National Assembly for Wales / Cynulliad Cenedlaethol Cymru
Health and Social Care Committee / Y Pwyllgor Iechyd a Gofal Cymdeithasol

 

Public Health (Wales) Bill/ Bil Iechyd y Cyhoedd (Cymru)

 

Evidence from Rhondda Cynon Taf County Borough Council – PHB 93 / Tystiolaeth gan Gyngor Bwrdeistref Sirol Rhondda Cynon Taf – PHB 93

 

HEALTH AND SOCIAL CARE COMMITTEE CONSULTATION ON PRINCIPLES OF THE PUBLIC HEALTH (WALES) BILL

 

Submission of Evidence by Rhondda Cynon Taf County Borough Council

 

Part 2: Tobacco and Nicotine Products Part 2 of the Bill includes provisions relating to tobacco and nicotine products, these include placing restrictions to bring the use of nicotine inhaling devices (NIDs) such as electronic cigarettes (e-cigarettes) in line with existing restrictions on smoking; creating a national register of retailers of tobacco and nicotine products; and prohibiting the handing over of tobacco or nicotine products to a person under the age of 18.

 Do you agree that the use of e-cigarettes should be banned in enclosed public and work places in Wales, as is currently the case for smoking tobacco?

Yes.

The use of e-cigarettes, in particular those that have the appearance of traditional cigarettes, undermines enforcement of smoke-free legislation, not only by local authorities but also those that manage smoke-free places.  Many business owners have banned them for that reason.

The Directors of Public Protection Wales (DPPW) published its views on the availability and use of e-cigarettes in 2013 (DPPW, 2013)which included several examples* where the enforcement of the ban on smoking in enclosed public places had been undermined by claims of the use of e-cigarettes.We are aware that local authorities have had legal actions fail because offenders claimed they were using e-cigarettes. 

Examples: Cardiff County Council instigated a prosecution against a taxi driver for smoking in his vehicle. The defendant pleaded not guilty on the basis that he was smoking an e-cigarette and not a “real” cigarette. The matter proceeded to Court where the defendant was found not guilty despite the alleged offence being witnessed by an Enforcement Officer.

Powys County Council has also experienced difficulties with enforcement, having lost a court case against a taxi driver who as part of his defence in Court suggested he may have been using an e-cigarette. The Court found the defendant not guilty despite the investigating officer’s witness statement.

Similar enforcement difficulties have been experienced by Caerphilly CBC, Wrexham CBC and Swansea CBC where taxi drivers have been witnessed smoking in their vehicles but Enforcement Officers have been unable to prove whether it was a tobacco product or an e-cigarette. These cases demonstrate that where an individual is witnessed contravening the ban on smoking in a wholly or substantially enclosed public place they can simply claim that they were smoking an e-cigarette and it is extremely difficult for enforcing authorities to prove otherwise, thereby compromising the enforcement of the ban.

A key issue here is that the ban on smoking in public places has been very successful and is almost entirely self-policing by the public.  E-cigarettes pose a real threat to that self-policing. 

E-cigarettes also undermine the ability of managers of premises to enforce smoke free places, leading to many businesses banning them.  Our officers that visit business premises on a regular basis, often hear concerns from owners and managers about confrontation when dealing with people “vaping”.  Some vapers argue “it’s not against the law”.

We believe that the use of e-cigarettes in public places can help “normalise” smoking, and can introduce others into the habit of smoking. See later.

There is uncertainty over the potential adverse health implications associated with e-cigarettes and despite recent studies suggesting some benefit to those quitting smoking the efficacy of e-cigarettes as an aid to smoking cessation is not entirely clear. It is therefore appropriate to take a precautionary approach to the risks associated with e-cigarettes. Currently people in Wales can breathe clean air in offices, shops, pubs and other public places and work environments.  We don’t want to see a backwards step towards potentially polluted air.

