Tobacco Industry Responses to Public Consultations in the UK

Background

In the United Kingdom, consultations are regulatory processes by which the government seeks input on its work, such as when developing a new policy or considering a change to existing policies, processes or practices. Consultations are formal, public, written exercises that can be launched by any government department or body.¹

Article 5.3 of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) requires Parties to protect their public health policies from the commercial and vested interests of the tobacco industry. As such, the tobacco industry and its associates should be excluded from any space or process in which they might be able to influence policy development.

In practice, this has not always been the case. The tobacco industry has been permitted to respond to public regulatory consultations – including on tobacco control – and frequently does so. Industry-linked organisations such as retail associations and free market think tanks also respond to public consultations, often echoing industry positions. The opinions of the tobacco industry and its associates are generally included in consultation summaries and outcomes.

However, UK policy on tobacco industry involvement in public consultations has been evolving over time and has varied across the constituent nations of the UK (England, Scotland, Wales, Northern Ireland). More recent consultations have generally contained a reference to Article 5.3 of the WHO FCTC, and respondents are formally asked to declare any direct or indirect links to the tobacco industry.²

Some consultation outcomes have even stated explicitly that the views of those with links to the tobacco industry have not been considered when determining government policy.

Governments and parliamentary groups and committees may also open official or unofficial reports, reviews or inquiries to consultation from interested parties. Information on some unofficial inquiries to which the tobacco industry has submitted responses may be found on the page for the All-Party Parliamentary Group (APPG) for Vaping (E-Cigarettes).

2024

Draft Environmental Protection (Single-Use Vapes) (Scotland) Regulations 2024

Between 23 February and 8 March 2024 the Scottish Government carried out a consultation titled “Draft Environmental Protection (Single-Use Vapes) (Scotland) Regulations 2024”. It followed the “Creating a smokefree generation” consultation (see section below) and was part of broader proposals to introduce a prohibition on the sale and supply of single-use e-cigarettes in Scotland.

Respondents were required to disclose any direct or indirect links to the tobacco industry. 86 respondents submitted to the consultation, 11 of which had direct links to the tobacco industry and eight of which had indirect links.³

The consultation outcome noted that responses “were in line with those received on the four nations consultation on ‘Creating a smokefree generation and tackling youth vaping’”.³ For example, 11 respondents with direct or indirect links to the tobacco industry did not support the overall policy prohibiting the sale and supply of single-use vapes. Reasons included the impact on revenue for businesses, the importance of smoking cessation measures, and the potential growth of the illicit trade in single-use e-cigarettes.³

The consultation outcome nonetheless stated:

“In accordance with the requirements of article 5.3 of the FCTC, we have not considered the views of those with links to the tobacco industry when determining our policy response and amendments to the draft Regulations”.³

Implementing the prohibition of the sale and supply of single-use vapes in Scotland: your views

Between 2 April and 14 May 2024 the Scottish Government carried out a consultation titled “Implementing the prohibition of the sale and supply of single-use vapes in Scotland: your views.” The purpose of the consultation was to seek public comment on the proposed prohibition of the sale and supply of single-use e-cigarettes.

Respondents were required to disclose any direct or indirect links to, or funding from, the tobacco industry, and to explain what these were. Out of 45 responses, four declared such links.⁴

The respondents with tobacco industry links were British American Tobacco (BAT), Imperial Brands, the Association of Convenience Stores (ACS), and the Scottish Grocers’ Federation (SGF). In their responses all either disagreed with a ban on single-use e-cigarettes (BAT, Imperial, SGF) or called for greater phase-in time (ACS). They all called for a comprehensive approach that addressed the illicit trade (BAT, Imperial, ACS, SGF), and cautioned that the interim Partial Business and Regulatory Impact Assessment both failed to provide adequate evidence and analysis to assess the proposal and take full account of the impact on adult e-cigarette users (BAT, Imperial, ACS).⁵

However, the government response noted that the views of those with links to the tobacco industry were considered neither when determining policy responses, nor when amending the draft regulations.⁴

2023

Creating a smokefree generation and tackling youth vaping: your views

Between 12 October and 6 December 2023 the UK Government carried out a consultation titled “Creating a smokefree generation and tackling youth vaping: your views”.⁶ The consultation was centred upon the three main proposals outlined in its 2023 Policy Paper: creating a smokefree generation; tackling youth vaping; and providing enforcement powers to clamp down on those irresponsibly selling tobacco products and e-cigarettes.

