Dáil Éireann díospóireacht -
Wednesday, 8 Nov 2023

Vol. 1045 No. 2

Public Health (Tobacco Products and Nicotine Inhaling Products) Bill 2023: Report and Final Stages

Deputy David Cullinane

I move amendment No. 1:

In page 9, between lines 27 and 28, to insert the following:

“Review of operation of Act, Act of 2002 and Act of 2015

9. The Minister shall, within 24 months after the passing of this Act, carry out a review of the operation of this Act, the Act of 2002, and the Act of 2015, to also examine:

(a) the regulation of flavouring, packaging, and advertisement of nicotine inhaling products;

(b) the regulation of disposable tobacco products and nicotine inhaling products;

(c) the evidence base for calculating licence fees, the appropriateness of fees which have been set, and potential methodologies for calculating such fees;

(d) issues arising from the implementation of the Acts and attempts to circumvent the Acts, such as proxy purchasing;

(e) the pricing of tobacco products and nicotine inhaling products, including bulk purchasing, and options for standardising tobacco unit prices;

(f) regulating or prohibiting tobacco price lists.”.

I move this amendment for a number of reasons. Primarily, the reason I went for this type of amendment was that like with the previous Bill, I take the view that we have a very good starting point. I very much welcome what the vaping Bill does. We had very lengthy discussion at the pre-legislative scrutiny stage. We did an awful lot of pre-legislative scrutiny on this Bill. There were lots of different stakeholders and people who obviously wanted to have their say, including the Irish Cancer Society and many others as well. Obviously there were a lot of people who had a very keen interest in this. We all want the same thing. We all want people to move away from cigarettes. We want people to smoke less, live longer and all of that. If possible, we do not want people vaping or smoking. That is what we all want in an ideal world. At the same time, there were issues that needed to be addressed and I think a lot of them are addressed in the Bill. However, some are not. I assume the Minister is not going to accept our amendments to some of these areas anyway but at the very least I was hoping he would agree with what I feel would be a better way to approach it. Because of a discussion we had on a previous Bill where we talked about the length of time a review might take, we went for 24 months in this amendment. The logic of it is that some of the areas that we talked about should be subject to a review. They include the regulation of flavouring, packaging and advertisements. Flavouring was one of those issues that got a lot of attention. Deputy Shortall has tabled an amendment, which I will support. My view is that it needs to be looked at it. It was very clear to me in the pre-legislative scrutiny process that there is a strong body of opinion that flavoured vaping is directed at children.

I understand that when we try to come at this from the point of view of banning advertising and all of that, that will play some part in it. I know we discussed this in the past but maybe the Minister could give us an indication as to whether the Department has done more research in this area. What is being cited to us is research coming from the European Union and from other OECD countries that have looked at very similar proposals. They are also looking at the patterns and the research that underpins why children are vaping in the first place, and what the attraction is. We all know the types of flavours that are out there. To any reasonable person, it seems that it is directed at children and trying to get people into vaping. Vaping, as some would suggest from the industry, is a step down from cigarettes, and that is the reason there is flavouring.

It is something that certainly needs to be reviewed. There is an amendment that I will support but at the very least I think we have to be committing to looking at this again in the future. That is similarly the case with regard to the banning of disposable vapes, if it has not already been done; the calculation of fees, once these are established; and the pricing of tobacco products, with particular regard to bulk purchasing. One can see a number of other areas as well. Rather than putting individual amendments down on all of those, my preferred option was that we would pass this Bill and make sure that it does what it does. Then in the future, within 24 months, we would have more time to look at all those issues where there was not agreement, when maybe more research will be done and we can come to more informed decisions, and whether it is this Government or the next Government, they can be looked at again.

