Introduction

56. Primary and secondary legislation governs the sale of tobacco products to children, prohibits the sale of oral snuff,[119] governs the warnings to be carried on packets, stipulates maximum tar yields, and regulates the dimensions of notices exhibited in retail premises. The Health and Safety at Work etc Act 1974 requires employers to ensure so far as is reasonably practicable the health, safety and welfare of their employees. Finally a combination of legislation and voluntary agreements have regulated the extent to which tobacco products can be advertised (see below paragraph 80).

57. Historically, the regulation of tobacco products has been largely by means of voluntary agreements. Gallaher's summary of the various voluntary agreements relating to tobacco products extends to four pages and lists seventeen such agreements covering additives, tobacco substitutes, marketing, labelling, tar yields, and sports sponsorship.[120]

58. In written evidence, Imperial gave us their view that "There is already substantial regulation controlling the production and marketing of cigarettes. There is no lack of control".[121] Citing regulation of tar and nicotine yields and additives, and "numerous voluntary agreements concerning ... promotion", Mr Wilson of Gallaher described the tobacco companies as being "subject to a very high degree of regulation in many aspects of ... commercial life".[122] Evidence from public health groups presented a very different view of the extent of regulation of tobacco products. In its recent report Nicotine Addiction in Britain the RCP suggested that tobacco products "have enjoyed an unprecedented degree of freedom from the safety regulations that apply to virtually all other food or drug products available in Britain".[123] The Faculty of Public Health Medicine described current regulatory frameworks as "wholly unsatisfactory":

"There are no EU regulations that require tobacco companies to reduce or control the concentration of specific harmful chemicals in tobacco smoke, other than the single European Union directive governing the maximum tar yield per cigarette."[124]

Similarly, Mr Clive Bates, Director of ASH argued:

"Tobacco products ... do not fall conveniently into any pre-existing regulatory framework such as for pharmaceuticals or food and drink ... We can see the way pharmaceuticals are regulated incredibly tightly. Every single claim, every single ingredient, has to be backed up by very substantial trials, evidence and justification presented to a sceptical and arduous regulator. Tobacco products have very complicated designs and very sophisticated engineering and they face none of those kinds of regulations ... They are difficult to regulate ... so you need to do something from scratch. Sadly, governments round the world have not stepped up to this challenge."[125]

Mr Paul Lincoln, a director of the now-disbanded Health Education Authority said that in his view voluntary agreements had not worked and had "been breached in many ways". It was for this reason that he favoured statutory regulation.[126]

59. Our view is that the current regulation applying to tobacco products is entirely inadequate. By an accident of history, the huge health risks of tobacco only became clear well after the practice of smoking had become culturally entrenched. Below we examine the adequacy of the regulation of additives (paragraph 147). We also examine the paradox whereby nicotine replacement products are subject to strict regulation whereas tobacco products are subject only to very limited regulation.

60. We suggested to DoH officials that it seemed curious that drugs were regulated by the Medicines Control Agency and that food stuffs now fell under the aegis of the Food Standards Agency (FSA), while tobacco appeared to be subject to no serious regulation. The Chief Medical Officer told us that he was not aware of any proposals to incorporate tobacco products into the work of the FSA when its jurisdiction was being determined.[127] Mr Tim Baxter, the Team Leader of the Tobacco Policy Unit, also pointed out to us that tobacco products are specifically excluded from the terms of the Consumer Protection Act 1997, although "provision existed for secondary regulations to control tobacco products".[128] Our reservations appear to be mirrored by the general public. The majority of those questioned by the Consumers' Association (67%) agreed with the statement that "the government should do more to discourage smoking".[129]

61. Sir Alexander Macara, former chair of the BMA council, told us that he felt that one reason that the Government was afraid of introducing regulatory reform was "a terror about being accused of being nannies or health fascists".[130] We take the view that if the Government fails to take the sort of direct regulatory action we recommend below as a consequence of its anxiety not to be seen to be 'nannying', it would be failing in its responsibilities.

Measures to prevent sales to children

62. The sale of tobacco to children was first controlled by the Children's Act of 1908, which made it illegal to sell cigarettes to children under 16 years of age. This has been updated a number of times, most recently in 1991 with the passing of the Children and Young Person (Protection from Tobacco) Act. Current legislation proscribes the selling of any tobacco product to persons under the age of 16, requires the provision of warning statements regarding under age sales on retail premises and provides for enforcement action by local authorities.[131]

63. Although these laws have prohibited sales to anyone under the age of 16, there is clear evidence that many youngsters have little difficulty in buying tobacco.[132] The General Household Survey reveals that "nearly two thirds of people who had smoked regularly started before they were 18, and well over a third started before they reached the age of 16".[133] The Secretary of State told us that he did not know "the average age that people start smoking in this country".[134] We asked if the Department had commissioned any recent research on why children start smoking and if they had weighted each factor to assess its importance. Again, the Secretary of State said that this had not been done, although he told us he thought it probably needed to be.[135] We believe that the Department should urgently commission comprehensive research relating to the age at which children start smoking, the reasons they begin, continue and quit smoking, the relationship between pack size and consumption by children, and the sources from which children obtain cigarettes. We believe that the Tobacco Regulatory Authority we propose below at paragraph 189 would be the appropriate body to commission and analyse such research.