The consultation required respondents to disclose whether they had any direct or indirect links to, or received funding from, the tobacco industry (though no disclosure was required for links to the e-cigarette industry).

The consultation received almost 28,000 responses. 307 respondents disclosed links to the tobacco industry.⁷ The views of these respondents were summarised separately. The consultation outcome nonetheless noted “we have not considered these views when determining our policy response due to the vested interests of the tobacco industry”.⁷

Industry and industry-linked organisations’ objections to the consultation took two forms. Firstly, there was broad disagreement regarding the content of the proposed legislation. Imperial Brands and Japan Tobacco International (JTI) both disagreed with increasing the age of sale for tobacco products, and that all tobacco products, cigarette papers and herbal products should be covered in the new legislation. JTI also disagreed that the UK Government and devolved administrations should restrict e-cigarette flavours, and that there should be restrictions on the sale and supply of disposable e-cigarettes.⁸⁹

In response to the consultation, British American Tobacco (BAT) published a briefing stating its opposition to restrictions on e-cigarette flavours and a ban on single use e-cigarettes. It also called for increased funding for UK Border Force and Trading Standards to enforce regulations.¹⁰

Similar arguments were made by Philip Morris International (PMI), which argued that the target of making the UK smokefree by 2030 could only be achieved if a range of “less harmful alternatives” to smoking were embraced, such as Heated Tobacco Products (HTPs).¹¹

The consultation proposals were also opposed by industry-linked organisations including the Association of Convenience Stores (ACS),¹² Consumer Choice Center (CCC),¹³ the smokers’ rights group Forest,¹⁴ and the UK Vaping Industry Association (UKVIA).¹⁵ Free market think-tanks including the Institute of Economic Affairs (IEA) also expressed their opposition. Objections included claims that the proposed legislation was discriminatory based on age; it treated adults like children; it would be unworkable and impossible to police; it would have unintended consequences, including increased cigarette smuggling; and it would drive e-cigarette users back to cigarettes.¹⁶

The second objection was procedural. In a letter to the Department of Health and Social Care, Philip Morris Limited (PML – PMI’s UK subsidiary) stated that the consultation was unfair and unlawful because it failed to give adequate information or reasons, failed to permit a proper response, and various aspects of the policy that were the subject of the consultation were pre-determined. For these reasons, PML (unsuccessfully) called for a judicial review.¹⁷

BAT also raised concerns to the DHSC in a letter. This noted that the consultation “is not being conducted in a procedurally fair manner”, and “is being conducted without adequate information concerning the evidential basis for the proposals or adequate opportunity for our clients to engage with the evidence base for the proposals”.¹¹

The government response to the consultation was contrary to the recommendations of the tobacco industry and associated organisations. It committed to legislate to:

• make it an offence for anyone born on or after 1 January 2009 to be sold tobacco products
• restrict e-cigarette flavours
• restrict how e-cigarettes are displayed in stores
• and introduce new fixed penalty notices for breaches of age of sale.⁷

2022

The Khan review

In June 2022, the Office for Health Improvement and Disparities (OHID) published ”The Khan review: Making smoking obsolete”.¹⁸ The purpose of the review was to determine whether the government’s tobacco control policies would allow it to achieve its ambition of being smokefree by 2030.¹⁸

The review received written submissions from the ‘Big Four’ tobacco companies BAT, JTI, PMI, and Imperial Brands. Although their responses were not summarised collectively within the report, they were made publicly available. They called for an appropriate regulatory framework that embraced “less harmful alternatives to smoking”; expressed concern surrounding false media stories regarding HTPs; highlighted the need for better education, information campaigns, and relaxed advertising laws to combat this; as well as the need for tougher penalties to tackle the illicit trade.¹⁹

Industry-linked organisations also submitted evidence including JUUL Labs (then part owned by U.S. tobacco giant Altria); Forest; tobacco industry trade association ITPAC; and the Tobacco Manufacturer’s Association (TMA). These submissions were broadly consistent with those provided by the ‘Big Four’. As Imperial Brands (IMB) stated in its submission:

“IMB is a member of the Tobacco Manufacturers Association (TMA) and UK Vaping Industry Association (UKVIA) and has contributed to the TMA and UKVIA submissions to this call for evidence”.¹⁹

Although Javed Khan, the report’s author, did not meet face-to-face with the tobacco industry as part of the review, he did meet with the ACS, which has longstanding links to the tobacco industry.²⁰ At the meeting, the ACS noted the decline in tobacco sales, the value in age 18 restricted consistency which offers clarity to retailers, the effectiveness of Challenge 25, and the need to better tackle illicit tobacco sales.¹⁹ ACS has lobbied against proposed tobacco endgame policies in the UK.