Further evidence in support of the above can be found in the ‘State Health Officer’s Report on E-Cigarettes’ (January 2015) (California Department of Public Health).

http://www.cdph.ca.gov/programs/tobacco/Documents/Media/State%20Health-e-cig%20report.pdf

The executive summary says:

While there is still much to be learned about the ingredients and the long-term health impacts of e-cigarettes, this report provides Californians with information on e-cigarette use, public health concerns related to e-cigarettes, and steps that can be taken to address the growing use of these products. The following are key highlights from the report:

 

E-Cigarette Use

• In 2014, teen use of e-cigarettes surpassed the use of traditional cigarettes for the first time, with more than twice as many 8th and 10th graders reporting using e-cigarettes than traditional cigarettes. Among 12th graders, 17 percent reported currently using e-cigarettes vs. 14 percent using traditional cigarettes.

• In California, adults using e-cigarettes in the past 30 days doubled from 1.8 percent in 2012 to 3.5 percent in 2013. For younger adults (18 to 29 years old), e-cigarette use tripled in only one year from 2.3 percent to 7.6 percent.

• Young adults are three times more likely to use e-cigarettes than those 30 and older.

• Nearly 20 percent of young adult e-cigarette users in California have never smoked traditional cigarettes.

 

Health Effects of E-Cigarettes

• E-cigarettes contain nicotine, a highly addictive neurotoxin.

• Exposure to nicotine during adolescence can harm brain development and predispose youth to future tobacco use.

• E-cigarettes do not emit water vapor, but a concoction of chemicals toxic to human cells in the form of an aerosol. The chemicals in the aerosol travel through the circulatory system to the brain and all organs.

• Mainstream and second hand e-cigarette aerosol has been found to contain at least ten chemicals that are on California’s Proposition 65 list of chemicals known to cause cancer, birth defects, or other reproductive harm.

 

Heightened Concern for Youth

• The variety of fruit and candy flavoured e-cigarettes entice small children who may accidently ingest them. Even a fraction of e-liquid may be lethal to a small child.

 

• E-cigarette cartridges often leak and are not equipped with child-resistant caps, creating a potential source of poisoning through ingestion and skin or eye contact.

• Calls to poison control centres in California and the rest of the U.S. have risen significantly for both adults and children accidently exposed to e-liquids.

• In California, the number of calls to the poison control centre involving e-cigarette exposures in children five and under tripled in one year.

 

Harm Reduction Claims and Myths

• There is no scientific evidence that e-cigarettes help smokers successfully quit traditional cigarettes.

• E-cigarette users are no more likely to quit than regular smokers, with one study finding 89 percent of e-cigarette users still using them one year later. Another study found that             e-cigarette users are a third less likely to quit cigarettes.

 

Unrestricted Marketing

• In three years, the amount of money spent on advertising e-cigarettes increased more than 1,200 percent.

• E-cigarette advertisements (ads) are on television (TV) and radio where tobacco ads were banned more than 40 years ago. Most of the methods being used today by e-cigarette companies were used long ago by tobacco companies to market traditional cigarettes to kids.

• Many ads state that e-cigarettes are a way to get around smoking bans, which undermines smoke free social norms. Various tactics and claims are also used to imply that these products are safe.

• The fact that e-cigarettes contain nicotine, which is highly addictive, is not typically included in e-cigarette advertising.

 

In Conclusion

California has been a leader in tobacco use prevention and cessation for over 25 years, with one of the lowest youth smoking rates in the nation. The promotion and increasing use of e-cigarettes threaten California’s progress. These data suggest that a new generation of young people will become addicted to nicotine, accidental poisonings of children will continue, and involuntary exposure to second-hand aerosol emissions will impact the public’s health if e-cigarette marketing, sales and use continue without restriction. Additionally, without action, it is likely that California’s more than two decades of progress to prevent and reduce traditional tobacco use will erode as e-cigarettes re-normalise smoking behaviour.

 

 What are your views on extending restrictions on smoking and e-cigarettes to some non-enclosed spaces (examples might include hospital grounds and children’s playgrounds)?

We are of the opinion that smoking should be discouraged in all public places, in particular those locations where there are children or vulnerable people. These include:

·         Playgrounds

·         School grounds & their immediate vicinity

·         Hospital & medical facility grounds

·         Places promoted to children (e.g. “petting farms”, fairgrounds and family centred leisure parks).

 

There is a need for Fixed Penalty Notice powers which should be consistent with existing provisions.  In drafting such provisions there is a need to consider that law currently places a responsibility on the person in control of premises to prevent smoking (e.g. hospital grounds) and that local authorities’ usual enforcement approach is against the “person in control of premises” for permitting smoking.  (Under the Health Act 2006 “It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.”)

