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Seanad Éireann díospóireacht -
Tuesday, 28 Nov 2023

Vol. 297 No. 7

Public Health (Tobacco Products and Nicotine Inhaling Products) Bill 2023: Committee Stage

Sections 1 to 10, inclusive, agreed to.
SECTION 11
Amendment No. 1 not moved.
Section 11 agreed to.
Sections 12 to 30, inclusive, agreed to.
SECTION 31

I move amendment No. 2:

In page 20, lines 28 to 33, to delete all words from and including "(1) Subject" in line 28 down to and including line 33 and substitute the following:

"It shall be an offence for a person to advertise a nicotine inhaling product in a cinema."

This is a very important amendment from my two colleagues. I am sure everyone agrees that it makes sense. The cinema is a place where we should not be bombarded with vaping advertisements. I hope the Minister will consider accepting this amendment.

I thank the Senators for tabling the amendment, which is a prohibition on the advertisement of nicotine inhaling products in the cinema. It is designed to remove the exemption for films that are directed at persons over 18 years of age. The prohibition was modelled on a similar provision in the Public Health (Alcohol) Act, which contains an exemption for films classified for persons over 18. At this time the evidence does not suggest that nicotine inhaling products are more harmful to health than alcohol, although obviously that is something we will keep under very close review.

In addition, I am absolutely determined to eliminate the uptake of nicotine inhaling products by children and minors, those under 18. I recognise that some adults use e-cigarettes to quit smoking. Our recently published survey shows some useful information on that. If I were to accept this amendment, it would require notification to the European Union under the technical standards directive, which would incur a three-month delay, or possibly a six-month delay, to the enactment of the Bill.

What I would say to the two Senators who have tabled the amendment is that I applaud the direction of travel they are going in, which is to restrict advertising on these products. We all know that plenty of people under 18 attend movies that are rated over 18. I fully appreciate the intent of the Senators but what we do not want to do is delay the Bill for three months or six months, based on the European processes. We have opened a public consultation on all aspects of this measure. I will return with a second Bill next year and that might be somewhere this measure could be looked at.

My point is somewhat irrelevant to this amendment but it is relevant to advertising. In a lot of period movies or those set in the early part of the last century, westerns or whatever else, there appears to be product placement. I wonder if there is evidence of involvement or investment by the tobacco industry in some of these films or dramas. Is that being looked at or discussed on a European basis as well? I will not name any films or dramas but in those set in the 1950s it is commonplace to see people smoking. We also seem to be seeing a lot of it now on modern television.

There are only four amendments for us to consider, which says something about the Bill, although it depends where one is coming from. I listened to the Minister's response to Senator Clifford-Lee. Am I to take it that, in principle, he is in favour of this amendment? He explained his point about the measure delaying the Bill. That is fair enough, but will the Minister be proactive in reintroducing this measure in future legislation? He talked about another Bill that he might be able to work it into? Is the Minister in support of the central theme of this amendment? He might just clarify that for me.

I thank Senators for the points they made. With regard to product placement, I am watching a particular series at the moment where there is very obvious product placement going on. In that case, it is alcohol. I take the Senator's point but I will have to revert to him on the specific point he raises.

In response to Senator Boyhan's question, what I am saying is that we have a second Bill coming and there is a consultation open.

I do not want to pre-empt where it goes, but what I can say is that the reason we are moving this Bill through very quickly is to ensure we ban the sale of vapes to children and anyone under 18 very quickly. We are also bringing in some important additional tobacco controls in this legislation.

There is a second Bill, which we are beginning to draft now. It will be informed by the public consultation, the pre-legislative work the health committee did and, indeed, the Second Stage debate on this Bill in the Seanad. The second Bill will address things like flavouring, packaging and the use of single-use, disposable vapes. We will need to see the outcome of the public consultation and take legal advice on exactly what we can do within the Single Market rules, but one of the things I would like to see is the introduction of further curbs on point-of-sale advertising. We are all aware that when we go to get our petrol or into a newsagent, in some places, we are just bombarded by this very colourful, attractive and overwhelming point-of-sale advertising for vapes. I certainly want to take a look at that.

