The Tobacco and Primary Medical Services (Scotland) Act 2010
A Consultation on Tobacco Draft Regulations
Consultation Report: 23 November 2010
Contents
Section 1: Introduction
Sections 2 to 5 analysis of responses to specific consultation questions:-
Section 2: Moveable Structures and Fixed Penalty Notices Regulations
Section 3: Register of Tobacco Retailers Regulations
Section 4: Prescribed Documents Regulations
Section 5: Display of Warning Statements Regulations
Supplementary information:-
Annex List of consultation questions
Section 1: Introduction
The consultation
1.1 This report presents a summary of the findings of a consultation carried out by the Scottish Government on draft regulations flowing from the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act). The consultation ran from 27 April to 20 July 2010.
1.2 The purpose of the consultation paper "The Tobacco and Primary Medical Services (Scotland) Act 2010: A Consultation on Tobacco Draft Regulations" was to seek the views of stakeholders and members of the public on 5 sets of regulations to be made under the 2010 Act and to afford them the opportunity to influence the detail of the regulations. The 5 sets of regulations are:-
- Display of Tobacco and Prices;
- Registration of Moveable Structures and Fixed Penalty Notices;
- Register of Tobacco Retailers;
- Prescribed Document; and
- Display of Warning Statements.
1.2 In light of the ongoing legal challenge relating to the display ban provisions of the 2010 Act, the Scottish Government is putting on hold meantime finalising the Display of Tobacco and Prices Regulations. This analysis is, therefore, confined to the other 4 sets of regulations.
1.3 The Scottish Government wishes to thank all respondents for taking the time to send us their contributions to this consultation.
Purpose and methodology
1.4 By way of context, the consultation document explained that the policy aim of the 2010 Act and these related draft regulations is to protect children and young people under 18 from the health impact of tobacco use by introducing further controls on the sale and display of tobacco while minimising the impact of new regulation on tobacco retailers.
1.5 All responses received were entered into a database developed in line with consultation questions. A list of the consultation questions relating to the 4 sets of regulations is provided in the Annex. Respondents who answered "yes" and "no" to specific questions were identified and their written response entered under each question. Responses were then analysed by each question and across key respondent categories.
1.6 This report provides some indication of the strength of views on the questions posed within the consultation document on each set of proposed regulations and the key comments and suggestions to emerge. It also provides a summary of views of the proposed regulations and the key themes arising from the responses received. It is not possible, however, to provide a comprehensive list of all the suggestions made by respondents nor to quantify the views expressed as some respondents represent a number of individuals or an organisation. Moreover, many respondents did not respond to all of the questions posed, and some made the same points in response to a number of different proposals.
1.7 Full responses, where respondents have agreed to make their view public, are available on the Scottish Government website:
http://www.scotland.gov.uk/Publications/2010/08/05152919/0
Overview of responses received
1.8 A total of 497 responses was received. These were grouped into broad categories for the purpose of analysis. The table below summarises the numbers and proportions of response by category.
Responses by category
Category | Number (%) | Section 2- 5 |
Health | 29 (6) | 13 |
Local Authority | 12 (2.5) | 12 |
Bulk suppliers | 9 (2) | 1 |
Tobacco retailer representative bodies | 6 | 5 |
Specialist tobacco retailers | 6 | 2 |
Tobacco manufacturers | 5 | 2 |
Vending machine operators | 3 | 1 |
Other | 6 | 2 |
Tobacco retailers | 421(85) | 17 |
Total | 497 | 55 |
1.9 The largest number of responses was from tobacco retailers (421). The format for response from this group included:
- Tobacco Retailers' Alliance postcards (187);
- Tobacco Retailers' Association proforma questionnaires (202); and
- National Federation Retail News (32)
Section 2: Regulation of Movable Structures and Fixed Penalty Notices Regulations
2.1 Consultation Question 1: "Do you agree that retailers selling tobacco from a moveable structure should provide the information set out in the regulations to register for the tobacco sales registration scheme?"