If current restrictions are extended, then it is essential that local authorities receive additional funding to support this work. Receipts from enforcement should be returned to local authorities to further support enforcement and education work in this area.

The additional work likely to arise as a result of an extension in the ban to include e-cigarettes and also to prohibit smoking and the use of e-cigarettes in other non-enclosed places is difficult to predict but may be significant.

We appreciate that the ‘smoking ban’ has, to date, been largely self-policing.

This will have been assisted by the fact that health risks associated with smoking and in turn the inhalation of second hand tobacco smoke are well known and understood.  As a result smokers (and the public in general) will appreciate the purpose of the ban and support compliance expectations.

While there are reasoned arguments for extending the ban to include e-cigarettes and to cover certain non-enclosed places, it is foreseeable that smokers will be less understanding of, and compliant with respect to, restrictions on their use of e-cigarettes in the absence of ‘proven’ health concerns and where they feel that their use of such devices is key to them quitting smoking.  Similarly, there is likely to be less public concern for the use of e-cigarettes, for the same reasons, and accordingly less social pressure on users not to use them in contravention of any ban.

This distinction may create some/significant resistance towards compliance, which would in turn necessitate a significant increase in resources to ‘police’, compared to the current smoking ban.   

This should be taken into consideration in resourcing this work.

 Do you believe the provisions in the Bill will achieve a balance between the potential benefits to smokers wishing to quit with any potential disbenefits related to the use of e-cigarettes?

Yes. 

Our key concerns are the potential for e-cigarettes to undermine the enforcement of smoke free legislation; intentionally or inadvertently promote or normalise smoking; and the potential impact upon smoke free environments.  

We are concerned that there is a real potential for e-cigarettes to intentionally or inadvertently promote smoking amongst those who currently do not smoke.  In particular we feel there is a need to make every effort to deter young people from becoming smokers.

 

  Do you have any views on whether the use of e-cigarettes renormalises smoking behaviours in smoke-free areas, and whether, given their appearance in replicating cigarettes, inadvertently promote smoking?

Yes. 

We take the view that anything that has the appearance of smoking helps “normalise” smoking and therefore promotes smoking behaviour and culture.  We also question whether the term “inadvertently” is appropriate.  For example, we are not aware that there is any technical reason why e cigarettes need to glow or emit a vapour.

We are also concerned by the nature of e-cigarette advertising; we note the reappearance of 1950’s style marketing of tobacco products.

Workplaces have worked hard to implement the smoke free premises legislation and the use of e-cigarettes undermines this work.

We are concerned that e-cigarettes encourage young people to think that smoking is acceptable and therefore has the potential to act as a gateway to both e-cigarettes and tobacco based products.

Data relating to smoking behaviour in Wales leads us to conclude that we cannot afford to step back from promoting smoke free behaviour and the health and societal benefits associated with that approach.

 

  Do you have any views on whether e-cigarettes are particularly appealing to young people and could lead to a greater uptake of their use among this age group, and which may ultimately lead to smoking tobacco products?

Yes we feel they are.  We feel every effort must be made to prevent young people developing nicotine addiction or smoking behaviours.

Worryingly, e-cigarettes have been witnessed being displayed for sale with sweets, at child height, at the checkout in large stores.

Some e-cigarettes utilise scented or flavoured refills that may be attractive to younger users, which is a particular concern if combined with the highly addictive properties of nicotine. Some of these are branded in ways that may be particularly attractive to younger users, such as “Gummy Bear, Cherry cola and Bubble Gum”.

Some products are being packaged and marketed in a way that is closely associated with that of conventional cigarettes.  For example, we are not aware that there is any technical reason why e-cigarettes need to glow or emit a vapour. We are also concerned by the nature of e-cigarette advertising; e.g. consistent with the 1950’s style marketing of tobacco products.

Many of these factors reinforce the association with conventional tobacco cigarettes and may normalise smoking related behaviour.    

 

 Do you have any views on whether restricting the use of e-cigarettes in current smoke-free areas will aid managers of premises to enforce the current non-smoking regime?

Yes.  A number of licensed premises have independently introduced bans on the use of e-cigarettes within their premises in recognition of the difficulty they cause their staff in applying the smoking ban within their premises.

