Government plans to address children vaping

Approximate read time: 20 minutes

On 2 September 2024, the House of Lords is due to discuss the following question for short debate:

Lord Storey (Liberal Democrat) to ask His Majesty’s Government what plans they have to address the number of children using vaping products.

The previous Conservative government expressed concern that electronic cigarettes (e-cigarettes) (also known as vapes) “have become highly appealing products for children because of the wide range of flavours, bright colours, use of cartoons and highly visible points of display in shops”.^[1] It said it had a duty of care to protect children from the potential harms of nicotine and dependence on e-cigarettes. The then government announced a number of measures to address this problem to be taken forward in the Tobacco and Vapes Bill, but this fell at the end of the last parliament. The Labour government has announced similar plans to target the promotion of e-cigarettes and announced its own tobacco and vapes bill in the 2024 King’s Speech.^[2] Both the previous and current government plans also included the gradual introduction of a ban on the sale of tobacco products.

The vaping industry in the UK has responded to the previous government’s plans. For example, the Independent British Vape Trade Association (IBVTA) welcomed the previous government’s plans to phase out tobacco use but argued that “smokers need proven pathways off their addiction” and that “over-regulating popular adult vape products could deny adult smokers a proven smoking cessation tool”.^[3] It also stated that “as an industry, we recognise that youth vaping needs to be tackled and we stand-ready to work with government and towards this and we welcome wider consultation on the industry”. However, it expressed concern that “existing legislation should be properly enforced, and responsible manufacturers and retailers properly supported, rather than reaching for the blunt instrument of policy measures that could have damaging consequences”.

Organisations outside the government have also expressed concern about the use of e-cigarettes by young people. For example, in a call to action on e-cigarettes, the World Health Organization (WHO) said:

The promotion of e-cigarettes has led to marked increases in e-cigarette use by children and adolescents, with rates exceeding adult use in many countries. Further, to date, the commercialization (sale, importation, distribution or manufacture) of e-cigarettes as consumer products has not been proven to have had a net benefit for public health. Instead, alarming evidence on their adverse population health effects is mounting.^[4]

The Royal College of Paediatrics and Child Health (RCPCH) supported the previous government’s Tobacco and Vapes Bill. Professor Steve Turner, RCPCH president, said “by stopping children and young people from becoming addicted to nicotine and tobacco we decrease their chances of developing preventable diseases later in life, and will protect children from the harms of nicotine addiction”.^[5]

1. What are vaping products?

E-cigarettes allow the user to inhale nicotine in a vapour rather than a smoke.^[6] This is known as vaping. This briefing refers to the devices used to vape as e-cigarettes, but sometimes the devices are referred to as vapes. Nicotine is the primary addictive component of tobacco cigarettes. E-cigarettes work by heating a liquid (called an e-liquid) that typically contains nicotine and flavourings among other chemicals, but e-cigarettes are also sold that do not contain nicotine. E-cigarettes do not burn tobacco and do not produce tar or carbon monoxide, two of the most damaging elements to health in tobacco smoke.

It is illegal to sell nicotine-containing e-cigarettes to anyone under the age of 18 or for adults to buy them on behalf of under-18s.^[7] There is also a “loophole that allows the vaping industry to give free samples of vapes to children in England”.^[8] The previous Conservative government announced plans to close this loophole and make a number of other provisions to reduce the appeal of e-cigarettes to young people alongside a progressive ban on the sale of tobacco. These plans did not progress before the end of the previous parliament (see section 5 for further information). The current Labour government has also announced plans to introduce legislation to “progressively increase the age at which people can buy cigarettes and impose limits on the sale and marketing of vapes”.^[9]

The NHS has described e-cigarettes as “far less harmful than cigarettes” but “not completely risk-free”, and has said that “the long-term risks of vaping are not yet clear”.^[10] It has said that the developing lungs and brains of children and young people make them more sensitive to the effects of vaping.^[11] The free drug advice service, Frank, has also stated that some disposable vapes on the market are illegal and do not meet UK safety standards:

Nicotine vaping products are covered by regulations to protect users, including maximum nicotine strength and bans on certain ingredients. But some disposable vapes on sale are illegal and don’t meet UK quality and safety regulations. They might look like the real thing, but they aren’t so it isn’t possible to know what’s actually in them. Non-nicotine vapes are not covered by the same regulations as nicotine vapes and are not without risk.^[12]

Whilst there is concern about the use of e-cigarettes among young people, the NHS has stated that e-cigarettes can be used to help people quit smoking:

Many thousands of people in the UK have already stopped smoking with the help of an e-cigarette. There’s evidence that they can be effective.