Summary
2.2. The majority of those who expressed a view agreed that retailers selling tobacco from a moveable structure should provide the information set out in the regulations to register for the tobacco sales registration scheme.
Comments/suggested amendments
2.3 Issues flagged up for the Scottish Government's consideration were:-
i) the need to make clear that if a person wishes to carry on a tobacco business outside those areas entered on the Register under Regulation 3(2)(b), they should be required to update their registration to enable them to operate in those areas;
ii) sufficient details should be given to establish the correct trading name and location at which applicants would sell cigarettes so that enforcement and advice can be targeted in the same way as that applicable to static retailers; and
iii) the need to clarify whether all vessels which sell tobacco products should be required to comply with proposals for registering moveable structures and with registration.
Scottish Government response:- The Scottish Government notes the views expressed and believes that the regulations as drafted will provide sufficient information on the Register of Tobacco Retailers to enable retailers selling from moveable structures to be clearly identified to enable them, for example, to be subject to an enforcement regime. In relation to the issues raised at paragraph 2.3 (i) & (ii) above, we would point out that under the provisions of section 20 of the 2010 Act, it is an offence for a person to carry on a tobacco business at premises other than those noted in the person's entry in the Register. Under section 13 of the 2010 Act they are also required to notify Scottish Ministers of certain changes to the information provided on the Register. We can confirm that if tobacco is being sold from a vessel then registration will be required. In practice, at present, the only vessels selling tobacco are ferries which are governed by the Merchant Shipping Act 1995. This will require to be addressed through a different legislative route because regulation of Merchant Shipping Act vessels is reserved to Westminster. We will contact the affected retailers directly regarding this. If non MSA vessels are selling tobacco, they are still required to be registered in terms of the 2010 Act. While the Regulations remain as drafted, we will ensure that these issues are addressed, as appropriate, in the guidance which will underpin the Registration Scheme. |
2.4 Consultation Question 2: "Do you agree that the period in which a notice can be given should be set at seven days?"
Summary
2.5 The majority of respondents who expressed a view agreed that the period in which a notice can be given should be set at seven days.
Comments/suggested amendments
2.6 Key points flagged up for consideration were the need for:-
i) the period proposed in the draft regulations (7 days) to be changed to 10 calendar days or 7 working days to make allowance, for example, for public holidays; and
ii) clarity about how notices should be served, including, for example, where the trader operates from moveable premises.
Scottish Government response The Scottish Government notes the views expressed and believes that the period in which a notice can be given should remain set at 7 days. This period is consistent with similar FPN schemes. In relation to the point highlighted at paragraph 2.6 ii) we believe that the request for clarity on the serving of notices would be best addressed in the guidance which will be made available to enforcement officers. |
2.7 Consultation Question 3: "Do you believe that the levels of fixed penalty notices set out in the regulations are appropriate?"
Summary
2.8 While some had mixed views about the level of fine and the escalator, the majority of respondents who expressed a view believed that the levels of fixed penalty notices set out in the regulations are appropriate.
Comments/suggested amendments
2.9 There was acknowledgement of the fact that the proposed scheme is in line with other fixed penalty schemes in Scotland and that the proposed escalator might deter repeat offenders leading to improved standards in responsible retailing. A few respondents, however, suggested that the level of fines was too high and not consistent with other on-the-spot fines in Scotland. They also questioned the justification for variable levels of FPN and whether this approach was suitable for age-related sales offences given that there was an escalation to banning orders anyhow for offences. Others took the view that the escalator should be greater and perhaps linked more clearly to the standard scale penalty applicable to the offence.
2.10 A specific issue flagged up for consideration was the need for more direction about the representations that can be made to the Council as to why the Fixed Penalty Notice should not have been given which are provided for under paragraph 8(1) of schedule 1 to the 2010 Act, including, for example, how long a person would have to make such representations?