Our colleagues that visit business premises on a regular basis, often hear concerns from owners and managers about confrontation when dealing with people “vaping”.  Some vapers argue “it’s not against the law”.

The proposed legislation in smoke-free places should apply equally to tobacco based products and all forms of e-cigarettes.

 

 Do you have any views on the level of fines to be imposed on a person guilty of offences listed under this Part?

The power to issue Fixed Penalty Notices and other enforcement provisions need to be consistent with other smoking legislation, and the fines need to be set at such a level as to be a deterrent to (re)offending. Receipts from enforcement/Fixed Penalty Notices should be returned to local authorities to further support enforcement and education work in this area.

 

  Do you agree with the proposal to establish a national register of retailers of tobacco and nicotine products?

 

Yes. We support the proposal.

 

 Do you believe the establishment of a register will help protect under 18s from accessing tobacco and nicotine products?

The introduction of a register will provide an additional control on the availability of tobacco; a register would contain detailed information on those people and premises from which tobacco can be sold legitimately. Furthermore it would restrict access to the trade to those people and premises where tobacco should not be sold. It will be easier for enforcement officers to identify those premises where tobacco is permitted to be sold, which will in turn assist with the enforcement of underage sales and the display ban.

The success of such a measure would be dependent on the legislation including provisions to control access to the register such as a “fit & proper persons” or “suitable persons” test. This is explored further in response to subsequent questions.

If a register is to be established it needs to cover all those that manufacture, distribute and sell tobacco products.  We feel that having a register only for the end retailers is not comprehensive and will not cover other parts of the tobacco chain that feed the habit including those under age.  An offence should be created where tobacco products can only be sold, distributed, etc to those registered.

We note that section 29(5) provides that ‘A registered person who fails, without reasonable excuse, to comply with section 25 (duty to notify certain changes) commits an offence’. We are concerned by the use of the phrase ‘reasonable excuse’:

 

a)    Firstly, as it is out of step with the more robust due diligence offence common to most current consumer protection legislation, i.e. the two limbed all reasonable precautions and all due diligence defence. There is concern that with section 29(5) as currently worded, individuals failing to notify changes to the register will be able to evade enforcement action. There will be no definition of what is reasonable and so these explanations would need to be tested in court with associated wasting of resources.

 

Use of the well established two limbed due diligence system would enable enforcement officers to assess the adequacy of an individual’s defence based on tried and tested case law, well before a case has to enter the court system

 

b)    Secondly, the very use of the word ‘excuse’ in section 29(5) sends out quite the wrong message to the trade, and there is a danger that the current wording will encourage individuals simply to ‘come up with an excuse’ in the expectation that this will be acceptable. 

 

 

 Do you believe a strengthened Restricted Premises Order regime, with a national register, will aid local authorities in enforcing tobacco and nicotine offences?

Yes.  The proposed link to restricted sales orders (RSOs) and restricted premises orders (RPOs) under the Children & Young Persons Act are welcome. However, we see it as essential that the range of offences triggering an RPO is extended to include all tobacco related breaches, for example the supply of illegal (counterfeit and non-duty paid) tobacco,  tobacco labelling offences, non-compliance with the tobacco display ban; and not just underage sales. It is hoped that these matters will be addressed through the proposed power for Welsh Ministers to make regulations under section 12D of the Children and Young Persons Act and the range of offences triggering an RPO extended accordingly.

However, our experience of “Registers” introduced under other legal provisions suggest that their efficacy can be limited if they are not also accompanied by robust enforcement powers. Some registers are merely administrative or informative.

Local authority enforcement officers will need effective powers to ensure that the register has the desired effect.  These need to include the power to restrict access to the register and to remove persons from the register where there has been a relevant infringement of the law, including offences concerning underage sales.  We feel that there should be a provision to consider suitability of a retailer - whether the retailer is a “fit & proper” person. For example, whether a retailer been convicted for the sale of alcohol, solvents or other age restricted products to minors. The section 24 provision that an application to register will not be granted if an RPO or RSO is already in place goes some way towards this, but of course does not take account of the selling to minors of other age restricted products.