Deputy Róisín Shortall

I understand the intent of this, and I agree with the intent but I am concerned about the timescale involved in this. I do not think we have 24 months. The whole issue of vaping among young people has really escalated in the last year or two, and particularly in the last six months. This issue is now coming up at residents' association and community meetings. I am sure everybody is hearing that. It is coming up, first of all, from an environmental perspective. We know that where opinion polling has been done on this, there is huge concern about the environmental impacts of the waste material from disposable vapes being strewn all around streets, parks, green spaces and so on. There is a real difficulty with the disposal of those products because they contain plastic, metal and batteries. There is a very significant environmental impact, and that is one aspect of it.

The other aspect of it, which is of course more important, is that we know vaping is now a gateway to smoking for young people. I was looking at the figures recently with regard to smoking rates for young adults, and they remain steady. They are not reducing at all. Vaping started off as a means of helping people to kick the habit of smoking, and it has become something very different. I do not think we have 24 months to wait and I think we need to act on this much quicker than that. I will speak to my own amendment in a few moments.

Minister for Health (Deputy Stephen Donnelly)

Deputy Cullinane, I think, missed the excitement on Committee Stage.

Deputy David Cullinane

I did.

Deputy Stephen Donnelly

I think he was not available and his colleague came in. There was a lively exchange. The result is that Deputy Shortall's amendment is staying in the Bill. We are not seeking to remove it. It was Deputy Shortall's amendment and it was voted through on Committee Stage. We are proposing to leave it in there. Deputy Shortall has made the point that she feels 24 months is too long. The advice I have is that 12 months might be a bit short but it does not matter. We are leaving it in there. We now have a review clause in that came from the Select Committee on Health, so there will be a review done after 12 months.

If we step back for a minute, we need to understand very clearly what this Bill is going to do, and why we need to get it in very quickly. I know I will have colleagues' support on that. Then I want to speak to the second Bill that we are now drafting, on which a public consultation is starting and which is very cognisant of the excellent work done by the Joint Oireachtas Committee on Health in the prelegislative scrutiny for this Bill.

This Bill is essentially doing three things. It is introducing very strict licensing and increased regulation of the retailers of tobacco and nicotine inhaling products. We have all focused on the vaping side of this but in fact, there are important measures in here for smoking and tobacco as well. First, it introduces strict licensing and increased regulation of retailing of tobacco and vaping. Second, it introduces new restrictions on the sale of both types of product - tobacco and vaping - and restrictions on the advertising of vapes and nicotine inhaling products. Third, it provides additional enforcement powers to the environmental health service for the previous tobacco control Acts. While we have all focused on the vaping part of this, it is both tobacco and nicotine inhaling products that this is moving on.

On the licensing system, a licence will be required for the sale of tobacco and nicotine inhaling products, which includes any element of an e-cigarette, including the liquids. It will have an annual licence that will be required for every premises. The licence fee will be set by the Minister for Health. The minimum licence period should be 12 months. Applications must provide a tax clearance certificate. There are various other pieces to that, and offences are provided.

The piece that we have focused on most, for very good reason, is the second objective of the Bill, which is new restrictions on sale and advertising. The sale of nicotine inhaling products to children is prohibited. That, to me, is the single most important thing we are doing this evening. We all probably agree on that. The sale of both tobacco and vapes by a child is prohibited, except in very limited circumstances. The sale of both types of products by self-service, for example vending machines, is being prohibited. The sale of cigarettes and vapes through vending machines will be prohibited. The sale of both types of products at events for children is prohibited. Advertising of nicotine inhaling products around schools and public transport is prohibited, and advertising of nicotine inhaling products in cinemas is restricted as well. The third part, which we have spent less time on, is around the enforcement tools. We have compliance, prohibition and fixed payment notices. That is what this Bill is doing.