Could we go further in terms of an advertising ban and apply this not just to movies rated for under 18s but to those for all ages? I am not committing to doing that, but I am committing to keeping an open mind on the issue. I understand where the amendments are coming from. In private discussions with the proposers, they have made the point to me that, as we all know, there are plenty of people under 18 at movies that might have an 18 rating in a cinema. I think part of the intent of these proposed amendments is to try to provide additional protection there as well.

That is all well, good and dandy, and I understand it, but this is a very simple ask. I refer to the wording in this regard, namely, "That it shall be an offence for a person to advertise a nicotine inhaling product in a cinema". It does not get any simpler than that. The Minister for Health does not need a lecture from me or anybody else about the importance of the context of advertising and nicotine. He is either in favour of the principle or he is not.

The Minister said he is not going to give a commitment on this. That is his prerogative and I respect it but this is a very simple matter. I can understand the Minister deferring it, and that he does not want to delay bits and pieces of the legislation, but all I am trying to ascertain from him is whether he considers this proposed change to be obvious and if he can indicate whether he fully supports it. Implementing this provision in primary legislation is another day's work, but it is a very simple ask.

I appreciate the Minister’s response. It was proportionate. The passage of this legislation as quickly as possible should be the priority of everybody in these Houses. I understand the Minister not wanting to pass comment while the public consultation process is under way. I appreciate that and hope that in the fullness of time, we will see this issue encapsulated in the second Bill, which I hope will be brought forward as quickly as possible upon completion of the public consultation process.

I thank the Senators. Broadly, we are all on the same page in what we are trying to achieve. On the point concerning advertising, I am keeping an open mind on this. It is not something I want to commit to here because I do want to be seen to be directing where this public consultation process goes. It is important for us to say that the advertising of vapes or e-cigarettes is already prohibited on television and radio, online and in printed publications, except in trade publications. There is already a very broad provision in this regard in the legislation, so would it be a quantum leap to say age does not matter and these products cannot be advertised online, in most printed publications, on television and radio or in cinemas? I do not think that would be a big leap, so I will certainly stay very open to it.

Amendment, by leave, withdrawn.
Section 31 agreed to.
Section 32 agreed to.
NEW SECTION

Acting Chairperson

Amendments Nos. 3 and 4 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 21, between lines 10 and 11, to insert the following:

“Regulations relating to sale and supply of tobacco products

33. The Minister may make regulations—

(a) prohibiting or restricting a person from selling or supplying, or causing to be sold or supplied, tobacco products at a cheaper price on a per-cigarette basis, in cigarette packs above the standard 20 pack, in a manner likely to encourage the consumption of tobacco products in a harmful way through bulk discounting, and

(b) that larger packs of cigarettes exceeding the standard pack of 20 cigarettes may not be sold at a discounted price, relative to the unit price of a standard pack of 20 cigarettes, by a margin of more than 5 cents.”

This proposed amendment would allow the Minister to make regulations to stop tobacco manufacturing companies from bulk discounting cigarettes. As the Minister knows, bulk discounting is a technique used to drive the sales and consumption of cigarettes. Bulk discounting means that when the quantity or size of a pack of cigarettes increases, the cost per individual cigarette decreases. This provides consumers with a more cost-effective option when purchasing cigarettes in large quantities.

I will give the Minister an example. A pack of 20 cigarettes costs €16.75 but a pack of 33 cigarettes costs €25.60. On a strict pro rata basis, this latter product would retail at about €27.63. The consumer, it is suggested, is saving €2.03. The Exchequer, however, is losing both VAT and ad valorem tax revenues on this promotional price, which is determined by the tobacco company. The retailer cannot sell the product at a higher price than that set. The purpose of this proposed amendment is to give the Minister the power to make regulations to stop the discounting of carcinogenic tobacco products. It also allows the standard practice of rounding, that is, if a cigarette product costs €16.43, for example, the retailer can round the price to €16.45. Rounding is standard practice for the retailing of tobacco products. The Minister will be aware of it.