A 2021 review found people who used e-cigarettes to quit smoking, as well as having expert face-to-face support, can be up to twice as likely to succeed as people who used other nicotine replacement products, such as patches or gum.^[13]

2. How many children are estimated to use them?

The public health charity Action on Smoking and Health (ASH) has published data on the use of e-cigarettes by young people from its ‘Smokefree GB youth’ survey, collected by the polling company YouGov.^[14] The survey found that in 2024, 18% of children aged 11 to 17 had tried vaping, which amounted to 980,000. It said that the rates of vaping among children in this age group appeared to have stabilised after a period of increase:

[…] although our survey suggests the rapid rise in youth (aged 11-17) vaping since the pandemic has stabilised in 2024, it is not yet clearly declining. And although the vast majority (81%) of children aged 11–17 have never tried vaping, over a third of those who have tried vaping have never smoked. Furthermore, children’s awareness of promotion continues to rise. The big increase in the use of disposable products has happened concurrently with higher levels of youth use from 2021 to 2023.^[15]

The survey also examined why people took up vaping:

Half of never smokers who vape (51%) say they vape ‘just to give it a try’ compared to a quarter of those who have ever smoked (24%). Among never smokers the next most popular reasons for vaping were ‘other people do it so I join in’ (18%) and ‘I like the flavours’ (11%). Stress or mental health was the main reason given for vaping by a higher proportion of ever smokers (10%) than never smokers (2.8%).^[16]

ASH argued that the health impacts of vaping did not appear to be a concern for children when deciding whether to try vaping:

For the second year in a row most children aged 11–17 (58%) wrongly believe that vaping is about the same or more harmful than smoking. This includes nearly half (46%) of those who have tried vaping, so believing vaping is harmful does not appear to be putting children off trying vaping.^[17]

The survey found that more children were becoming aware of the promotion of vaping:

There has been a significant growth in awareness of e-cigarette promotion over recent years, with more than half of all children aged 11–17 (55%) aware of promotion in shops, up from 37% in 2022. Three in ten children (29%) were aware of online promotion. Only one in five (19%) say they never see e-cigarettes being promoted, down from 31% in 2022.^[18]

Referring to the giving out of free samples, ASH said “it is of concern that 2.9% of children aged 11–17 who have ever tried vaping report that their first vape was given them by an e-cigarette company”.^[19]

3. Current Labour government policy on children using e-cigarettes

The Labour Party’s 2024 manifesto included a commitment to ban vapes from being branded and advertised to appeal to children. The manifesto stated that this would “stop the next generation from becoming hooked on nicotine”.^[20]

In the 2024 King’s Speech the new Labour government announced that it would introduce a tobacco and vapes bill.^[21] A bill of the same name and containing similar policies was introduced under the previous Conservative government but fell before the end of the previous Parliament (see section 5 for further information).

The Labour government’s bill would include provisions to implement the manifesto commitment. The bill would:^[22]

• Introduce a progressive smoking ban to gradually end the sale of tobacco products across the country (including herbal smoking products and cigarette papers). Children born on or after 1 January 2009 will never be able to legally be sold cigarettes, preventing the next generation from becoming hooked on nicotine. The majority of smokers start in their youth (4 in 5 start before the age of 20) and are then addicted for life.
• Stop vapes and other consumer nicotine products (such as nicotine pouches) from being deliberately branded and advertised to appeal to children meaning they are only available as a tool to help smokers quit. The bill would provide ministers with powers to regulate the flavours, packaging, and display of vapes and other nicotine products. These steps will help stop the next generation from becoming hooked on nicotine.
• Strengthen enforcement activity, allowing Trading Standards to take swifter action to enforce the law and closing loopholes. It would prevent underage sales of tobacco and vapes by providing enforcement authorities in England and Wales with the power to issue fixed penalty notices for the underage sale of tobacco and vaping products.

Speaking during debate on the King’s Speech in the House of Lords on 19 July 2024, Baroness Smith of Malvern, minister of state at the Department of Education, referred to the “strengthened” tobacco and vapes bill and said that vapes had a “key role” in helping smokers quit “but where vape manufacturers deliberately target and market vapes at children we will put a stop to such advertising”.^[23]

4. Previous Conservative government policy

The previous Conservative government expressed concern about the long-term effect of vaping on children:

Due to nicotine content and the unknown long-term harms, vaping carries risks to health and lifelong addiction for children. The health advice is clear: young people and people who have never smoked should not vape.^[24]

The government said it had “a duty to protect our children from the potential harms associated with underage vaping, while their lungs and brains are still developing”. As a result, the government consulted on a series of proposals on youth vaping, including:

• restricting vape flavours
• regulating vape packaging and product presentation
• regulating point of sale displays
• restricting the supply and sale of disposable vapes
• exploring further restrictions for non-nicotine vapes and other nicotine consumer products such as nicotine pouches
• action on the affordability of vapes, exploring a new duty on vapes

This was in addition to plans in the government’s paper ‘Stopping the start: Our new plan to create a smokefree generation’ (October 2023), which included plans to “close the loophole in our laws which allows industry to give free samples of nicotine and non-nicotine vapes (and other nicotine products) to under 18s, as well as to introduce an age restriction for non-nicotine vapes”.^[25] The consultation ran between October 2023 and December 2023, with the government publishing its response in February 2024. The consultation also looked at measures in relation to tobacco.