Scottish Government response The Scottish Government notes the views expressed and believes that the level of fines set out in the Regulations are appropriate. In relation to the request for clarification on representations under paragraph 8(1) of schedule 1 to the Act highlighted at para. 2.10, we would propose to address this in the Guidance which will be available for Enforcement Officers. |
2.11 Consultation Question 4: "Do you agree that these proposed regulations set out an effective, proportionate and workable approach?"
Summary
2.12 The majority of respondents who expressed a view agreed that the proposed regulations set out an effective, proportionate and workable approach.
Comments/suggested amendments
2.13 A number of local authority respondents were concerned that the prescribed period of 1 year provided for in regulation 8(3) was too short. This is the period which can be looked back on when determining whether the amount of the penalty should be escalated. It was suggested either that this should be increased to two years making it consistent with the time limits specified in section 15(3)(c) of the 2010 Act relating to tobacco banning orders, or that the number of incidences should be reduced and the incremental fine increased. Some were also confused by the Table 1 of Regulation 8(2) which is intended to demonstrate how the escalator should be applied, and thought it implied that they were expected to undertake 5 visits to premises within the prescribed period.
Scottish Government response The Scottish Government has noted the views expressed and, in light of the issues flagged at paragraph 2.13 above, has concluded that the prescribed period set out in Regulation 8(2) should be increased to two years. This will be regulation 7(3) in the regulations which will be made in Parliament. |
2.14: Consultation question 5: "Do you believe that these regulations are enforceable?"
Summary
2.15 The majority of respondents who expressed a view believed that the regulations were enforceable.
Comments/suggested amendments
2.16 The main issues flagged up for the Scottish Government's consideration were:-
i) the capacity of trading standards more generally to enforce the provisions of the 2010 Act and, more specifically, the new proxy purchase provisions;
ii) the need for enforcement to be proportionate; and
iii) the need for awareness raising among retailers about the new legislative
provisions.
Scottish Government response The Scottish Government notes the views expressed, particularly the concerns about the capacity of trading standards to enforce the law. In terms of the specific issues highlighted at para 2.16 (i) and (ii) , we would point out that Local Authorities have demonstrated very clearly, including through their engagement with the Enhanced Tobacco Sales Enforcement Programme, that they take very seriously the duty placed upon them to enforce tobacco sales law. Their approach to enforcement is, in our view, proportionate with advice and support to businesses on their regulatory responsibilities being given equal priority to enforcement action. We also believe that the introduction of FPNs for tobacco related offences, in line with a UK-wide move to transform the regulatory sanctioning system which provides a more flexible use of sanctions, will help to streamline enforcement activity. As now, however, we will continue to engage closely with COSLA and the Society of Chief Officers of Trading Standards for Scotland, on the enforcement of the 2010 Act. |
Section 3: Register of Tobacco Retailers Regulations
3.1 Consultation Question 1: "Do you agree that retailers selling tobacco should provide the information set out in the regulations to register for the tobacco sales registration scheme?"
Summary
3.2 No clear consensus emerged in relation to this question. In part this was due to the fact that respondents used the consultation as an opportunity to outline their views on the tobacco retailers registration scheme provided for in the 2010 Act rather than strictly to address the question.
Comments/suggested amendments
3.3 A few correspondents flagged up to the Scottish Government the need for consideration to be given to:-
i) reducing the size of the banning order notice at regulation 5(1) (e.g to A3 size poster);
ii) introducing steps to confirm the identify of the registered retailer (e.g. Passport, Photographic Driving Licence or by a notary public), and to verify their home address;
iii) ensuring that the application process is free both now and in the longer-term;
iv) permitting a single application process for both single and multiple site retailers;
v) ensuring that it is possible to apply to the register both on-line and in a paper-based format; and
vi) mounting an awareness-raising campaign to ensure that retailers are fully cognisant with their obligations.