I get the sense that there is very strong agreement around the House that we have to go much further than this with regard to vapes. To that effect, we are drafting new legislation. We are using the report we got from the Joint Committee on Health. We are doing a public consultation, and we are going to move very quickly on point-of-sale advertising. We have to get rid of this situation where people walk into a petrol station or a retailer and they are bombarded with all of these vaping products. We want to look at the colourings, and the fact that these are clearly, to my mind - I think there is broad agreement on this as well - being targeted at children. We are going to look at flavourings. We need to vastly reduce flavourings, and there are options that are just one flavour. In some countries, they have just two flavours, so we are looking at that. Critically, I wanted to include a full ban on single-use, disposable vapes as well.

Not all but many of the issues that Deputy Cullinane is covering in his review will actually be contained within this second Bill, which we are going to bring in very quickly. We have some excellent input from the Joint Committee on Health, and we will do our public consultation. We will draft a Bill. We will then notify the EU. There is a notice period that has to be gone through. We need the draft Bill to do that notification, and then we will push on. In that second Bill, we might well include a review clause on foot of Deputy Shortall's amendment, which is now included in this, and to the effect of Deputy Cullinane's proposed amendment here. That is how I propose we proceed.

Deputy David Cullinane

I certainly do not want to re-enact the drama of that meeting of the Select Committee on Health that I was not at. I had a health appointment that day but my understanding of the confusion was that there was a parallel Bill that was being talked about that the committee was not aware of.

There was some discussion about whether it got it. If I understand what the Minister is saying - I was not at that committee hearing - that parallel Bill would look at point-of-sale advertising, colourings, flavourings, etc. When is it likely that Bill will progress? What is its status? When is that likely to be ready to come before the Oireachtas?

The Minister talked about the flavouring. He mentioned that in other countries there are a smaller number of flavours as opposed to just one. Is that something that is being considered? Are we look at reducing the number of flavours as opposed to just having one? I would certainly support, for environmental and other obvious reasons, a full ban on single-use products. That would be beneficial. Could I get more clarity on when the Minister thinks that Bill will be progressed? It is obviously not ideal that we have parallel Bills. We have a Bill that goes some of the way and a parallel Bill. I am not sure how we ended up in that space. Be that as it may, however, the Minister might answer my question on flavouring. What options are being looked at and what is the Minister's preference in terms of the discussions that are taking place?

Deputy Stephen Donnelly

The public consultation will conclude at the end of this year. We will then move very quickly to drafting. I would like to have a draft for colleagues to look at in March. We have to notify the EU then. There are several months' work involved in that, and then we will move through the House very quickly.

I do not want to pre-empt what comes out of the public consultation, but I am on the record, as I think we all are on this, as saying that we need to be very restrictive. I am deeply concerned, as I know colleagues are, about what is a very intentional and cynical targeting of children. This is the tobacco industry coming in the back door in the context of targeting children.

On Deputy Shortall's point, we have seen a really concerning increase in the number of teenagers vaping. We have clear public health advice on the damage that could be doing both in terms of vaping and also the potential to progress to smoking, which, we know, causes at all manner of damage. As a result, my view is that we should be very restrictive. We should ban single-use vapes outright for health and environmental reasons. We should be very restrictive when it comes to flavourings. Let us look at what is working or not working in other countries. My officials have already done work on that, which they can certainly share with the committee.

In terms of packaging, it is complex. We have already had conversations within the Department. It is complex regarding how we can control that in terms of being in the Single Market and how exactly we do it. We are looking at that as well. Then, as I said, one of the issues for me on which we have to move is the point of sale whereby people are just bombarded with all these carefully designed, very attractive colours and packaging when they are going to get their bread, pay for their petrol or whatever it might be.

An Ceann Comhairle

Is the amendment being pressed?

Deputy David Cullinane

No.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 2 in the name of Deputy Shortall arises out of committee proceedings.

Deputy Róisín Shortall

I move amendment No. 2:

In page 10, between lines 3 and 4, to insert the following:

“PART 2

REGULATION OF NICOTINE INHALING PRODUCTS

11. (1) The Minister shall, within 6 months of the passing of this Act, notify the European

Commission under Article 24(3) of Directive 2014/40/EU of his intention to regulate each of the following:

(a) the sale of disposable nicotine inhaling products;

(b) the flavouring of nicotine inhaling products;

(c) the packaging of nicotine inhaling products;

(d) the advertising of nicotine inhaling products.

