Policy responses and statements

Name of organisation:

Scottish Parliament

Name of policy document:

Proposed Tobacco Sales Licensing (Scotland) Bill - Smoking and the Bandits - tackling rogue traders and under-age tobacco sale

Deadline for response:

15 February 2008

Background: Christine Grahame MSP proposes to introduce a bill in the Scottish Parliament to enable effective enforcement of the minimum age at which customers can be sold tobacco products. The bill proposal is worded as follows: "Proposal for a bill to introduce licensing of tobacco sales".

On 1st October this year, the Scottish Government increased the minimum age for the purchase of tobacco from 16 to 18 in line with the rest of Great Britain. While this move is to be welcomed, an age increase on its own is unlikely to do much to restrict the availability of cigarettes to the under-18s. Surveys show that when the minimum age was 16, children as young as 13 had little difficulty in gaining access to cigarettes, with many buying them from local shops.

If we are serious about tackling under age smoking, we must enable far greater enforcement of existing laws than is currently taking place. One way for this to happen is for us to introduce a system of licensing for tobacco sales.

Tobacco sales licensing schemes have been successfully introduced in a number of other countries, notably the United States, Singapore, Canada and Australia. Licensing schemes fall into one of two categories: positive and negative licensing. Under a positive licensing scheme, retailers are obliged to apply for and be granted a licence before they can legally sell tobacco. A negative scheme does not require a licence to be held, but as for positive licensing, the right to sell tobacco can be suspended or withdrawn if a retailer sells or supplies tobacco products to under-age customers. While negative licensing requires less administration and is therefore cheaper to operate, a positive licensing scheme sends a much more powerful message to the retailer and is likely to be far more effective in addressing under-age tobacco sales. Whichever model is adopted will deliver significant long term savings.

This consultation paper is an important early stage in the development of a parliamentary bill that seeks to introduce a licensing system for tobacco sales in Scotland.

COMMENTS ON
SCOTTISH PARLIAMENT
PROPOSED TOBACCO SALES LICENSING (SCOTLAND) BILL: SMOKING AND THE BANDITS - TACKLING ROGUE TRADERS AND UNDER-AGE TOBACCO SALES

The Royal College of Physicians is pleased to respond to the Scottish Parliament on this legislative proposal and consultation. Given the evidently high level of illegal sales of tobacco to children and young people, there is a clear need for swift and accessible justice in this area.

The College is a member of the Scottish Coalition on Tobacco (SCOT) and commends the detailed responses provided by both SCOT and ASH Scotland to the Scottish Parliament.

In answer to your concerns:

1 What concerns, if any, do you have about the enforcement of the minimum age limit for the purchase of tobacco?

Tobacco smoking is the biggest preventable cause of ill health and death in Scotland. An important issue which is part of the Scottish Executive's 'Breath of Fresh Air for Scotland' Action Plan is to prevent as many people as possible from starting to smoke. There is a clear link between the age of starting to smoke and consumption. In addition, there is a link between how early smoking commences and continued smoking into adulthood. Measures to prevent or reduce when people start to smoke are welcome, and one clear opportunity area is to tackle the availability of tobacco to younger people. Increasing the age at which young people purchase cigarettes was a welcome step introduced by the Scottish Government last year, but without enforcement this is not the most effective way of tackling smoking among children and young people. Many surveys have indicated that children as young as 13 have very little difficulty in buying cigarettes. If many young people did not take up smoking until they were aged 18, this would ultimately lead to lower numbers of adults smoking.

The College understands that there is no expectation on producers or retailers of tobacco to restrict availability of legal substances that are hazardous to health unless there is a legal requirement to comply (McTear v Imperial Tobacco Group). At present, the legal situation is that there are few prosecutions of retailers selling to under-age young people which succeed, and it is clear that more robust enforcement is required.

2 What are your views on the effectiveness of a positive licensing scheme ie a scheme requiring all outlets to apply for and receive a licence before tobacco products could be sold?

There is a clear responsibility on the State to take proportionate measures to safeguard its citizens. Positive obligations, if equably applied, proportionate to the threat to health, offer protection and clear assignment of responsibility. Other than a duty on the retailer, there is no duty or obligation for a citizen. Therefore, the obligation on the retailer must be least restrictive, yet effective.

A positive licensing scheme would seem to be the most effective measure to reduce the sale of cigarettes to young people. The most important aspect of this would be a sanction on retailers who breach the licensing laws. Unscrupulous retailers tempted to retail low volume amounts of tobacco may be discouraged from doing so under a positive licensing scheme.

The scheme need not be expensive if it is attached to current procedures, for instance, sale of fireworks, and avoids the complexities of the licensing schemes for alcohol. It would also have the advantage of allowing all premises where tobacco products were sold to be listed and accessible to Trading Standards Officers for monitoring purposes.

3 What are your views on the effectiveness of a negative licensing scheme ie a scheme whereby any outlet is entitled to sell tobacco without a licence and sanctions are only applied once a breach of the law has occurred?

A negative licensing scheme responds only to breaches in the legislation after they are detected and would thus be less effective. It would also be more difficult for Trading Standard Officers to monitor compliance or to undertake test purchasing.

4 Do you have a preference for either a positive or a negative licensing scheme?

For the reasons given, it is important that a positive licensing scheme be introduced.

5 What difficulties, if any, do you anticipate with the proposed legislation?

There will be difficulties gaining acceptance by retailers of new measures that are perceived as restrictive on trade. There may also be difficulties with the definition/identification of retailers in isolated self-service (vending machine) units. Difficulties may arise with enforcement if Local Authorities and Trading Standards cannot provide enough resources for monitoring, test purchasing etc. It may be helpful to make the monitoring of tobacco licensing schemes a statutory function of local authorities to deliver effective enforcement.

6 Who should bear the costs of a tobacco licensing scheme?

The retailers should bear the additional direct costs of the tobacco licensing scheme, although the enforcement costs should be met by government. Charges and fines could be set locally to cover costs.

The retailers’ interests are in higher margin goods and many small retailers use tobacco as an incentive to attract customers. Very small retailers may therefore find the licence is a disincentive to market tobacco at all, which would be a good thing.

7 What sanctions would be appropriate for a retailer found to have sold or supplied tobacco to under-age customers?

Initial sanctions could provide for a fixed penalty and revocation of the licence if the offences continue, perhaps modelled on penalty points for driving offences. It is important that persistent offenders have their licences withdrawn without the need for expensive and time consuming legal proceedings.

8 If fixed penalty fines are applied, what appeals process should be put in place?

This is a matter for those who have expertise in the legal process, and is beyond the scope of our interest.

9 What sanctions should be applied to retailers who repeatedly sell or supply tobacco to under-age customers?

See above for escalation of sanctions. Bearing in mind the potential commercial advantage from acquiring a reputation for illegal sales of tobacco, the upper level of fine should be substantial.

10 Do you have any other comments on the proposal?

In summary, we believe the measures proposed for this Bill are proportionate and reasonable, given the public health benefits of discouraging smoking in children and young people.

11 Can you identify any equal opportunities impacts (either positive or negative) arising from this proposal?

The most positive equal opportunities impact is that all children would be equally protected by this legislative control on under-age purchasing of tobacco. Also, retailers will be able to operate in a fair yet competitive environment. Given a competent scheme of introduction, the administration of such a licensing scheme and enforcement of sanctions should be fair, proportionate and appropriate to the cost of business and profits derived from tobacco sales.

The Royal College of Physicians of Edinburgh warmly endorses the proposals in this draft Bill and commends the measures to the Scottish Parliament.

Copies of this response are available from:

Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.

Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939

[15 February 2008]