Scottish Government response The Scottish Government notes the views expressed, both for and against the Register of Tobacco Retailers provided for in the 2010 Act. We would emphasise, however, that the question posed in the consultation was in fact about whether retailers should be asked to provide the additional prescribed information proposed in Regulation 3 (i.e. in addition to that already provided for in section 11 of the 2010 Act.) In terms of the specific points highlighted in paragraph 3.3 above, we would point out - i) the dimensions of the Banning Order Notices set out in the regulations are the same as those prescribed for warning notices, and we see no justification for reducing their size; ii) & iii) under the terms of the 2010 Act, there is no scope either for introducing a vetting process for applications or for charging; iv &v) these matters are outwith the scope of the regulations but we can confirm that the register will be set up in a way that facilitates these matters; and vi) an awareness-raising campaign will begin early in 2011. |
3.4 Consultation Question 2: "Do you agree that these proposed regulations set out an effective, proportionate and workable approach?" and Consultation Question 3: "Do you believe that these regulations are enforceable?"
Summary
3.5 The majority of respondents who answered these questions agreed that the proposed regulations set out an effective, proportionate and workable approach and were enforceable.
Comments/suggested amendments
No significant comments or suggested amendments were received in response to this question.
Section 4: Prescribed Documents Regulations
4.1. Consultation Question 1: "Do you agree with the identify cards set out in these regulations?"
Summary
4.2 The majority of respondents who expressed a view agreed that a photographic identity card bearing the national Proof of Age Standards Scheme (PASS) hologram is a satisfactory additional form of acceptable identification for tobacco sales.
Comments/suggested amendments
4.3 While the majority of those who expressed a view backed the use of Young Scot as a PASS accredited card as an alternative for those who do not have a driving licence or passport, the use of another PASS accredited card, CitizenCard, was specifically endorsed by tobacco manufacturers. Health interests suggested, however, that nothing should be done to lend credence to the tobacco industry- supported CitizenCard. A few respondents also emphasised the need, more generally, to talk about "proof of age" rather than 'identity cards'
Scottish Government response The Scottish Government notes that the majority of respondents who expressed a view are content with the draft regulations. In terms of the issues raised at paragraph 4.3, we would emphasise that this is not really a matter for the draft regulations. It should be noted, however, that the Scottish Government will continue to put its weight behind the Young Scot PASS card and that it also has the full backing of the Association of Chief Police Officers in Scotland (ACPOS), Scottish local authorities and leading retailer representative bodies. |
4.4 Consultation Question 2: "Do you agree that these proposed regulations set out an effective, proportionate and workable approach?"
Summary
4.5 The majority of respondents who expressed a view were content with the draft regulations.
Comments/suggested amendment
4.6 There was broad support for the wider measures contained in the 2010 Act such as new offences of underage and "proxy" purchasing to reduce under-age access to tobacco products.
4.7 A few respondents suggested that young adults need to be made aware of the proof- of-age element of the Young Scot card and its addition to the list of acceptable identification.
Scottish Government response The Scottish Governments notes that the majority of respondents who expressed a view are content that the proposed regulations set out an effective, proportionate and workable approach. In relation to the need for an awareness campaign about the acceptability of the Young Scot PASS card as proof of age highlighted at paragraph 4.7, we can confirm that arrangements are in place for Young Scot to undertake a campaign to boost the acceptability and use of the PASS Card. |
4.8 Consultation Question 3: "Do you believe that these regulations are enforceable?"
Summary
4.9 The majority of respondents who expressed a view agreed that these proposed regulations were enforceable.
Comments/suggested amendments
4.10 Specific Issues flagged up for the Scottish Government's consideration were the need to:-
i) consider how the law is applied to internet or postal sales; and
ii) clarify how test purchasing arrangements involving underage volunteers will work in light of the new underage purchase offence.