64. Notwithstanding the need for more research, we do know that children are most likely to use independent retailers to obtain their supplies. The following table from the 1998 Office for National Statistics (ONS) Report Smoking, Drinking and Drug Use among Young Teenagers indicates the usual source for cigarette purchases and emphasizes the significance of small, independent retailers:

ONS Table 5.12

* Percentages total more than 100 because many pupils gave more than one answer.

65. The most recent figures in England and Wales for the number of offenders cautioned, defendants prosecuted and convicted and average fine given for offences suggests that there is considerable scope for improvement in measures to prevent youth access to tobacco products:

Number of offenders cautioned, defendants prosecuted and convicted and average fine given for offences relating to the sale of tobacco to persons aged under 16,[136] England and Wales, 1994-98[137]

66. Whilst our remit does not extend to Scotland we are obliged to note that the situation there is worse still. Legal obstacles (see below paragraph 73) have meant that no successful prosecutions have been brought since the passing of the 1991 Act.

67. These figures make depressing reading. According to the Secretary of State the maximum permissible fine for these offences is £2,500; the average fine levied is, however, currently less than a tenth of that figure. Even though illegal purchases must be taking place on thousands of occasions each day, there are fewer than three convictions per week.

68. The policy stance of the tobacco companies, in their evidence to us, was clear and unequivocal in its opposition to children smoking. They insisted that they regarded smoking as an activity only for informed adults, and that the extent of smoking amongst children represented a very serious problem which required urgent action. They also detailed the various measures they themselves, either individually as companies or through their trade bodies, had taken to combat child smoking.

69. The tobacco industry is strongly in favour of greater use of proof of age cards. Mr Wilson of Gallaher and Mr Broughton of BAT told us that their companies actively supported and endorsed proof of age schemes.[138] Imperial and Philip Morris pointed to the TMA's support for the photo-identity Citizen's Card, which acted as a proof of age.[139] In addition both Philip Morris and R J Reynolds suggested that it would be helpful if the minimum age for purchase of tobacco products was raised to 18 years of age.[140] Several of the companies drew attention to campaigns they had supported both financially and operationally to deter retailers from selling to children. These included the "No Excuses" scheme run in cooperation with the National Federation of Retail Newsagents which aimed to stop retailers selling to children.[141] (We discuss in the next section the implications of the companies' marketing strategies for sales to children.)

70. To stop accidental breaches, shopkeepers need help to identify under age customers. The Secretary of State told us that he thought that proof of age schemes needed to be examined carefully. He felt that the sheer multiplicity of proof of age schemes led to confusion and that it would be advantageous if the various schemes could be integrated and co-ordinated.[142] We agree. We believe that a much more widespread use of proof of age cards would reduce the incidence of retailers unwittingly selling tobacco products to children. We think it would be helpful if the Government could approve those photo-identity proof of age cards it regards as reliable and useful. Such cards could then bear an appropriate marking to indicate that they belonged to a Government approved scheme.

71. Deliberate breaches need to be treated extremely seriously. The fact that smoking is so much part of every day life, and that the vast majority of smokers start as children can make the problem seem less important. However, in reality tobacco is as addictive as heroin and cocaine, as we discuss below, and kills one in two of its lifelong users; selling it to children is as reprehensible as selling them illegal drugs, and strong measures are needed to stop it. These must comprise high detection and conviction rates, combined with meaningful penalties. Detection of those illegally selling tobacco to youngsters is the job of trading standards officers, and we believe they need to be given clear instructions, definite targets and dedicated resources. They should also be made accountable for the success of their operations and ensuring shopkeeper compliance.

72. The Secretary of State told us that some local authorities ignored their responsibilities to carry out regular enforcement procedures. One very effective measure that had been used by some authorities was to send children, operating according to strict guidelines and instructions, into retailers to see whether they would be sold cigarettes.[143] Yet only just over half the local authorities employ this measure. FOREST described the use of such methods as "agent provocateur activities ... ominously reminiscent of Orwell's 'Junior Anti-Sex League".[144] Their assessment strikes us as absurd. We would regard the use of trained and supervised children as essential if the retailers of tobacco to youngsters are to be flushed out. We believe it is deplorable that so many local authorities have failed in their responsibilities to deter under age tobacco sales. Those not undertaking regular enforcement procedures should be named and shamed.