(2) The Minister may by regulation, subject to the approval of the European Commission under Article 24(3) of Directive 2014/40/EU, regulate any of the provisions of subsection (1).”.

We all understand the threat and challenge caused by the availability of vaping and the speed with which it has caught on as an activity in its own right, and one that is very attractive to young people because it is being marketed specifically to attract them. It is being marketed in a way that it is disposable, colourful and has sweet-like flavour. It is seen as a fairly cool thing to do among young people. We see the evidence of that all around us. We know this is a phenomenon that is not only very prevalent in this country but right across Europe and further afield. It is contributing to a reversal of the progress we have been making with regard to reducing smoking rates. What is the reason for any delay in acting on this?

Two years ago, we started the pre-legislative scrutiny process. We had briefing from the officials at the Joint Committee on Health. We engaged in extensive consultation and debate on these issues with a whole lot of different interests. We also know that much public opinion has been gauged through various surveys and opinion polls with regard to the public attitude to vaping. There is real concern on the part of parents in particular about the fact that this is now an activity that is very widespread among young people. We know now the whole idea is that what is happening with many of the vaping companies is that they are being taken over by tobacco companies because those companies know this is the route to getting more young people to start smoking. Vapes are not used to prevent people smoking in the main. For more seasoned smokers, let us say, there is a use there. There is no justification for vapes to be disposable. There is no justification for them to be brightly coloured or have particular flavours that mimic flavours of sweets or other flavours that are attractive to young people.

The Joint Committee on Health looked at this in considerable detail and produced a report for the Minister that contains 22 recommendations. The report was sent to him in July of 2022. As a member of the health committee, I have to ask, were we wasting our time in doing that work? What was that about? We were charged with doing pre-legislative scrutiny with regard to legislating to regulate vaping. We sent off the detailed report to the Minister and he came back to us having ignored the vast majority of the recommendations. He produced a Bill, which, in itself, is welcome insofar as it goes, but it is very limited. It precludes the sale of vapes to under-18s. There are major questions about the enforcement of that because there are huge questions about the enforcement of the sale of cigarettes and, indeed, alcohol, gambling and various other things.

We are not good at enforcement. The only justification the Minister has put forward is that he said we are required to notify Europe in terms of any proposed changes to the sale of tobacco products. That is fair enough. However, the Minister had ample time since July 2022 to notify Europe of his intentions to do that and, first of all, produce a comprehensive Bill that deals with all aspects of it - the many and emerging aspects - and provide that notification to Europe to give six months' notice of his intention to legislate. I do not know why he did not do that. I do not know why or when he and his officials were working on a vaping Bill. He did not then have a proper Bill covering all aspects of the matter. He had plenty of notice and plenty of time to do that. I find it very hard to understand why he did not do that. We did our work on the health committee.

It seems that the Minister was not inclined to take on board the recommendations that were made very clearly on the basis of the evidence that was brought before the joint committee. There is any amount of evidence from the Irish Cancer Society, which made a very strong case to the committee regarding flavours, for example, and made the point that this would not hinder adults from using vapes, but it would discourage young people. My amendment is an enabling measure. It states:

The Minister shall, within 6 months of the passing of this Act, notify the European Commission under Article 24(3) of Directive 2014/40/EU [which he is required to do] of his intention to regulate each of the following:

(a) the sale of disposable nicotine inhaling products;

(b) the flavouring of nicotine inhaling products;

(c) the packaging ... [and there is a template there with regard to the packaging of cigarrettes];

(d) the advertising of nicotine inhaling products.

The Minister may by regulation, subject to the approval of the European Commission under Article 24(3) of Directive 2014/40/EU, regulate any of the provisions of subsection (1).”.