The government sought to implement its proposals through the Tobacco and Vapes Bill of session 2023­–24. This would also have introduced a progressive smoking ban and would have brought in measures “to reduce the appeal and availability of vapes to children” and “strengthen enforcement activity” to support implementation of these measures.^[26] Amongst its provisions, the bill would have:^[27]

• provided regulation making powers to restrict the flavours and flavour descriptions of vapes, the packaging and product presentation of vapes and the point of sale displays of vapes across the UK
• enabled the regulation of non-nicotine vapes and other nicotine products under a similar regulatory framework as nicotine vapes across the UK
• extended existing vaping restrictions around the age of sale and proxy purchasing to non-nicotine vapes in England and Wales
• provided regulation making powers to extend these restrictions to other nicotine products across the UK (and would have included regulation making powers for Northern Ireland to introduce similar restrictions)
• introduced a ban on the free distribution of vapes to under 18-year-olds in England and Wales and a regulation making power for Northern Ireland to introduce the ban (powers already exist in Scotland to enable a ban on the free distribution of nicotine vapour products, nicotine and non-nicotine)

The bill would also have introduced a provision for non-nicotine vapes and nicotine products (ie nicotine pouches) “to be notified under a similar notification system as nicotine vapes”. The bill’s explanatory notes stated that:

This will mean producers and manufacturers must notify their product to the secretary of state to supply their product on the UK market and pay a fee to do so. Producers will be required to submit certain information about their product, such as nicotine content, or toxicology data, that will be assessed by the administrator, which is currently the Medicines and Healthcare Product Regulatory Agency. The administrator will assess that the notification meets the requirements set by the regulations, and if legal and correct, will publish the notification and the product can be made available for sale.^[28]

Speaking at second reading of the bill, the then secretary of state for health and social care, Victoria Atkins, said the intention was for the bill to stop people from starting to smoke tobacco products:

The premise behind the Bill is […] —to stop the start—because there is no safe level of smoking and no safe tobacco product. In fact, it is the only product that, if consumed as the manufacturer intends, will kill two-thirds of its long-term users.^[29]

Speaking for the Labour Party, then shadow secretary of state for health and social care, Wes Streeting (now the secretary of state for health and social care), said that Labour would give its “wholehearted” support for the bill.^[30] He argued that:

[…] vaping is undoubtedly, unquestionably a useful smoking cessation tool, but we should not send the message to the country that vaping is good for our health or that it is without harmful consequences.^[31]

In response to a question about how removing certain flavours from the market could make e-cigarettes less appealing to adult smokers seeking to quit smoking tobacco, Mr Streeting said:

[…] we need to ensure that we get the regulation right on that so that we do not unwittingly deter people from stopping smoking. However, as I will come on to talk about when I come to the vaping section of the bill, there is no excuse whatsoever for the kinds of flavourings and marketing of vapes that we have seen, which I believe have been deliberately and wilfully designed to addict young people to what is, let us not forget, a harmful substance.^[32]

He contended that companies had been deliberately making products designed to appeal to children:

An estimated quarter of a million children vape today, and there is no doubt that this is the result of vaping companies’ decision to target children. On any high street in the country today, people can buy brightly coloured vapes and e-liquids with names such as “Vimto Breeze” and “Mango Ice”. They are designed, packaged, marketed and deliberately sold to children. The effect of this new nicotine addiction on our country’s young people should trouble us all.^[33]

The bill fell at the end of the 2023–24 session.

5. How is the advertising of vapes currently regulated?

The previous UK government stated that the aim of tobacco control policies in the UK has been both to reduce the uptake of smoking by young people and to encourage and support existing smokers to quit.^[34] This includes through the regulation and restriction of advertising.

