an important point. I had just come out of secondary school in 1990, which shows how long ago it was, but it was pretty commonplace for tobacco companies to advertise at major sporting events like Lancashire cricket matches and others. The fact is that that was a long time ago, and things have changed for the better. The Benson & Hedges cup final, in cricket of all games, is a thing of the past. Hopefully, at some stage in the near future, we will look back at vape sponsorship of football clubs as a thing of the past, because that is where it deserves to be.

Sarah Bool (Conservative, South Northamptonshire)

This is just off the top of my head, but on a technical point about clause 125(1), in terms of vape sponsorship, a person will be guilty of an offence only after the provision comes into force. I appreciate that there is the two months, but they also have the window of time while the Bill goes through Parliament, so they potentially have a couple more months for that.

I do wonder about how this is going to work in practice, because, in theory, a company that is offering sponsorship—if they enter into that agreement now—will not be in trouble for the next couple of years for doing that, yet under preceding clauses anyone who designed or printed material for any of those sponsorship deals would be guilty of an offence. We suddenly have a position where, potentially, the sponsors themselves are not guilty of an offence while the actual designers, and those who are publishing the sponsorship material, are. That is an interesting nuance.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

The hon. Lady makes a really important point. When we look at things in isolation, as we tend to do with these clauses, we look at them through a narrow prism, but this Bill contains a wide range of powers and legal responsibilities that will help to make things like those sponsorship deals incredibly difficult before the legislation is in force. It is very clear that, after Royal Assent, the requirements that the hon. Lady rightly sets out in terms of advertising, printing, publishing and so on will apply, and separately there will be this two-month window that we are giving, but the whole of the law needs to be read together. Hopefully that gives some assurances on why we believe that these measures, taken in the round, are as robust as they can be.

Alex Barros-Curtis (Labour, Cardiff West)

I am grateful that the Minister will take away the point raised by the hon. Member for South Northamptonshire, discuss it with officials and come back to us. When doing so, it will be worth reflecting on the fact that, as the hon. Lady knows from her previous work, a lot of commercial contracts tend to have force majeure clauses, which may well envisage legislative changes in countries relevant to the jurisdiction of the contract that could impact the commercial value of that contract. This may not be as big a problem as some fear, but it is something to be looked at as part of this work. Of course, given that the average wealth of a Premier League club is £1.2 billion, I am sure they would survive such a clause being activated in those examples.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

My hon. Friend makes a very good point. I am grateful that we have somebody from the legal profession on this Committee to advise this Minister, who is not a lawyer, on provisions that may well be put into any kind of contractual discussion that may be starting now, and to alert the parties to such a contract that the law in the four jurisdictions of the United Kingdom is changing and will therefore affect any agreements that are being put into place in advance of that legislation coming in. That is an important point.

Alex Barros-Curtis (Labour, Cardiff West)

There is one further point that I wish to make. The hon. Member for South Northamptonshire and the shadow Minister were talking about the display of logos or company names on football shirts as an example of the practicalities of enforcement. Would my hon. Friend like to comment on the fact that, in European games, when teams that are sponsored by, for example, an alcoholic beverage or gambling company are playing countries where that is prohibited, the shirts of the relevant football team tend to have black tape over the logos, to prevent them from being displayed in the ground and on TV across the world.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

My hon. Friend, as well as being a sound lawyer, is a sound mind reader, because that was precisely my next point. Rightly, Members are testing the legislation. The purpose of this Committee is to tease out how we expect the legislation to work. When it comes to sporting events, from time to time there will be English, Welsh, Scottish and Northern Irish teams playing in other countries, and more importantly teams from other countries playing within the United Kingdom. My hon. Friend rightly points to the existing practice that where something is illegal, those images are covered up.

Gregory Stafford (Conservative, Farnham and Bordon)

I am going to test the Minister’s legal knowledge now—perhaps his hon. Friend the Member for Cardiff West or one of his officials can come in and save him. Is the Minister saying that when that happens in other countries, it is due to a legal requirement? I understood that it was to be culturally sensitive to the nation we were playing in, rather than there being a legal requirement—for example, covering up alcoholic drinks in a country that does not approve of alcoholic drinks. Conversely, in the Bill and in the regulations, is there something that says that those sponsorships, which would be vapes or tobacco in this country, would require some sort of covering up or a change to a kit with vapes advertised on it if a country were playing here?

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I am grateful to the hon. Member for that question. The answer is going to be the stock answer that I have given throughout—that much of this detail will be down to how we draft the regulations and so on. The law of the United Kingdom and its four respective jurisdictions of England, Wales, Scotland and Northern Ireland is the law of the land. This Parliament, in passing this legislation, expects the law of the land to be adhered to. If the law of the land is not adhered to, there are strong enforcement measures and penalties for those not applying the law as passed by Parliament.