In April 2023, the UK government unveiled a new “swap to stop” scheme, under which one million smokers would be provided with a free vaping starter kit, alongside behavioural support, to help them quit smoking. In the press release announcing the scheme, the government stated that the Khan review had “informed the measures set out today”.²¹

• For more information, see Tobacco Industry Interference with Endgame Policies

Tightening rules on advertising and promoting vaping products

Between 3 February and 29 April 2022 the Scottish Government carried out a consultation titled ”Tightening rules on advertising and promoting vaping products”.²² Its purpose was to seek views:

“on a number of restrictions on the advertising and promotion of vaping products which are aimed at reducing the visibility of them to children, young people and adult non-smokers”.²²

All respondents to the consultation were required to disclose any direct or indirect links to, or funding from, the tobacco industry. The consultation methodology noted that equal weighting was given to all responses.²³

Out of a total of 757 responses, 15 declared direct tobacco industry links and nine had indirect links. Submissions were provided by the ‘Big Four’ tobacco companies, JUUL Labs, vape shops, e-liquid producers, vape trade and consumer organisations, and organisations with longstanding links to the tobacco industry including the ACS, the Scottish Grocers’ Federation (SGF), and the Consumer Choice Center (CCC).

The final consultation report observed a broad consensus among responses submitted by the tobacco companies and industry-linked actors, noting that “those organisations who are less likely to support the proposals are the vaping sector, tobacco industry, and other related organisations (e.g. those that sell tobacco and vaping related products)”.²³ In contrast, local government and health organisations were found to be generally supportive of the government’s proposals.

In addition to submitting evidence to the consultation, tobacco companies and industry-linked organisations lobbied Members of the Scottish Parliament (MSPs) on the proposed legislation. PML met with MSPs from the Scottish National Party (SNP) and the Conservative Party on 17 occasions to discuss the consultation.²⁴

Ahead of the consultation being announced, in November 2021, the SGF lobbied Maree Todd MSP, Minister for Public Health, Women’s Health and Sport. The Register recorded that the purpose of the lobbying was “to discuss Scottish Government proposals to consult on the promotion and marketing of Nicotine Vapour Products”, with the SGF advising the Minister “that there should be no in-store point of sale restrictions placed on Nicotine Vapour Products”.²⁵

In February 2021 and July 2022, the SGF commissioned Diffley Partnership to conduct two surveys. These surveys, which found positive perceptions of vaping amongst consumers, were subsequently used by the SGF in its campaigning activities, particularly around the consultation. The SGF urged the Scottish government to embrace vaping as a means of achieving its 2034 smoke-free target.²⁶²⁷

UKVIA, of which all four transnational tobacco companies were at the time members, reported lobbying four MSPs through Bristol-based agency JBP Associates. In two of these meetings UKVIA reported discussing the “recently published consultation on tightening the restrictions on advertising and promotion of vaping products”.²⁸ UKVIA announced in September 2023 that it had ended its relationship with the ‘Big Four’ tobacco companies and committed to rejecting tobacco industry funding in future. However, it still lists VPZ – an e-cigarette company which received a loan from PML – as a full member.²⁹

The Scottish Government published a report summarising the consultation responses in September 2022. It noted that the responses “will help us decide how best to protect the public from potential harms”, and that “together with the analysis report, and responses from the consultation as part of the 2016 Act, will inform and shape the final Vaping restriction regulations”.³⁰

Tobacco Control Strategy for Wales and Delivery Plan

Between 8 November 2021 and 31 March 2022 the Welsh Government undertook a consultation titled “A smoke-free Wales”, which included the detailed delivery plan “Towards a smoke-free Wales 2022-2024”. The purpose of the consultation was to gather public views on the government’s strategy for achieving a smoke-free Wales by 2030.