I have identified the four key areas, namely, disposable vapes, flavourings, packaging and advertising, in the amendment, so this does not force the Minister's hand but rather enables him to legislate by statutory order, having given notice to the Commission. I urge the Minister strongly to take this on board. He has told us he is preparing legislation. Let us not have a further delay of six months after that. This puts the gun to the Minister's head to a certain extent, but he knows what is needed and there cannot be any further delay to doing what is necessary.

Deputy Stephen Donnelly

I thank the Deputy very much. I acknowledge again the very detailed and valuable work the health committee did in pre-legislative scrutiny on this. There are 22 recommendations in the committee's report. While very important, 11 of the 22 are not really legislative recommendations. For example, commissioning further research, increasing funding for quit services, communicating the harms of e-cigarettes, etc., are all good and amendments I agree with, though not relevant to legislation. There are thus 11 recommendations left from the committee and it is important to say six of those 11 recommendations are contained in this Bill. The charge I think is being made is we have somehow ignored the committee's work, so to be clear, of the 11 recommendations in the report - it was an excellent report - that are relevant to legislation, over half of them are in this Bill and more of them will be contained in the next Bill.

I cannot accept this particular amendment for a few reasons. To be fair to the Deputy, I think the intent is to move the next process, namely, the second piece of legislation, along very quickly. While I agree with that, there are technical issues specific to this amendment, though I fully agree with the intent behind it. The first is the timing procedure for notifying the Commission. It is under Directive (EU) 2015/1535, which is also known as the technical standards directive. What we send to the Commission is the draft law, when it is in a position where we can still amend it, and we do not have that yet. As soon as we have that draft law we will send it to the EU, as we did this Bill. Deputy Cullinane asked when we might have that draft to look at and we are saying around March of next year, so not that long. The second reason I cannot accept amendment No. 2, though I fully accept the intent of it, is the proposed section 11(2) appears to be an enabling provision to allow for the regulation of issues relating to nicotine-inhaling products and again these would have to be notified at an EU level under the technical standards directive. That would have the consequence, unintended I know, of delaying this Bill.

We are probably all agreed we want this Bill in before Christmas. I certainly do and am sure colleagues do as well, so let us crack on. Let us get this Bill done, make it illegal to sell vapes to children and bring in all the other provisions we went through earlier. The second Bill is again cognisant of the health committee's work and includes the recommendations from it. We are going with that and it is not something that is sort of fadó fadó, as this is something the public consultation has happened on. Pre-legislative scrutiny is essentially already done and we will move to heads of Bill immediately once the public consultation is completed.

Deputy Róisín Shortall

I do not deny that what the Minister has done in this Bill is welcome, insofar as it goes, but it does not even half do the job. This is primarily about banning the sale of vapes to those aged under 18 years. We all hope that will work, but there are so many other aspects to this. Those aspects have been pointed out by many different organisations and by the health committee. They were pointed out to the Minister 16 or 17 months ago, as I said, yet he did not take them on board. He is now saying he is going to do it at some point. He might have draft legislation in March and then notify the Commission, which will take another six months. We are then into September or October of next year and I just wonder who will be Minister for Health at that stage and who will be in government at that stage. It is very much kicking the can down the road, and that is how it is seen. The Minister has an opportunity now to state very clearly what he intends to do by accepting this amendment that allows him to notify the Commission of his intention to do something. He has told us work is under way, so on the basis of that draft, as soon as possible, within six months he should be notifying the Commission. If it approves what the Minister intends doing, then this amendment would enable him to implement those changes regarding disposable vapes, flavourings, packaging and advertising and he could do that by statutory instrument. If the Minister is committed to doing this as quickly as possible, then we do not know why there has been a 17-month delay as that is rather unfortunate when this is such a pressing issue. I urge the Minister to accept this amendment and speed up and short-circuit the whole process.