The rules around the advertising of nicotine and non-nicotine containing e-cigarettes are complex and set out in different sources. The Tobacco and Related Products Regulations 2016 (the TRPR) contains provisions which prohibits the advertising of nicotine-containing electronic cigarettes which are not licensed as medicines, in certain media channels.^[35] The Committee of Advertising Practice (CAP) has explained that these prohibitions are reflected in the broadcast and non-broadcast codes, which set rules that advertisers must follow. In its guidance on the advertising of e-cigarettes, the CAP states:^[36]

The prohibitions originate in law, not from CAP policy, and have complex effects. They apply only to ads for certain types of products and only in certain media. They might also apply or not apply to ads for certain other types of product or service depending on a number of factors.^[37]

The prohibition is reflected in rule 22.12 of the non-broadcast code.^[38] Under rule 10.1.11 in the broadcast code, subject to certain exceptions such as quitting smoking campaigns, advertisements for “electronic cigarettes and refill containers or any advertisement which has the aim or direct or indirect effect of promoting such a product” are “not acceptable”.^[39]

Rule 22.12 of the non-broadcast code states:

Except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which are not licensed as medicines are not permitted in the following media:

• Newspapers, magazines and periodicals
• Online media and some other forms of electronic media^[40]

However, rule 22.12 does allow for ‘factual claims’ to be made about products on marketer’s websites:

Factual claims about products are permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.^[41]

The House of Commons Library has stated that the scope of the prohibition in rule 22 does not rule out all advertising of nicotine-containing e-cigarettes:

The scope of the prohibition in rule 22 only extends to adverts for unlicensed, nicotine containing e-cigarettes and liquids appearing in newspapers, magazines, periodicals, and online. Adverts for these products may appear in other media (subject to CAP rules about content and placement), including on an outdoor poster, in a leaflet and in the cinema.^[42]

Notwithstanding other rules in its guidance on e-cigarette advertising prohibitions, the CAP has said it considers that adverts for non-nicotine liquids, non-nicotine disposable e-cigarettes and non-disposable e-cigarettes designed to only take cartridges with non-nicotine containing fluid are “unlikely to be prohibited”.^[43]

Additional rules on the advertising of e-cigarettes are contained in both the broadcast and non-broadcast codes. For example, additional rules are set out alongside rule 22.12 in section 22 of the non-broadcast code. The CAP states that the rules 22.1 to 22.11 in section 22 apply regardless of whether the e-cigarette contains nicotine or not. The rules include:^[44]

• Rule 22.1: Marketing communications for e-cigarettes must be socially responsible.
• Rule 22.8: Marketing communications must not encourage non-smokers or non-nicotine-users to use e-cigarettes.
• Rule 22.9: Marketing communications must not be likely to appeal particularly to people under 18, especially by reflecting or being associated with youth culture. They should not feature or portray real or fictitious characters who are likely to appeal particularly to people under 18. People shown using e-cigarettes or playing a significant role should not be shown behaving in an adolescent or juvenile manner.
• Rule 22.10: People shown using e-cigarettes or playing a significant role must neither be, nor seem to be, under 25. People under 25 may be shown in an incidental role but must be obviously not using e-cigarettes.

The Advertising Standards Authority (ASA) has published specific advice by the CAP executive about electronic cigarettes and children and young people in non-broadcast advertising.^[45] This states that “there are strict rules around the advertising of e-cigarettes (“vapes”), to protect children and young persons, both in terms of the content of ads and their placement”. It features examples where the ASA had found that advertisements had breached the code. For example:

In 2023, the ASA acknowledged that an advertiser had taken steps to verify the ages of various models featured in the ad (Neafs UK Ltd, 22 March 2023); one of the models provided from a third-party photo stock was tagged as over the age of 29. However, identification documents showed that the individual would have been 24 years old at the time the ad was published. Additionally, the image of a different model was featured next to a testimonial that stated “…I can certainly say your product is soooooo great!!!”. The ASA considered that the language, punctuation and tone of that testimonial was more likely to be associated with a younger person. As such, the ad was found to be in breach.^[46]

During the committee stage of the Tobacco and Vapes Bill 2023–24, Andrea Leadsom, then parliamentary under secretary of state for health and social care, said she had written to the ASA to ensure it was enforcing existing regulations:

We know that vaping products can still be promoted in some places, such as billboards or posters, but that marketing activity must adhere to strict codes set out by the Advertising Standards Authority. For example, it must be socially responsible and not target, feature or appeal to children—cue a round of laughter. I have written recently to the ASA to ensure that it is enforcing the existing regulations.^[47]

Further detail on the rules for the advertising of e-cigarettes can be found in the House of Commons Library briefing ‘Advertising, marketing and promotion of vaping products’ (16 July 2024).

6. Read more

• House of Commons Library, ‘Advertising, marketing and promotion of vaping products’, 16 July 2024
• House of Commons Library, ‘Tobacco and Vapes Bill’, 10 April 2024
• House of Commons Library, ‘Youth vaping in England’, 12 January 2024
• House of Commons Health and Social Care Committee, ‘UK vaping industry called to account following rise in use among children’, 28 June 2023

Cover image by Roland Mey from Pixabay