246 responses were submitted. Of these, three were reported to be from the tobacco industry, three from the vaping industry, and one a tobacco lobby group.³¹ These included JTI, Imperial Brands, PML, Forest, UKVIA, and JUUL Labs.

The responses from these groups were included collectively in the consultation response. Most prominent was the argument that although each UK nation has its own health agenda:

“a coordinated response is vital to ensure that adult smokers across the UK all have the same opportunity to access potentially reduced harm alternatives, and that these alternatives are effective and successful”.³¹

The consultation response nonetheless noted that in line with Article 5.3 of the WHO FCTC, “these comments… will not be taken into consideration as the strategy and delivery plan are further developed”.³¹

2021

Tobacco and Related Products Regulations 2016 and the Standardised Packaging of Tobacco Products Regulations 2015

Between 29 January and 19 March 2021, the Department of Health and Social Care (DHSC) carried out a consultation titled “A consultation on the Tobacco and Related Products Regulations 2016 and the Standardised Packaging of Tobacco Products Regulations 2015”.³² This was undertaken as part of a legal duty to conduct a post-implementation review of the legislation.

The purpose of the review was to give an opportunity to:

“provide feedback on the effectiveness of the legislation in achieving its objectives along with any unintended consequences that may have occurred.”³²

The consultation received 5,254 responses. Respondents were required to identify which stakeholder group they belonged to. Businesses made up 1.1% (58) of all respondents.³³ Although the consultation was carried out as a single activity, the results were presented in two separate reports.

The ”Post-Implementation Review of Tobacco Legislation: The standardised packaging of tobacco products regulations 2015” showed that on balance, responses from business disagreed that the appearance of cigarette packaging had been an effective way to protect young people from taking up smoking, disagreed that the appearance of cigarette packaging had helped existing smokers quit, and agreed that existing regulations should not be extended to other tobacco products.³³

Considering the evidence, the report stated:

“regulations have met their original objectives, without producing any unintended consequences, and could not be achieved through alternative regulatory measures”.³³

The “Post-Implementation Review of Tobacco Legislation: The tobacco and related products regulations 2016” found that, on balance, the responses from businesses disagreed that the prohibition of characterising flavours has helped smokers to quit, disagreed that the prohibition of characterising flavours has deterred young people from taking up smoking, and think that existing regulations have discouraged smokers considering switching to e-cigarettes.³⁴

Considering the evidence, the report noted that “the TRPR regulations have met their original objectives and they could not be better achieved through alternative measures”.³⁴ The report did note, however, that there had been some unintended consequences. For example, some respondents suggested the flavour ban was ineffective because smokers were using other products to flavour their cigarettes.³⁴

2020

Sanctions to tackle tobacco duty evasion

From 1 December 2020 to 23 February 2021 HM Revenue & Customs carried out a consultation titled ”Sanctions to tackle tobacco duty evasion”.³⁵ Its purpose was to seek views on:

• “proposals for new sanctions linked to the UK’s tobacco track and trace system, and
• extending HM Revenue & Customs (HMRC) traceability enforcement powers to Trading Standards Officers”³⁵

The consultation responses and outcome were published in July 2021. Out of 37 total responses, 11 were from manufacturers of tobacco products and their representative bodies including British American Tobacco (BAT), Imperial Brands, Japan Tobacco International (JTI), Philip Morris Limited (PML), the Association of Convenience Stores (ACS), the Federation of Independent Retailers (formerly the National Federation of Retail Newsagents), and the Tobacco Manufacturers Association (TMA).³⁶

Although responses were categorised, the tobacco industry’s responses were not summarised separately throughout. The consultation did note, however, that all respondents supported Trading Standards officers having the ability to issue Track and Trace System (TTS) compliance notices and deactivate Economic Operator Identifiers (EOIDs), as well as the introduction of a new penalty model. Tobacco manufacturers also called for even tougher penalties than those proposed in the consultation.³⁶

In response, the government committed to giving Trading Standards new powers through a two-stage process, and to both refine the penalty model to ensure a tougher approach and open a consultation on a new updated model.³⁶