Deputy Stephen Donnelly

I think the Deputy and I are broadly in agreement on what needs to happen. The EU process is not about notifying the EU of our intention to legislate. We must notify it that we are legislating and that this is the draft legislation so it can look at it. We are going to do that as soon as we have the draft legislation. I expect we will all be broadly agreed on what we are doing with that legislation. We are certainly drawing from the committee's work on that. It is the draft law that is notified, not the intention, and the clear advice I have is the unintended consequence of this amendment would be a delay to the Bill before us. While we can argue about the second Bill and the timing, and we all want this done as quickly as possible, I hope we are all agreed we want this Bill in law before Christmas. For that reason I cannot accept the amendment, because the advice I have is the proposed section 11(2) would have the unintended consequence of delaying the Bill for several months.

Amendment put:

The Dáil divided: Tá, 49; Níl, 67; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Carthy, Matt.
• Clarke, Sorca.
• Connolly, Catherine.
• Conway-Walsh, Rose.
• Crowe, Seán.
• Cullinane, David.
• Daly, Pa.
• Doherty, Pearse.
• Donnelly, Paul.
• Ellis, Dessie.
• Funchion, Kathleen.
• Gannon, Gary.
• Guirke, Johnny.
• Healy-Rae, Danny.
• Howlin, Brendan.
• Kenny, Martin.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• McNamara, Michael.
• Munster, Imelda.
• Murphy, Catherine.
• Mythen, Johnny.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Laoghaire, Donnchadh.
• Ó Murchú, Ruairí.
• Ó Snodaigh, Aengus.
• Quinlivan, Maurice.
• Ryan, Patricia.
• Shanahan, Matt.
• Shortall, Róisín.
• Smith, Duncan.
• Stanley, Brian.
• Tóibín, Peadar.
• Tully, Pauline.
• Whitmore, Jennifer.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Butler, Mary.
• Cahill, Jackie.
• Cannon, Ciarán.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Cowen, Barry.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donnelly, Stephen.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Feighan, Frankie.
• Flaherty, Joe.
• Flanagan, Charles.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Harris, Simon.
• Haughey, Seán.
• Healy-Rae, Michael.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Matthews, Steven.
• McAuliffe, Paul.
• McConalogue, Charlie.
• McEntee, Helen.
• McGrath, Michael.
• McGuinness, John.
• McHugh, Joe.
• Moynihan, Aindrias.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Stanton, David.

Staon

Tellers: Tá, Deputies Róisín Shortall and Cian O'Callaghan; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

An Ceann Comhairle

For the information and convenience of Members, I advise them that consideration of the Public Health (Tobacco Products and Nicotine Inhaling Products) Bill must finish by 7.07 p.m. at the latest, at which time we will go straight into the voting block. There is one amendment remaining.

Deputy David Cullinane

I move amendment No. 3:

In page 27, to delete lines 35 and 36 and substitute the following:

"(a) in such a manner and form as may be prescribed by regulations made by the Minister, which shall ensure that, where permitted, communications directed at consumers which include tobacco prices shall list such products in alphabetical order and shall not show any product or price in a manner that is more or less prominent to any other on the communication, including but not limited to such matters as text size, text colour, text shade and font used,”.

This amendment relates to the tobacco price lists. Where flavouring is advertised, the fonts are often bigger. That is not in keeping with the spirit of the Bill. I know from talking to the Minister privately that this is more of an enforcement issue. If possible, perhaps the Minister could provide me with a note on what those issues are. If he does so, I would be happy to withdraw the amendment.

Deputy Stephen Donnelly

I thank the Deputy and fully agree with his intent. The issue is that there is a belief that a small number of retailers are using the pricing list as a proxy for advertising. It is covered in other legislation. It is an enforcement question. I am happy to provide the Deputy with a note in that regard.

Amendment, by leave, withdrawn.

Bill received for final consideration and passed.