We welcome the section 23(2)(g) clarification that in addition to sellers of tobacco and nicotine products with a High Street presence, those supplying via online, telephone and mail order channels will be required to indicate this on the register. However, it is unclear from the wording of section 22(1) whether the requirement to register applies only to those based in Wales rather than those outside Wales supplying to customers in Wales, i.e. ‘The registration authority must maintain a register of persons carrying on a tobacco or nicotine business at premises in Wales’.  

 

We are disappointed with the section 23(3) definition of a “tobacco or nicotine business” as being a business involving the sale by retail of tobacco or cigarette papers or nicotine products. Limiting the scope of the register to retail would be a lost opportunity to regulate throughout the supply chain.  The illicit supply and sale of tobacco has been identified as a growing concern by Trading Standards in Wales.  A register must not inadvertently add to the problem of illicit trade in cigarettes. The penalties of failing to register therefore need to be robust.  We emphasise that the definitions of “business” need to be carefully considered to encompass not only legitimate traders but also those persons who are trading illegally in tobacco from domestic premises.   We feel it should also include online suppliers.  Effectively the provisions must apply to anyone who is selling tobacco products in Wales.

 

We support the need for robust and proportionate penalties for offences and proposed powers of entry (to retail premises) or the ability to seek a warrant (for domestic premises).  These are obviously vital.  We also support the need for powers to seize tobacco goods in all relevant premises including those that are not registered.

 

 What are your views on creating a new offence for knowingly handing over tobacco and nicotine products to a person under 18, which the is legal age of sale in Wales?

We support the proposals which would bring tobacco products into line with alcohol sales. 

 

 Do you believe the proposals relating to tobacco and nicotine products contained in the Bill will contribute to improving public health in Wales?

Yes.

Smoking remains the single greatest avoidable cause of death in Wales (PHW, 2012). The introduction of the ban on smoking in enclosed public spaces in 2007 has been hugely successful in reducing exposure to environmental tobacco smoke and in strengthening public awareness and attitudes towards it.   However, reducing the prevalence of smoking, remains a key health priority.  Protecting young people from the effects of smoking and deterring young people from taking up the habit are particularly important.  Therefore we welcome the proposals and additional powers to help control the availability of tobacco and its potential health impact.

 

 

Part 3: Special Procedures Part 3 of the Bill includes provision to create a compulsory, national licensing system for practitioners of specified special procedures in Wales, these procedures are acupuncture, body piercing, electrolysis and tattooing.

 What are your views on creating a compulsory, national licensing system for practitioners of specified special procedures in Wales, and that the premises or vehicle from which the practitioners operate must be approved?

We agree that there is a need for a licensing regime that requires approval; the current system is outdated, inadequate and fails on many levels e.g. automatic registration, no competency criteria for the operator, no hygiene standards relating to the premises, difficulty in dealing with unregistered operators etc. We believe that the current legislation does not adequately protect the public. Environmental Health Officers are relying on legislation that is not made specifically for the purpose of tackling illegal operators.

 

The legislation will cover the whole of Wales and will create continuity throughout Wales that will also be of benefit to the industry.

We support the proposals to regulate for special procedures including the creation of a direct offence of failing to register, a full set of enforcement powers including powers of entry, seizure, prohibition, etc to enable the effective regulation of illegal operators.

 

We have the following concerns regarding existing provisions:

 

 

We agree with the concerns of the Chartered Institute of Environmental Health (CIEH) that many procedures are being done by people with little if any knowledge of anatomy, infection control or healing processes (CIEH, 2014).

We would offer the following observations on the proposed regulations:

       Level 3 fine (£1,000) is too low to act as a meaningful deterrent. The sunbed legislation, which is similar in nature, includes a fine of up to (£20,000); this would be a more appropriate sum. Given the amounts of money that many operators can make, such an amount may not discourage the unlicensed or irresponsible operators.

       In determining whether to grant a licence a local authority should be able to consider whether the applicant is a “fit and proper person” and such a test should be included (akin to the tried and tested procedures for taxi licensing).  The test should permit the LA to take into account “any other information” (beyond the “relevant offences” listed in the draft bill) in determining that question.  The current proposals do not offer sufficient safeguards.

       We would be opposed to grandfather rights for existing traders.  Officers from another local authority have only recently dealt with a high profile public health incident in South Wales which related to a long-standing operator.