Scottish Government response The Scottish Government notes that that the majority of respondents who expressed a view are content that the regulations are enforceable. In relation to the issues flagged, we can confirm that:- i) the law applies to all tobacco sales, including remote sales over the internet or through the post, and it is the responsibility of the seller to ensure that appropriate steps are in place to verify the age of the customer by, for example, requiring proof of age either at the point of purchase or when the goods are delivered; and ii) Section 5(2) of the 2010 Act provides that it is not an offence for an authorised test purchaser to buy or attempt to buy a tobacco product or cigarette papers. A Practical Guide to Test Purchasing in Scotland offers detailed guidance to be adopted by local authorities and agencies involved in test purchasing programmes. |
Section 5: Display of Warning Statements Regulations
5.1 Consultation Question 1: "Do you agree with the dimensions of the warning statement as set out in the regulations?"
Summary
5.2 The majority of respondents who addressed this question agreed, many stating that these regulations are a restatement of existing regulations
Comments/suggested amendments
5.3 A few respondents commented that the current requirements were difficult for small shops to comply with due to the size of the notice and the requirements to display other notices for alcohol, cigarettes, spray paints and fireworks. Specialist Tobacconists were particularly concerned about the number of notices required given the nature of their business, the size of their outlets and that the majority of customers are adults over 35 years. The Scottish Government was, therefore, asked to consider reducing the size of the notice to A4 and also to think about a combined underage sales notice.
Scottish Government response The Scottish Government notes that the majority of those who expressed a view are content with the draft regulations. While we have some sympathy with the calls for a rationalisation of such notices, these regulations are not the appropriate vehicle for that. Moreover, the Notices prescribed in the draft regulations are a restatement of existing legislative requirements. It also means that retailers' existing warning notices will comply with the 2010 Act. These Regulations will now be notified to the European Commission under Directive 98/34/EC (the technical standards Directive) before being made in Parliament. |
5.4 Consultation Question 2: "Do you agree that these proposed regulations set out an effective, proportionate and workable approach?" and Consultation Question 3: "Do you believe that these regulations are enforceable?"
Summary
5.5 All respondents who expressed a view agreed that these proposed regulations set out an effective, proportionate and workable approach and that they are enforceable.
Comments/suggested amendments
No specific suggestions for amendments to the regulations were received in response to this question.
ANNEX
LIST OF QUESTIONS
Registration of Moveable Structures and Fixed Penalty Notices Regulations
1. Do you agree that retailers selling tobacco from a moveable structure should provide the information set out in the regulations to register for the tobacco sales registration scheme?
If not what information do you think such retailers should provide?
2. Do you agree that the period in which a notice can be given should be set at seven days?
If not, do you believe that the period in which a notice can be given should be more or less than seven days?
3. Do you believe that the levels of fixed penalty notices set out in the regulations are appropriate?
If not do you believe that the levels should be higher or lower than those set out in the regulations?
4. Do you agree that these proposed regulations set out an effective, proportionate and workable approach?
If not how would you make regulations more effective, proportionate and workable?
5. Do you believe that these regulations are enforceable?
If not how would you make regulations more enforceable?
6. Do you have any other comments on these regulations?
Register of Tobacco Retailers Regulations
1. Do you agree that retailers selling tobacco should provide the information set out in the regulations to register for the tobacco sales registration scheme?
If not what information do you think such retailers should provide?
2. Do you agree that these proposed regulations set out an effective, proportionate and workable approach?
If not how would you make regulations more effective, proportionate and workable?
3. Do you believe that these regulations are enforceable?
If not how would you make regulations more enforceable?
4. Do you have any other comments on these regulations?
Prescribed Documents Regulations
1. Do you agree with the identify cards set out in these regulations?
If not, do you believe that other cards should be added to the regulations or that the card set out in the regulations should not be included?
2. Do you agree that these proposed regulations set out an effective, proportionate and workable approach?
If not how would you make regulations more effective, proportionate and workable?
3. Do you believe that these regulations are enforceable?
If not how would you make regulations more enforceable?
4. Do you have any other comments on these regulations?
Display of Warning Statements Regulations
1. Do you agree with the dimensions of the warning statement as set out in the regulations?
If not, do you believe that the dimensions should be bigger or smaller?
2. Do you agree that these proposed regulations set out an effective, proportionate and workable approach?
If not how would you make regulations more effective, proportionate and workable?
3. Do you believe that these regulations are enforceable?
If not how would you make regulations more enforceable?
4. Do you have any other comments on these regulations?