Before I go any further and comment on the rationale of my second proposed amendment, I should say that I had a discussion with traders, small and medium retailers, from all over this country, representing thousands of them. The genesis of this proposal is coming from them. I am a conduit for them and I put that on the record. I support what they are doing. I do not promote, and I do not act as a conduit for, anything I do not fundamentally believe in myself. This concern is shared by a substantial number of these local and national retailers, some of which are multiples. I set out this context during the debate on the previous Stage of the Bill and it is on the record.

I originally had four amendments but I compounded them into two for this debate. Amendment No. 4, my second amendment, is to ban the sale of big boxes of cigarettes, that is, packs of 20. Figures from the Revenue Commissioners show that the sales of large boxes of cigarettes have increased year on year since their introduction in 2012. They currently account for 35% of all cigarette sales in Ireland. New empirical evidence shows that these big boxes are a driver of sales and consumption, which is contrary to the Government's stated policy of eliminating smoking by 2025. This has direct negative consequences for addiction and health outcomes, which are surely a priority for the Minister for Health. Clearly, this is really a motivating factor.

The Minister knows the story. Clearly, he has taken advice and has come here today with his mind made up. I am not suggesting that by standing up here, I am going to cause all this to change. I am not a fool and nor is the Minister, but this is an important amendment. I gave a commitment to the retailers that, despite not being confident the Minister would accept this amendment, I would call a vote on these two amendments. They are important. People know they have engaged with politicians in both Houses in relation to this issue. Sometimes it is about accountability. When we say we are going to do something, then we either do it or we do not. If the Minister does not support this amendment, that is fine. That is democracy and we live in a parliamentary democracy. I would like to think, however, that he would be very favourably disposed to what I consider to be two very reasonable amendments. I do not think he would have any difficulty in principle with them. I await his response.

I thank the Senator for tabling these amendments. While I cannot accept them, I support the Senator's intention here in respect of reducing the prevalence of smoking. I looked into this matter in some detail and it was the subject of discussion, I believe, on Second Stage here and certainly during previous Stages in the Dáil and the health committee. Senator Boyhan is not alone in what he is proposing in these amendments. If my understanding of his intention is wrong, he can correct me.

My understanding is that it is to remove a potential price incentive for people to buy more cigarettes. This is on the basis that if they buy more cigarettes they will smoke more cigarettes. I certainly agree with the intention. We looked into this in some detail and it turns out that it has been tried before. In fact it was tried 21 years ago in the tobacco Act 2002. Unfortunately it was not accepted by the European Union. I have the relevant provision in case Senators want to look at it. While the exact wording is not exactly the same as Senator Boyhan's amendment, it is similar. The relevant provision is section 38(9) of the 2002 Act. The original provision had to be repealed. It was replaced by a more limited measure that prohibited promotions such as "buy one, get one free". This was done to comply with the EU regulations.

I cannot accept the amendment but I entirely agree with the intent. There are two additional things to consider. I have discussed this with the public health team in the Department. It has taken a look at the literature and said the evidence is not yet established, which is counterintuitive for me anyway, that packs of 30 versus packs of 20 lead to more per person consumption. Intuitively we would all think that they would do so but it is interesting that the advice I have from the Department is that the evidence is not yet there. One of the reasons our tobacco control approach is working is that it is evidence-based. The evidence may emerge. To be honest, instinctively and intuitively I agree with Senator Boyhan.

The second reason goes back to the EU directive. If we were to change this we would be looking at a delay of three months or maybe six months. I appreciate that if Senator Boyhan wants to call a vote on it this is exactly what he will do. I hear him. We looked into this in some detail and the advice I have is that as the amendment is currently tabled we would have to repeal the provision, which is not something we want to do. It would be an unenviable position to be taken to court by these tobacco companies and have to change our law on that basis or at a direction from the EU.