Consultation on duty-free and tax-free products

Between 11 March and 20 May 2020 HM Treasury and HM Revenue & Customs carried out a consultation titled “A consultation on the potential approach to duty- and tax-free goods arising from the UK’s new relationship with the EU”.³⁷ Given the complexity of any changes associated with duty-free rules the consultation announced that it was “seeking views from stakeholders to understand the impacts that any changes could have, to help inform any future policy decisions.”³⁷

The consultation received 73 responses, including from BAT, Imperial Brands, JTI, and Philip Morris International (PMI). Their responses were not summarised separately.³⁸

The summary of responses showed that of the 43 stakeholders who gave a view on personal allowances for alcohol and tobacco, 21 thought these should reflect the current allowances applicable to passengers entering the UK from non-EU countries. Three respondents felt that tobacco allowances should be set at zero on health grounds, two felt tobacco allowances should be reduced to the minimum possible level, and one felt that both tobacco and alcohol allowances should be set at zero.³⁸

While committing to significantly increasing the allowance levels for alcohol, the government maintained non-EU allowances for tobacco. It also announced a new category of allowance of 200 sticks of “heated tobacco”, consistent with the existing allowance of 200 cigarettes.³⁸

2019

European Tobacco Products Directive

Between 11 February and 11 March 2019, HM Revenue & Customs (HMRC) conducted a technical consultation. This concerned secondary legislation relating to the Tobacco Products Directive 2014 and its implementing legislation which introduced track and trace, and security features for cigarettes and hand-rolling tobacco.

The consultation sought views on regulation which proposed to:

• “provide a prohibition from supplying tobacco products which do not carry the required tracking and security markings
• ensure products that are not compliant are liable to forfeiture
• provide sanctions for non-compliance
• facilitate the application of traceability codes and security markings to packs”³⁹

In response to the consultation, HMRC received 21 responses from the tobacco industry. The consultation outcome stated:

“Most respondents supported the need for robust sanctions and, as a result, minor changes have been made to the circumstances in which a non-compliant business could be prevented from trading in tobacco products.”³⁹

The Tobacco Products (Traceability and Security Features) Regulations 2019 came into force on 20 May 2019.³⁹

2017

Taxation of heated tobacco products

Between 20 March and 12 June 2017 HM Treasury conducted a consultation titled ”Tax treatment of heated tobacco products”.⁴⁰ The purpose of the consultation was to “set out the case for changes to the tobacco duty regime in response to the development of heated tobacco products”,⁴⁰ which would add a sixth classification of product to the existing five which attract different duty levels. E-cigarettes were excluded from the consultation as they do not contain tobacco.

The consultation received 31 responses, more than half of which were from tobacco manufacturers and retailers (16).⁴¹ Tobacco industry respondents included British American Tobacco (BAT), Imperial Brands, Japan Tobacco International (JTI), and Philip Morris Limited (PML). Industry-linked organisations also provided responses, including the Association of Convenience Stores (ACS), the Institute of Economic Affairs (IEA), and the Scottish Grocers’ Federation (SGF).

Some of the opinions of the tobacco manufacturers aligned with the outcome of the consultation.

For example, the Treasury’s summary of the response to the consultation states:

“Manufacturers generally disagreed with the requirement for a heated tobacco product to be encapsulated, as encapsulation does not affect their essential nature as a heated tobacco product”.⁴¹

The government’s response was “to remove the requirement for the tobacco to be encapsulated” with a commitment to “consider how the use of such products should be restricted to heated tobacco devices”.⁴¹

The consultation response also noted the government was conscious of the fact that “depending on the duty rates, there could be an advantage to designing products that were defined as heated tobacco products but could be smoked”.⁴¹ It nonetheless stated that “if a product is capable of being smoked without further industrial processing it would likely fall within the existing duty categories.”⁴¹

In 2019, a new category of tobacco duty (“tobacco for heating”) was introduced and added to Excise Notice 476: Tobacco Products Duty.⁴² This was consistent with what the majority of respondents to the consultation had proposed.

Tobacco Tactics Resources

• Harm reduction
• Plain Packaging
• Think Tanks
• Tobacco Industry Interference with Endgame Policies
• Tobacco Industry Tactics
• Track and Trace
• UK Tobacco Industry Interference Index

External Resources

• The 7 Lobbying Techniques of Big Tobacco