73. In Scotland it is impossible to use this approach at all. Legal guidance from the Scottish Office prevents children being used in test purchase cases. The intention is to protect children from a potentially stressful experience; ironically, however, it means that offending retailers are effectively immune from prosecution, and that children are instead being exposed to a major public health hazard. We regret the fact that the Scottish Office has not modified its guidance, and call on the Secretary of State to make appropriate representations to achieve a uniformity of approach towards tackling sales of tobacco products to children.

74. The policy failure on youth access to tobacco results from both inadvertent and deliberate law breaking. This was recognized in the White Paper, which promised to draw up an enforcement protocol with local authorities to tackle both issues. We welcome this - the terms of the Children and Young Persons (Protection from Tobacco) Act need to be greatly strengthened - but we feel that the protocol will need to be strongly worded, and backed by both adequate resources and severe penalties for non-compliance, if it is to have any effect. We also note that, despite "lengthy discussions" having taken place, no such protocol has yet been agreed. With this in mind, it is our view that Government cannot simply shift the blame for lack of enforcement on to local authorities, trading standards officers and magistrates. It is essential that the Government issues clear guidelines and quickly develops effective protocols to ensure more test purchases take place and more convictions are secured.

75. During our visit to Tyne and Wear Health Action Zone we were told by a trading standards officer that magistrates were often reluctant to issue tough penalties to retailers selling cigarettes to children.[145] We recommend that magistrates should be actively encouraged to pass deterrent sentences by means of guidance from central Government. However, we also believe that conventional mechanisms to punish offending retailers have been wholly inadequate. Tobacco sales are an important source of income for a typical corner shop. Not only do they generate profit in their own right, they also increase sales of other items such as confectionary or newspapers which smokers tend to buy along with their cigarettes. Set against this pattern of purchasing, fines averaging around £250 - and falling rather than rising in the most recent year for which figures are available - will have little impact. So we believe that more radical change is needed.

76. One possible way to enhance deterrence, would be to introduce a system of 'negative licensing'. Rather than requiring all retailers to be licensed, this would simply forbid sale by those who have infringed the law. We believe that this would act as a potentially powerful deterrent. It would also be appealingly appropriate in that the punishment would fit the crime - "shopkeepers who sell to children can't be trusted to retail tobacco responsibly, therefore should not be permitted to do it at all". Such a system would also, we believe, act as an incentive for retailers and those aged 16 and over to involve themselves in proof of age schemes. However, perhaps the most attractive feature of negative licensing is that it would not require a new or extensive bureaucracy to support it. Existing local licensing boards could implement it as and when convictions occur. Alternatively, the Department might wish to assess the advantages of introducing a comprehensive licensing system for all retailers of tobacco, which would give consistency with the arrangements for the sale of alcohol.

77. We believe that the measures set out in this and the previous section will bring about significant reductions in the numbers taking up smoking. The tobacco industry's public stance on children's smoking is explicit: they see tobacco use as an adult activity, do not endorse underage sales and, and in some cases support an increase of the legal age to 18. On the other hand, as noted above, most smokers start as children and complete prevention of child access to the product would have serious repercussions for their profits. The companies' response to the proposals made here will help establish where their priorities really lie.

120   Ev., pp200-203. Back

121   Ev., p.226. Back

122   Q596. Back

123   Ev., p.186. Back

124   Ev., p.641. Back

125   QQ179-80. Back

126   Q113. Back

127   Q95. Back

128   Q96. Back

129   Ev., p.508. Back

130   Q338. Back

131   Ev., p.4. Back

132   See J. Dunmore, Protecting children from tobacco: Enforcement of Tobacco Sales Legislation 1992-93. A Report by Parents against Tobacco; C Smith, "Smoking and Young People: Some Recent Developments in Wales", Health Education Journal, 50:1, pp.8-11. Back

133   GHS 1998, p.121. Back

134   Q1304. Back

135   Q1303. Back

136   Offences under Section 7 of the Children and Young Persons Act 1993 as amended by Section 1 of the Children and Young Persons (Protection from Tobacco) Act 1991. Back

137   Official Report, 20.03.00, col. 463w. Back

138   Q1045 Back

139   Ev., p.222; Ev., p.237. Back

140   Ev., p.228. Back

141   See eg Ev., pp. 161, 190 and 222. Back

142   QQ1316-17. Back

143   The guidelines are set out in Home Office Circular 17/1992 and require, for example, the child to be accompanied by an officer at all times, to be trained, to tell the truth and not to work in areas where he/she is likely to be recognized. Back

144   Ev., p.267. Back

145   Q1313. Back