On the basis of these amendments being tabled, I will ask the Department and the officials to see whether there is any flexibility, subject to EU regulations. We are on the same page. Essentially what we are saying is that we do not want retailers using price differentials or promotional activities to encourage smoking. I thank Senator Boyhan for his amendments and contribution.

I thank the Minister. He said it; instinctively and intuitively he agrees with the principle and the rationale I set out for the amendments. In 2022 the University of Bristol carried out extensive research, which I will send him in the morning. I am sure the officials have it, or at least they should have it if they were preparing and were aware of the extent to which we would be discussing the matter today. The University of Bristol clearly identified there is a major increase in the consumption of cigarettes where there are larger sized cigarette packets.

I hear what the Minister is saying but it is important that we make a decision here. It will not stop the Minister from proceeding, which is what he has indicated he wishes to do. He has given a commitment that he will ask the officials to look into this and see whether there is further research or evidence on it. Deputy Donnelly is the Minister for Health and he does not need a lecture on the damage caused by smoking and cigarettes and the impact they have on our people's health. He knows it more than anyone. He sees it first hand every day in terms of the impact of smoking on the lives of our young people and people of all ages. These are well thought out relevant amendments. Ultimately the Minister will pass the Bill. He does not have to enact all parts of the legislation, that is his call, but for my part I am committed to pursuing these amendments through the House.

I support Senator Boyhan. In a professional capacity, and I will not elaborate further, I became aware of the issue of large packets of cigarettes. I had never heard of a 30-pack of cigarettes. I thought it was joke.

I had never heard of it.

It was news to me as I do not smoke. The people selling these products do not want them. It is the manufacturers who are pushing them. There was a time when there was a ban on smaller packets. Woodbines used to be available in packets of five and ten.

And you could break up the packets.

There was a ban on selling them individually. It cannot be right that they are uncontrolled and offered for sale in larger containers, which can only encourage more smoking. It can only have this effect.

Amendment put:
The Seanad divided: Tá, 9; Níl, 18.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Clonan, Tom.
  • Flynn, Eileen.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Ruane, Lynn.
  • Wall, Mark.

Níl

  • Ahearn, Garret.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Clifford-Lee, Lorraine.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • McGahon, John.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Victor Boyhan and Michael McDowell; Níl, Senators Robbie Gallagher and Joe O'Reilly.
Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and the Whip of the Fianna Fáil Group has notified the Cathaoirleach that the Fianna Fáil Group has entered into a voting pairing arrangement with Senator Higgins for the duration of her maternity leave.
Amendment declared lost.
Sections 33 to 44, inclusive, agreed to.
NEW SECTION

I move amendment No. 4:

In page 27, between lines 12 and 13, to insert the following:

“Amendment of section 38 of Act of 2002

45. Section 38 of the Act of 2002 is amended by the substitution of the following subsection for subsection (1):

“(1) It shall be an offence for a person to sell cigarettes by retail other than in a packet containing 20 cigarettes.”.”.

Amendment put:
The Seanad divided: Tá, 9; Níl, 19.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Clonan, Tom.
  • Flynn, Eileen.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Ruane, Lynn.
  • Wall, Mark.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • McGahon, John.
  • O'Reilly, Joe.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Victor Boyhan and Michael McDowell; Níl, Senators Robbie Gallagher and Joe O'Reilly.
Pursuant to Standing Order 57A: Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and accordingly has not voted in this division. The Whip of the Fianna Fáil Group has notified the Cathaoirleach that the Fianna Fáil Group has entered into a voting pairing arrangement with Senator Higgins for the duration of her maternity leave.
Amendment declared lost.
Sections 45 to 51, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 5 December 2023.
Cuireadh an Seanad ar fionraí ar 6.27 p.m. agus cuireadh tús leis arís ar 6.45 p.m.
Sitting suspended at 6.27 p.m. and resumed at 6.45 p.m.
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