Going back to existing contracts, it is really important to emphasise the legal advice that the Government received in the drafting of the Bill: that we need to be proportionate and pragmatic and we cannot retrospectively legislate to stop existing contracts. It is really important that we avoid retrospectivity in the design of the clauses in front of us, because the principle that underpins our legal system is that the law is prospective, not retrospective.

Alex Barros-Curtis (Labour, Cardiff West)

I appreciate that, and I completely agree. Learned colleagues and others with legal training will probably remember the auspices of what Parliament can and cannot do. I appreciate that this is something the Minister will have to take away but, while fully agreeing that Parliament cannot be retrospective in the legislation it passes, is it not the case with commercial contracts that there will typically be a requirement for the parties to adhere to the laws that apply to the jurisdiction and to the parties themselves?

Of course, those laws can change in the future. It is not that it is a day one obligation at the time the contract is entered into and then is never checked again. It has to be an ongoing obligation. While I fully understand the point and agree with what the Minister is saying, can he take away that point about the ongoing obligation and the advice? That way, people who have these types of contracts can rely on knowing whether they are or are not in breach of the Act—if, as we all hope, the Bill gets Royal Assent and becomes an Act.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

My hon. Friend sets out a really important point. I am happy to take that away for officials to look at. We want to ensure that companies that currently sponsor sports kits are no longer able to do so, and that sports clubs that have entered into such contracts are not allowed to extend them beyond the dates of their current existence. His brain is much more legalistic than mine, and we do not want the intention behind the law to be circumvented using legal routes that the best lawyers in the land will probably use to try to find a way around it. I will ask my officials to look at that in more detail, because it is a really important point. I hope he accepts that response.

Caroline Johnson (Conservative, Sleaford and North Hykeham)

I understand the point that the hon. Member for Cardiff West is trying to make about a standard clause being that if a contract breaches the law, the contract falls. In clause 125, however, the Minister appears to be giving a company that promotes vapes by sponsorship an opportunity to enter into a contract, before the legislation comes into force, that would be legal afterwards.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

The shadow Minister is right. There will be a narrow window in which that will be possible—[Interruption.] She asks why, and it is because once the Bill receives Royal Assent, it will bring in a two-month window. That is how the law is shaped, to give us the scope to get these measures right and ensure that we make the framework as watertight as my hon. Friend the Member for Cardiff West wants. We believe that that is the proportionate way forward. We cannot make retrospective decisions; if contractual arrangements are under way at Royal Assent, an immediate cut-off could leave the Government open to challenge.

Sarah Bool (Conservative, South Northamptonshire)

I understand that two-month period, but does it also apply to the earlier provisions on the creation of offences relating to publication? If we had some alignment there, neither party could potentially be in breach. That is merely a technical point, however.

The other point—perhaps for when the Minister goes back to the Department—is about force majeure, which the hon. Member for Cardiff West mentioned and which I would like more investigation into. Force majeure concerns acts of God, or something unexpected. I think lawyers would argue that a Government Bill was expected and foreseen, so there would have to be some other form of break clause or right. This debate is getting far too technical for this forum, but it is perhaps something that the Minister can take away.

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

As I said to my hon. Friend the Member for Cardiff West, we will take all this away and look at it in detail, and we will come back to Members. I am just about legally savvy enough to understand the point that the hon. Lady is making that a break clause or something like it would probably be required, because the coming into law of the Tobacco and Vapes Bill on Royal Assent is expected—it is not an act of God, and it will not come as a complete shock and surprise.

Finally, clause 133 allows us to extend all of part 6 to cover devices that enable a

“tobacco product to be consumed”

or

“an item which is intended to form part of such a device”,

but that are not in the Bill.

Sadik Al-Hassan (Labour, North Somerset)

On the conversation we were having previously, does the reference in clause 125(3) to a “specified date” mean that we can have an open discussion with the Secretary of State in the next stage of the Bill’s passage about deciding at what point the provision will apply to the contracts?

Andrew Gwynne (Labour/Co-operative, Gorton and Denton)

I will take that away, because I do not know the answer off the top of my head. In bringing forward regulations, the Secretary of State and I will want to ensure that we get these measures right. That is why there are statutory duties to consult on secondary legislation throughout the Bill. That will ensure that we get these measures and the details right, and that there will hopefully be no ambiguity about the different dates for the offences of printing, publishing and distributing advertisements or about those related to sponsorship deals and the production of the kits that come out of them. With that, I commend the clauses to the Committee.

Written evidence reported to the House